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Exhibit 1.1(a)
THE EQUITABLE COMPANIES INCORPORATED
Debt Securities
Underwriting Agreement
April 1, 1998
To the Representatives of the
several Underwriters named in
the respective
Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Equitable Companies Incorporated, a Delaware
corporation (the "Company"), proposes to enter into one or more pricing
agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions or deletions as the parties thereto may agree, and, subject to the
terms and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting
the "Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular series of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (such indenture including any supplement thereto
relating to the Designated Securities, the "Indenture") identified in such
Pricing Agreement. The standard provisions set forth herein shall be
incorporated by reference in any Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Designated Securities, for whom the
firms designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as representatives
(the "Representatives"). The term "Representatives" also refers to a single firm
acting
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as sole representative of the Underwriters and to an Underwriter or Underwriters
who act without any firm being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the Company to
sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any of
the Securities and the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic or facsimile communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-45415) in respect of the Securities and Amendment No. 1
thereto have been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement as
so amended and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by
reference in the prospectus contained therein, to the
Representatives for delivery to each of the Underwriters, have
been declared effective by the Commission in such form; no
other document with respect to such registration statement or
document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other
than any prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), each in the
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form heretofore delivered to the Representatives, or except as
permitted by Section 5(a) hereof); and no stop order
suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time
such part of the registration statement became effective but
excluding any Statement of Eligibility on Form T-1, each as
amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
"Registration Statement", provided that if the Company files
an abbreviated registration statement pursuant to Rule 462(b)
under the Act (the "Rule 462(b) Registration Statement"), then
any reference herein to the term Registration Statement shall
be deemed to include such Rule 462(b) Registration Statement;
the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for
filing, with the Commission, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the
Act in
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accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in
the Prospectus or the Prospectus as amended or supplemented;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the Act and
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
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Representatives expressly for use in the Prospectus or the
Prospectus as amended or supplemented;
(d) Neither the Company nor any of its
Significant Subsidiaries (as defined below) has sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in the Prospectus and other than any such loss or interference
which would not, individually or in the aggregate, have a
material adverse effect on the assets, business, financial
position, equity, results of operations or prospects of either
the Investment Subsidiaries Group (as defined below) or the
Insurance Group (as defined below) or of The Equitable (as
defined below) considered as a consolidated entity (a
"Material Adverse Effect"); and, since the date of the latest
financial statements included or incorporated by reference in
the Prospectus, there has not been any increase in the
consolidated long-term debt of The Equitable (other than
long-term debt related to consolidated real estate joint
ventures which is non-recourse to the Company or any of its
Insurance Subsidiaries (as defined below) and other than
long-term debt that may have been incurred by The Equitable
not in excess of the amount to be set forth in Schedule II of
the Pricing Agreement applicable to the Designated Securities
("Other Permitted Debt")), or any material adverse change, or
any development involving a prospective material adverse
change, in or affecting (X) the assets, general affairs,
management, financial position or equity of either the
Alliance Group or the DLJ Group, (Y) the assets, general
affairs, management, financial position, equity or results of
operations of either the Investment Subsidiaries Group or the
Insurance Group, or of The Equitable considered as a
consolidated entity or (Z) the statutory capital or surplus of
The Equitable Life Assurance Society of the United States
("Equitable Life"), in each case otherwise than as set forth
or contemplated in the Prospectus. As used herein,
"Significant Subsidiaries" shall mean Equitable Life, The
Equitable of Colorado, Alliance Capital Management Corporation
("ACMC"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. ("DLJ"),
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJSC"),
Alliance Capital Management L.P. ("Alliance"), ACMC, Inc.
("ACMCI"), Equitable Holdings, LLC ("EHLLC") and Equitable
Investment Corporation ("EIC"); the "DLJ Group"
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shall mean DLJ and its consolidated subsidiaries, considered
as a whole; the "Investment Subsidiaries Group" shall mean the
Alliance Group, the DLJ Group and EHLLC and its consolidated
subsidiaries including without limitation EIC, considered as a
whole; the "Insurance Group" shall mean Equitable Life and its
subsidiaries which are engaged in the life insurance business,
considered as a whole; the "Alliance Group" shall mean
Alliance and its consolidated subsidiaries, ACMC and ACMCI
considered as a whole; and "The Equitable" shall mean the
Company and its consolidated subsidiaries considered as a
whole;
(e) Each of the Company and its Significant
Subsidiaries has good and insurable title in fee simple to all
real property owned by it (other than real property held
solely for investment purposes) and good title to all personal
property owned by it which in any such case is material to any
of the Alliance Group, the DLJ Group, the Investment
Subsidiaries Group or the Insurance Group, or to The
Equitable, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not, individually or in the
aggregate, have a Material Adverse Effect; and any real
property and buildings held under lease by the Company or any
Significant Subsidiary are held under valid, subsisting and
enforceable leases with such exceptions as do not,
individually or in the aggregate, have a Material Adverse
Effect;
(f) Each of the Company and its Significant
Subsidiaries has been duly organized and is validly existing
as a corporation, partnership or limited liability company in
good standing under the laws of its jurisdiction of
organization; each of the Company and its Significant
Subsidiaries has the power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign
corporation or partnership for the transaction of business and
is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification except where the failure
to be so qualified or in good standing would not, individually
or in the aggregate, have a Material Adverse Effect;
(g) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued
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and are fully paid and non-assessable; if the Designated
Securities are convertible, the outstanding capital stock of
the Company conforms in all material respects to the
description thereof contained or incorporated by reference in
the Prospectus as amended or supplemented; and all of the
issued shares of capital stock or partnership or member
interests of each Significant Subsidiary have been duly and
validly authorized and issued and are fully paid and
non-assessable, and except as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(h) As of the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof) the
Indenture will have been duly authorized, executed and
delivered by the Company, and will be a valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, rehabilitation, fraudulent
transfer, reorganization, moratorium and similar laws relating
to the creditors of insurance companies or affecting the
rights of creditors generally and by general equitable
principles; the Indenture conforms in all material respects to
the description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
and the Indenture has been duly qualified under the Trust
Indenture Act;
(i) The Designated Securities have been duly
authorized and, when Designated Securities are executed and
authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters against payment
therefor as provided by this Agreement and the Pricing
Agreement with respect to such Designated Securities, such
Designated Securities will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as
such enforceability may be limited by applicable bankruptcy,
insolvency, rehabilitation, fraudulent transfer,
reorganization, moratorium and similar laws relating to the
creditors of insurance companies or affecting the rights of
creditors generally and by general equitable principles; and
such Designated Securities will conform in all material
respects to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities;
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(j) If the Designated Securities are
convertible, the shares of Common Stock issuable upon
conversion of the Designated Securities have been duly
authorized and reserved for issuance upon such conversion and,
when issued upon conversion of the Designated Securities in
accordance with the terms of the Indenture, will have been
validly issued and will be fully paid and non-assessable and
the issuance of such shares of Common Stock will not be
subject to any presently existing preemptive or other similar
rights;
(k) This Agreement and the Pricing Agreement
with respect to such Designated Securities has been duly
authorized, executed and delivered by the Company;
(l) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under the Designated Securities, the Indenture, this Agreement
and any Pricing Agreement, the issuance and sale of the
Designated Securities to the Underwriters, if the Designated
Securities are convertible, the issuance of Common Stock on
conversion of the Designated Securities, the compliance by the
Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, except for such conflicts,
breaches, violations or defaults that would not, individually
or in the aggregate, have a Material Adverse Effect, nor will
such action result in any violation of (A) any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for such
violations that would not, individually or in the aggregate,
have a Material Adverse Effect, (B) the provisions of the
charter or by-laws (or with respect to Alliance, other
organizational documents) of the Company or any Significant
Subsidiary or (C) any term or provision of Equitable Life's
Plan of Reorganization, as adopted November 27, 1991 and
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as amended by Amendment No. 1 thereto on December 31, 1991
by the Board of Directors of Equitable Life (the "Plan");
(m) All consents, approvals, authorizations,
orders, registrations or qualifications of or with any court
or governmental agency or body of the United States or any
state thereof required for the issuance and sale of the
Designated Securities or if the Designated Securities are
convertible, the issuance of Common Stock upon conversion of
the Designated Securities have been obtained and are in full
force and effect, except as may be required under state
securities or Blue Sky laws or state insurance securities laws
in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(n) Each of the Company and the Significant
Subsidiaries has all necessary consents, licenses,
authorizations, approvals, orders, certificates and permits
(collectively, the "Consents") of and from, and has made all
filings and declarations (collectively, the "Filings") with,
all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in
or contemplated by the Prospectus, except where the failure to
obtain any such Consent or to make any such Filing would not,
individually or in the aggregate, have a Material Adverse
Effect; all such Consents and Filings are in full force and
effect and neither the Company nor any Significant Subsidiary
has received any notice of any event, inquiry, investigation
or proceeding that would reasonably be expected to result in
the suspension, revocation or limitation of any such Consent
or otherwise impose any limitation on the conduct of the
business of the Company or any Significant Subsidiary, except
as set forth in the Prospectus and except for any such
suspension, revocation or limitation which would not,
individually or in the aggregate, have a Material Adverse
Effect, and, to the best of the Company's and the Significant
Subsidiaries' knowledge, there is no sustainable basis for any
such suspension, revocation or limitation;
(o) Each of Equitable Life and its subsidiaries
which are engaged in the life insurance business (the
"Insurance Subsidiaries") is duly licensed or authorized to
conduct such business under the insurance laws of each
jurisdiction in which it conducts such business so as to
require such licensing or
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authorization, except where the failure to be so licensed or
authorized would not, individually or in the aggregate, have a
material adverse effect on the assets, business, financial
position, equity, results of operations or prospects of the
Insurance Group; all such licenses or authorizations are in
full force and effect and neither the Company nor Equitable
Life nor any Insurance Subsidiary has received any notice of
any event, inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation
or limitation of any such licenses or authorizations or
otherwise impose any limitation on the conduct of the business
of Equitable Life or any Insurance Subsidiary, except any such
suspension, revocation or limitation which would not,
individually or in the aggregate, have a material adverse
effect on the assets, business, financial position, equity,
results of operations or prospects of the Insurance Group,
and, to the best of the Company's, Equitable Life's and the
Insurance Subsidiaries' knowledge, there is no sustainable
basis for any such suspension, revocation or limitation; each
of the Company, Equitable Life and the Insurance Subsidiaries
is in compliance with, and conducts its businesses in
conformity with, all applicable insurance laws and
regulations, except where the failure to so comply or conform
would not have a material adverse effect on the assets,
business, financial position, equity, results of operations or
prospects of the Insurance Group; and the Company or Equitable
Life have disclosed to the Underwriters all pending
significant examinations by, and all significant examinations
which have been completed and filed since January 1, 1997 by,
any governmental authority having jurisdiction to regulate the
insurance operations of Equitable Life or any Insurance
Subsidiary;
(p) None of the Company or any Significant
Subsidiary (other than certain separate accounts of Equitable
Life) is required to be registered as an investment company
with the Commission or in any jurisdiction where it conducts
business; each of the Company and the Significant Subsidiaries
is registered in all capacities with each federal, state,
local or other governmental authority and is registered with,
a member of, or a participant in, each self-regulatory
organization, in each case, as is necessary to conduct its
business as described in or contemplated by the Prospectus,
except where the failure to be so registered, or to be a
member or participant, would not, individually or in the
aggregate, have a Material Adverse Effect; all such
registrations and memberships are in full force and effect and
neither the Company
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nor any of its Significant Subsidiaries has received any
notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension,
revocation or limitation of any such registrations or
memberships, except any such suspension, revocation or
limitation which would not, individually or in the aggregate,
have a Material Adverse Effect; and, to the best of the
Company's and the Significant Subsidiaries' knowledge, there
is no sustainable basis for any such suspension, revocation or
limitation; each of the Company and the Significant
Subsidiaries is in compliance with all applicable laws, rules,
regulations, orders, by-laws and similar requirements in
connection with such registrations or memberships, as the case
may be, except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q) Other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by
government authorities or threatened by others;
(r) Price Waterhouse LLP, who have certified the
financial statements of the Company incorporated by reference
in the Registration Statement and the Prospectus, are
independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(s) None of the Company or any Significant
Subsidiary has received written notice that it is not in
compliance with, and, to the best of the Company's and each
Significant Subsidiary's knowledge, each is in compliance
with, any applicable foreign, federal, state or local laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), and
each of the Company and its Significant Subsidiaries has
received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business
and is in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance
with
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Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a Material Adverse
Effect; the costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up or closure of properties and any potential
liabilities to third parties) associated with compliance with
Environmental Laws would not, singly or in the aggregate, have
a Material Adverse Effect;
(t) The financial statements of the Company and
its consolidated subsidiaries, together with the related
notes, incorporated by reference in the Registration Statement
and the Prospectus (or any amendment or supplement thereto),
comply in all material respects with the requirements of the
Act and the Exchange Act and the rules and regulations of the
Commission thereunder and present fairly in all material
respects the financial position, the results of operations and
the changes in cash flows of such entities in conformity with
generally accepted accounting principles at the respective
dates or for the respective periods to which they apply; and
the financial and statistical information and data included or
incorporated by reference in the Registration Statement and
the Prospectus are presented fairly in all material respects;
(u) The Company and its Significant Subsidiaries
own, possess, have adequate rights to use or can acquire on
reasonable terms, all licenses, logos, copyrights, trademarks,
service marks and trade names which are material in the United
States to the Alliance Group, the DLJ Group, the Investment
Subsidiaries Group or the Insurance Group or to The Equitable
considered as a consolidated entity, and neither the Company
nor any Significant Subsidiary has received any notice of
infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in any Material Adverse Effect; and
(v) The pro forma condensed consolidated balance
sheet and condensed consolidated statements of earnings and
the related notes thereto, if any, included or incorporated by
reference in the Registration Statement and the Prospectus
have been prepared in all material respects in accordance with
the applicable
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requirements of Rule 11-02 of Regulation S-X promulgated under
the Exchange Act, have been compiled on the pro forma basis
described therein, and in the opinion of the Company, the
assumptions used in the preparation thereof were reasonable at
the time made and the adjustments used therein are based upon
good faith estimates and assumptions believed by the Company
to be reasonable at the time made.
To the extent the foregoing representations and warranties contained in
this Section 2 relate to the issuance of Common Stock upon the conversion of the
Designated Securities, the Company has assumed, with your approval, that any
such issuance of the Designated Securities and the Common Stock will not result
in a violation of any state insurance holding company statute relating to the
acquisition of control of the Company or any of its subsidiaries.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer in immediately available funds to an account maintained by the Company,
all in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or
supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives (which
approval will not be unreasonably withheld) and to file such
Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business
day following the execution and
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delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment
or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be reasonably
disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with
the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the
issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, to use
promptly its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such
action as the Representatives may reasonably request to
qualify such Securities for offering and sale under the
securities laws of such United States jurisdictions as the
Representatives may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete
the distribution of such Securities, provided that in
connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
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(c) To furnish the Underwriters with copies of
the Prospectus as amended or supplemented in such quantities
and by such time as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time
to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance; provided, however, that
in case any Underwriter is required to deliver a prospectus in
connection with sales of the Designated Securities at any time
more than nine months after the date of the Pricing Agreement
related to such Designated Securities, the cost of such
preparation and the furnishing of such amended or supplemented
Prospectus shall be borne by the Underwriters of such
Designated Securities;
(d) To make generally available to its
securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) During the period beginning from the date of
the Pricing Agreement for such Designated Securities and
continuing to and including the later of (i) the termination
of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the
Time of Delivery for
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such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of
Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of
the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky Memoranda, and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws and state insurance securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky Memoranda; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture, the
Securities and the other transactions contemplated by this Agreement; (viii) the
fees and expenses of any transfer or paying agent or registrar of the Company in
connection with the Designated Securities (including the fees and expenses of
counsel for such transfer or paying agent or registrar); (ix) any advertising
expenses connected with the solicitation of offers to purchase and the sale of
Designated Securities so long as such advertising expenses have been approved by
the Company; and (x) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all
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representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery for such Designated Securities, with respect
to this Agreement and the Pricing Agreement for such Designated
Securities, the Indenture, the Designated Securities being delivered at
such Time of Delivery, the Registration Statement and the Prospectus,
and such other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware and Equitable Life is duly
incorporated and is validly existing as a stock life insurance
company in good standing under the laws of the State of New
York;
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(ii) Each of the Company and Equitable Life has
full corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(iii) The Company has an authorized capitalization
as set forth in the Prospectus as amended or supplemented and
all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities being delivered at
such Time of Delivery have been duly authorized, executed and
delivered by the Company;
(v) The Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, rehabilitation,
fraudulent transfer, reorganization, moratorium and similar
laws relating to creditors of insurance companies or affecting
the rights of creditors generally and by general equitable
principles; and the Indenture has been duly qualified under
the Trust Indenture Act;
(vi) The Designated Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture, will be valid and
binding obligations of the Company and entitled to the
benefits of the Indenture, enforceable in accordance with
their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, rehabilitation, fraudulent
transfer, reorganization, moratorium and similar laws relating
to the creditors of insurance companies or affecting the
rights of creditors generally and by general equitable
principles; [if the Designated Securities are convertible:]
the shares of Common Stock issuable upon conversion of the
Designated Securities have been duly authorized and reserved
for
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issuance upon such conversion and, when issued upon conversion
of the Designated Securities in accordance with the terms of
the Indenture, will have been validly issued and will be fully
paid and non-assessable, and the issuance of such shares of
Common Stock will not be subject to any presently existing
preemptive or other similar rights;
(vii) The Designated Securities and the Indenture
conform in all material respects as to legal matters to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(viii) All consents, approvals, authorizations,
orders, registrations or qualifications of or with any court
or governmental agency or body of the United States or the
States of Delaware (insofar as the General Corporation Law of
such state is concerned) and New York required by the Company
for the issuance and sale of the Designated Securities being
delivered at such Time of Delivery to the Underwriters [if the
Designated Securities are convertible:] and the issuance of
Common Stock upon conversion of the Designated Securities have
been obtained and are in full force and effect, except that
such counsel need express no opinion as to state securities or
Blue Sky laws or state insurance securities laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(ix) If applicable, the statements in the
Prospectus as amended or supplemented under the captions
"Certain Federal Income Tax Considerations", "Certain Federal
Income Tax Considerations for Foreign Holders" and any other
captions specified in Schedule II to the Pricing Agreement
applicable to the Designated Securities, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize
in all material respects the matters referred to therein with
respect to such legal matters, documents or proceedings;
(x) The Registration Statement has become
effective under the Act, and to the best of such counsel's
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knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceeding for that purpose has been initiated or
threatened by the Commission; and the Prospectus as amended or
supplemented was filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act; and
(xi) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company prior
to the date of such opinion (other than the financial
statements, schedules and notes thereto and other financial
and statistical information contained or incorporated by
reference therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder.
In rendering such opinion, Debevoise & ▇▇▇▇▇▇▇▇ may state that they
express no opinion as to the laws of any jurisdiction other than the Federal
laws of the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware. Debevoise & ▇▇▇▇▇▇▇▇ may also assume,
to the extent their opinion relates to the issuance of Common Stock upon the
conversion of Designated Securities that any such issuance of Common Stock will
not result in a violation of any state insurance holding company statute
relating to the acquisition of control of the Company or any of its
subsidiaries.
Debevoise & ▇▇▇▇▇▇▇▇ shall also have stated that, while they have not
themselves checked the accuracy and completeness of, or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement and the
Prospectus as amended or supplemented, except to the limited extent stated in
paragraphs (vii) and (x) above, in the course of their review and discussion of
the contents of the Registration Statement and the Prospectus as amended or
supplemented, with certain officers and employees of the Company and Equitable
Life and the Company's independent accountants, but without independent check or
verification, no facts have come to their attention which cause them to believe
that the Registration Statement (including the prospectus contained therein) or
any further amendment or supplement thereto made by the Company prior to the
Time of Delivery, at the time it became effective (other than the financial
statements, schedules and notes thereto and other financial and statistical
information
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contained or incorporated by reference therein and except for the Statement of
Eligibility on Form T-1 of the Trustee, as to which such counsel need express no
belief) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading, or that the Prospectus as amended or
supplemented or any further amendments or supplements thereto made by the
Company prior to the Time of Delivery of such Designated Securities (other than
the financial statements, schedules and notes thereto and other financial and
statistical information contained or incorporated by reference therein and
except for the Statement of Eligibility on Form T-1 of the Trustee, as to which
such counsel need express no belief) contained as of its date or contains as of
the Time of Delivery any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading.
(d) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and General Counsel
of the Company, or other counsel satisfactory to the Representatives, shall have
furnished to the Representatives his written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Significant Subsidiaries other
than Equitable Life, Alliance and EHLLC is a corporation duly
incorporated, Alliance is a limited partnership duly
authorized and EHLLC is a limited liability company duly
organized and each of the Significant Subsidiaries other than
Equitable Life is validly existing and in good standing under
the laws of its jurisdiction of organization;
(ii) Each Significant Subsidiary other than
Equitable Life has the full power and authority (corporate or
other) to own its properties and conduct its business as
described in the Prospectus as amended or supplemented
relating to the Designated Securities; and each of the Company
and the Significant Subsidiaries is duly qualified as a
foreign corporation or partnership to transact business and is
in good standing under the laws of each jurisdiction in which
it owns or leases properties, or conducts any business, so as
to require such qualification except where the failure to be
so qualified or in good standing would not, individually or in
the aggregate, have a material adverse effect on the assets,
business, financial position, equity or results of operations
of The Equitable (a "Material Adverse Effect on The
Equitable");
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(iii) Each of the Company and the Significant
Subsidiaries has all necessary Consents of and from, and has
made all Filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations
(as defined in the Exchange Act) to own, lease, license and
use its properties and assets and to conduct its business in
the manner described in or contemplated by the Prospectus as
amended or supplemented relating to the Designated Securities,
except where the failure to obtain any such Consent or to make
any such Filing would not, individually or in the aggregate,
have a Material Adverse Effect on The Equitable; all such
Consents and Filings are in full force and effect and, to the
best of such counsel's knowledge, neither the Company nor any
Significant Subsidiary has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be
expected to result in the suspension, revocation or limitation
of any such Consent or otherwise impose any limitation on the
conduct of the business of the Company or any Significant
Subsidiary, except for any such suspension, revocation or
limitation which would not, individually or in the aggregate,
have a Material Adverse Effect on The Equitable;
(iv) Each of Equitable Life and the Insurance
Subsidiaries is duly licensed or authorized to conduct its
insurance business under the insurance laws of each
jurisdiction in which it conducts such business so as to
require such licensing or authorization, except where the
failure to be so licensed or authorized would not,
individually or in the aggregate, have a Material Adverse
Effect on The Equitable; all such licenses or authorizations
are in full force and effect and, to the best of such
counsel's knowledge, neither the Company nor Equitable Life
nor any Insurance Subsidiary has received any notice of any
event, inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation
or limitation of any such licenses or authorizations or
otherwise impose any limitation on the conduct of the business
of Equitable Life or any Insurance Subsidiary, except any such
suspension, revocation or limitation which would not,
individually or in the aggregate, have a Material Adverse
Effect on The Equitable;
(v) None of the Company or any Significant
Subsidiary (other than certain separate accounts of Equitable
Life) is required to be registered as an investment company
with the Commission or in any United States jurisdiction where
it conducts business; each
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of the Company and the Significant Subsidiaries is registered
in all capacities with each federal, state, local or other
governmental authority and is registered with, a member of, or
a participant in, each self-regulatory organization, in each
case, as is necessary to conduct its business as described in
or contemplated by the Prospectus as amended or supplemented
relating to the Designated Securities, except where the
failure to be so registered, or to be a member or participant,
would not, individually or in the aggregate, have a Material
Adverse Effect on The Equitable; all such registrations and
memberships are in full force and effect and, to the best of
such counsel's knowledge, neither the Company nor any of its
Significant Subsidiaries has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be
expected to result in the suspension, revocation or limitation
of any such registrations or memberships, except any such
suspension, revocation or limitation which would not,
individually or in the aggregate, have a Material Adverse
Effect on The Equitable;
(vi) All of the issued and outstanding shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
and all of the issued shares of capital stock, partnership
interests or member interests of each Significant Subsidiary
have been duly and validly authorized and issued and are fully
paid and non-assessable, and except as set forth in the
Prospectus as amended or supplemented relating to the
Designated Securities, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims;
(vii) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under the Designated Securities, this Agreement and the
Pricing Agreement applicable to such Designated Securities and
the Indenture, the issuance and delivery of the Designated
Securities being delivered at such Time of Delivery to the
Underwriters, [if the Designated Securities are convertible:]
the issuance of Common Stock upon conversion of the Designated
Securities, the compliance by the Company with all of the
provisions of the Designated Securities, this Agreement and
such Pricing Agreement and the Indenture and the consummation
of the transactions herein and therein contemplated will not,
to the best of such counsels' knowledge, conflict with or
result in a breach or violation of any of the terms
23
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or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any
Significant Subsidiary is a party or by which the Company or
any Significant Subsidiary is bound or to which any of the
property or assets of the Company or any Significant
Subsidiary is subject, except for such conflicts, breaches,
violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect on The Equitable,
nor will such action result in any violation of (A) to the
best of such counsel's knowledge, any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, except for such
violations that would not, individually or in the aggregate,
have a Material Adverse Effect on The Equitable, or (B) the
provisions of the charter or by-laws (or with respect to
Alliance and EHLLC, other organizational documents) of the
Company or any Significant Subsidiary;
(viii) All consents, approvals, authorizations,
orders, registrations or qualifications of or with any court
or governmental agency or body of the United States or any
state thereof required for the issuance and sale of the
Designated Securities being delivered at such Time of Delivery
to the Underwriters, [if the Designated Securities are
convertible:] and the issuance of Common Stock upon conversion
of the Designated Securities have been obtained and are in
full force and effect, except that such counsel need express
no opinion as to state securities or Blue Sky laws or state
insurance securities laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(ix) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus as
amended or supplemented relating to the Designated Securities,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on
The Equitable, and, to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by
government authorities or threatened by others;
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(x) Such counsel does not know of any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or described as required; and
(xi) The documents incorporated by reference in
the Prospectus (other than the financial statements, schedules
and notes thereto and other financial and statistical
information contained therein as to which such counsel need
express no opinion) when they became effective or were filed
with the Commission, as the case may be, complied in all
material respects with the requirements of the Exchange Act
and the rules and regulations thereunder.
In rendering such opinion, such counsel may indicate that he is a
member of the bar of the State of New York. Insofar as the foregoing opinion
relates to the DLJ Group or any member of the DLJ Group or to the Alliance Group
or any member of the Alliance Group, such counsel may rely on the opinion or
opinions of the General Counsel of DLJ or Alliance (or other counsel
satisfactory to the Representatives), provided that a copy of each such opinion
is delivered to the Representatives and is in form and substance satisfactory to
the Representatives. In addition, such counsel may rely on the opinions of local
counsel provided that a copy of each such opinion is delivered to the
Representatives and is in form and substance satisfactory to the Representatives
or, to the extent such counsel deems appropriate, on the members of the
Company's or Equitable Life's Law Department under his supervision who have
familiarity with the laws of any applicable jurisdiction. In rendering such
opinion, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or such other counsel) may also assume, to the extent
his opinion relates to the issuance of Common Stock upon the conversion of the
Designated Securities, that any such issuance of Common Stock will not result in
a violation of any state insurance holding company statute relating to the
acquisition of control of the Company or any of its subsidiaries.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or such other counsel) shall also have stated that,
while neither he nor any member of the Company or Equitable Life's law
department under his supervision has checked the accuracy and completeness of,
or otherwise verified, and is not passing upon and assumes no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement and the Prospectus as amended or supplemented, in the course of his
and such members of the Company's and Equitable Life's law departments' review
and discussion of the contents of the Registration Statement and the Prospectus
as amended or supplemented with certain officers and employees of the Company
and Equitable
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Life and the Company's independent accountants, but without independent check or
verification, no facts have come to his attention which cause him to believe
that (i) the documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements, schedules and notes thereto
and other financial and statistical information contained or incorporated by
reference therein and except for the Statement of Eligibility on Form T-1 of the
Trustee, as to which such counsel need express no belief), when such documents
became effective or were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, not misleading; or
(ii) the Registration Statement (including the prospectus contained therein) or
any further amendment or supplement thereto made by the Company prior to the
Time of Delivery at the time it became effective (other than the financial
statements, schedules and notes thereto and other financial and statistical
information contained or incorporated by reference therein and except for the
Statement of Eligibility on Form T-1 of the Trustee, as to which such counsel
need express no belief) contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements contained therein not misleading, or that the Prospectus as
amended or supplemented or any further amendments or supplements thereto made by
the Company prior to the Time of Delivery of such Designated Securities (other
than the financial statements, schedules and notes thereto and other financial
and statistical information contained or incorporated by reference therein and
except for the Statement of Eligibility on Form T-1 of the Trustee, as to which
such counsel need express no belief) contained as of its date or contains as of
the Time of Delivery any untrue statement of material fact or omitted or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter or letters, dated the respective date of
delivery thereof, in form and substance satisfactory to the Representatives,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and the financial and statistical information included and
incorporated by reference in the Prospectus; provided that any such letter shall
use a "cut-off date" not more than three business days prior to the date of such
letter;
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(f) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated Securities
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the date of the
latest financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any increase in the consolidated
long-term debt of The Equitable (other than long-term debt related to
consolidated real estate joint ventures which is non-recourse to the Company and
any of its Insurance Subsidiaries and other than Other Permitted Debt), or any
change, or any development involving a prospective change, in or affecting (a)
the assets, general affairs, management, financial position, equity or prospects
of either the Alliance Group or the DLJ Group, (b) the assets, general affairs,
management, financial position, equity, results of operations or prospects of
either the Investment Subsidiaries Group or the Insurance Group or of The
Equitable considered as a consolidated entity or (c) the statutory capital or
surplus of Equitable Life, in each case otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating of
Equitable Life or the rating accorded any debt securities or preferred stock of
the Company, Equitable Life or any member of the DLJ Group or the Alliance Group
by A.M. Best & Co., Duff & ▇▇▇▇▇▇ Inc., Standard & Poor's Corporation, ▇▇▇▇▇'▇
Investors Service, Inc. or any other "nationally recognized statistical rating
organization", and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, any
such rating;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange, the London Stock
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Exchange, the Tokyo Stock Exchange or the National Association of Securities
Dealers, Inc.; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war,
if the effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or supplemented relating to
the Designated Securities; (v) the occurrence of any material adverse change in
the existing financial, political or economic conditions in the United States or
elsewhere which in the judgment of the Representatives would materially and
adversely affect the financial markets or the market for the Designated
Securities; or (vi) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority or any proposal to enact, publish, decree or otherwise
promulgate any such statute, regulation, rule or order, if the effect of any
such event specified in this Clause (vi) on the business, operations or
prospects of the Company, Equitable Life or any Significant Subsidiary is in the
judgment of the Representatives material and adverse so as to make it
impracticable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Securities; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a), (f) and (g) of
this Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state
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therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought
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against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or
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31
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than
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seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as amended or supplemented, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this
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33
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8 hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
33
34
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
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35
Very truly yours,
THE EQUITABLE COMPANIES
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name:
Title:
35
36
ANNEX I
PRICING AGREEMENT
, 19
[Names of Representative(s),]
As Representatives of the
several Underwriters named
in Schedule I hereto,
[c/o ________________]
[Address]
Ladies and Gentlemen:
The Equitable Companies Incorporated, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated April 1, 1998 (the "Underwriting Agreement"),
a signed copy of which has been delivered to you, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein [but shall, in
each case, give full effect to any matters set forth under the caption "Other
Terms" in Schedule II hereto]; and each of the representations and warranties
set forth in the Underwriting Agreement shall be deemed to have been made at and
as of the date of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement, [in each
case giving full effect to any matters set forth under the caption "Other Terms"
in Schedule II hereto]. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement
A-1
37
and the address of the Representatives referred to in such Section 12 are set
forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ____(1) counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
--------
(1) One for the Company and each Representative plus one for each counsel.
A-2
38
Very truly yours,
THE EQUITABLE COMPANIES
INCORPORATED
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
By:
----------------------------
Name:
Title:
On behalf of each of the Underwriters
A-3
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SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
[Name(s) of Representative(s)] $
[Names of other Underwriters]
Total $
40
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if
any,] from to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]](2)
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian for
--------
(2) Include this provision if the Designated Securities will be
issued in definitive, certificated form (as opposed to global,
book-entry form). The reference to delivery of the Designated
Securities at the office of DTC or its designated custodian should be
included if the Designated Securities will be DTC eligible (i.e., they
will be delivered in definitive form, rather than book-entry only form,
but will be eligible to be held through the facilities of DTC). The
reference to delivery of the Designated Securities at the office of the
Representatives should be included if the Designated Securities are not
DTC eligible and therefore should be delivered to the office of the
Representatives for checking and packaging prior to the closing. Check
with relevant syndicate desk to determine the appropriate form of the
securities and the location for delivery.
41
trading in the Same Day Funds Settlement System of DTC, and to be made
available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.] (3)
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds by wire transfer to the account of the
Company.
TIME OF DELIVERY:
a.m. (New York City time), , 19
INDENTURE:
[Indenture dated as of December 1, 1993 between the Company and The
Chase Manhattan Bank (formerly Chemical Bank), as Trustee, as
supplemented by the [number] Supplemental Indenture dated as of , 19
between the Company and the Trustee]
[Subordinated Indenture dated as of October 22, 1994, between the
Company and State Street Bank and Trust Company (successor to Shawmut
Bank Connecticut, National Association), as Trustee, as supplemented by
the [number] Supplemental Indenture dated as of , 19 between the
Company and the Trustee]
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
--------
(3) Include this provision if the Designated Securities will be
delivered in global, book-entry only form through DTC.
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42
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
, %, and if] redeemed during the 12-month period beginning ,
YEAR REDEMPTION PRICE
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest[,together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert-
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EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual interest rate
on U.S. Treasury obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ]
[to an annual rate of % above the average rate for -year [month]
[securities][certificates of deposit] issued by and
[insert names of banks].] [and the annual interest rate [thereafter]
[from through ] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if any, of
(i) the then current weekly average per annum secondary market yield
for -month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and thereafter
the rate will be the then current interest yield equivalent plus % of
Interest Differential].]
[If the Designated Securities are convertible, insert --
CONVERSION PROVISIONS:
The initial conversion price will be $ , equivalent to
shares of Common Stock for each $1,000 principal amount of Designated
Securities.]
DEFEASANCE PROVISIONS:
The provisions of Article of the Indenture [will/will not] be
applicable to the Designated Securities.
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CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
Paragraph 7(h) of the Underwriting Agreement will need to be modified
in the event that the Securities are denominated in, indexed to, or
principal or interest are paid in, a currency other than the U.S.
dollar, more than one currency or in a composite currency. The country
or countries issuing such currency should be added to the banking
moratorium and hostilities clauses and the following additional clause
should be added to the paragraph (the entire paragraph should be
restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing
such currency, currencies or composite currency]".
OTHER PERMITTED DEBT:
For purposes of Section 2(d) of the Underwriting Agreement the amount
of Other Permitted Debt is $ [, of which no more than $ may
have been incurred by the DLJ Group].
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS](4):
--------
(4)A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Designated Securities
should be set forth, or referenced to an attached and accompanying description,
if necessary, to ensure agreement as to the terms of the Designated Securities
to be purchased and sold. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for the
offering. This section should also reference any modifications or additions to
the Underwriting Agreement agreed to between the Company and the
Representatives.
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COMPLETED AND PENDING INSURANCE EXAMINATIONS:
The requirements of the last clause of Section 2(o) of the Underwriting
Agreement should be discussed prior to the signing of the Pricing
Agreement.
6
