AGREEMENT AND PLAN OF MERGER OF
EQUITABLE VARIABLE LIFE INSURANCE COMPANY
WITH AND INTO THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement and Plan of
Merger"), dated as of September 19, 1996, is by and between The Equitable Life
Assurance Society of the United States, a New York corporation having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Equitable Life"), and Equitable Variable Life Insurance Company, a New York
corporation having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("EVLICO") (the foregoing corporations hereinafter
sometimes referred to as the "Constituent Companies").
WHEREAS, Equitable Life and EVLICO are corporations duly organized and
validly existing under the laws of the State of New York and duly licensed as
stock life insurance companies under the New York Insurance Law (the "Insurance
Law");
WHEREAS, EVLICO has authorized capital stock consisting of 5 million
shares of Common Stock (the "EVLICO Common Stock"), $1.00 par value, of which at
the date hereof 1.5 million shares are issued and outstanding and owned by
Equitable Life and are the only shares of stock of EVLICO entitled to vote on
this Agreement and Plan of Merger;
WHEREAS, Equitable Life has authorized capital stock consisting of 2
million shares of Common Stock (the "Equitable Common Stock"), $1.25 par value,
all of which shares on the date hereof are issued and outstanding and owned by
The Equitable Companies Incorporated, a Delaware corporation having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
The issued and outstanding shares of Equitable Common Stock are the only shares
of stock of Equitable Life entitled to vote on this Agreement and Plan of
Merger; and
WHEREAS, the Boards of Directors of Equitable Life and EVLICO deem it
advisable and in the best interest of the policyholders and contract holders of
their respective companies to effect the merger (the "Merger") of EVLICO and
Equitable Life with and into Equitable Life as the surviving company, and the
Board of Directors and sole stockholder, respectively, of each of Equitable Life
and EVLICO have duly approved and adopted this Agreement and Plan of Merger.
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NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, it is hereby agreed by and between
the parties hereto that EVLICO shall be merged with and into Equitable Life
pursuant to Article 71 of the Insurance Law and in accordance with this
Agreement and Plan of Merger.
ARTICLE 1
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Surviving Company
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Section 1.1 The Surviving Company. The surviving company of the Merger
(the "Surviving Company") shall be Equitable Life.
Section 1.2 Charter. The proposed Restated Charter of the Surviving
Company is annexed hereto as Exhibit A.
Section 1.3 By-Laws. The By-Laws of Equitable Life in effect at the
Effective Time of the Merger (as hereinafter defined) shall be the By-Laws of
the Surviving Company.
ARTICLE 2
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Terms and Conditions of the Merger and Mode of Carrying the Merger into Effect
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Section 2.1 General. Subject to and upon the terms and conditions of
this Agreement and Plan of Merger, upon the Effective Time of the Merger, EVLICO
shall be merged with and into Equitable Life and Equitable Life shall continue
as the Surviving Company as permitted and provided by Section 7102 of the
Insurance Law. All of the EVLICO Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger shall, at the Effective Time of the
Merger, be cancelled. All of the Equitable Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger shall remain unchanged.
Section 2.2 Consents, Approvals, Etc. to be Obtained by the Parties to
the Merger. Equitable Life and EVLICO shall each obtain all necessary consents
and approvals of, permits from, and assurances of no objection to the Merger or
other rulings from, the appropriate governmental authorities, including the
following:
(a) approval by the New York Insurance Department to consummate
the Merger pursuant to Section 7105 of the Insurance Law; and
(b) approval by the New York Insurance Department of one or more
plans of operation of Equitable Life separate accounts which
will continue the operations of EVLICO separate
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accounts in operation at the Effective Time of the Merger as
separate accounts of Equitable Life.
Section 2.3 Effective Time of the Merger. This Agreement and Plan of
Merger shall be duly executed and attested and a certified copy thereof,
together with certificates of its adoption as provided for in the Insurance Law
and certificates as to fees, commissions or other compensations or valuable
considerations paid or to be paid in connection with the Merger, shall be
submitted for approval to the Superintendent of Insurance of the State of New
York (the "Superintendent"). Following the receipt of such approval from the
Superintendent and the fulfillment of the conditions set forth herein, a
certified copy of this Agreement and Plan of Merger, with evidence of the
approval of the Superintendent endorsed thereon, shall be filed in the office of
the Clerk of the County of New York, where the principal office of each of
Equitable Life and EVLICO is located. Subject to the foregoing, the Merger shall
become effective at 12:01 a.m. on January 1, 1997 (the "Effective Time of the
Merger").
ARTICLE 3
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Other Provisions with Respect to the Merger
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Section 3.1. Effect of the Merger. At the Effective Time of the Merger,
the separate existence of EVLICO shall cease and, in accordance with the
provisions of this Agreement and Plan of Merger, EVLICO shall be merged with and
into Equitable Life, and Equitable Life shall survive the Merger and shall
continue in existence and shall possess all the rights, privileges, immunities,
powers and purposes of each of the Constituent Companies. All the rights,
franchises and interests in and to every species of property, real, personal,
and mixed, including things in action, causes of action and every other asset of
the Constituent Companies, shall vest in the Surviving Company without further
act or deed, except that if the Surviving Company shall at any time deem it
desirable that any further assignment or assurance shall be given to fully
accomplish the purposes of the Merger, the directors and officers of EVLICO
shall do all things necessary, including the execution of any and all relevant
documents, to carry out the intent and purposes of this Agreement and Plan of
Merger. No liability or obligation due or to become due, or claim or demand for
any cause existing against either Constituent Company, or any policyholder,
shareholder, officer, or director thereof, shall be released or impaired by the
Merger. No action or proceeding, civil or criminal, then pending by or against
either Constituent Company, or any policyholder, shareholder, officer, or
director thereof, shall be abated or discontinued by the Merger, but may be
enforced, prosecuted, settled or compromised as if the Merger had not occurred,
or Equitable Life, as the Surviving Company, may be substituted in place of
EVLICO by order of the court in which the action or proceeding may be pending.
From and after the Effective Time of the Merger, Equitable Life shall be liable
in place of EVLICO for all the liabilities and obligations of EVLICO, including
liabilities under policies and contracts issued by EVLICO.
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Section 3.2. Abandonment of the Merger. If, at any time prior to the
Effective Time of the Merger, events or circumstances occur which, in the
opinion of a majority of the Board of Directors of either of the Constituent
Companies, render it inadvisable to consummate the Merger, this Agreement and
Plan of Merger shall not become effective even though previously approved and
adopted by the Board of Directors and sole shareholder, respectively, of each of
Equitable Life and EVLICO.
Section 3.3. Expenses of the Merger. Equitable Life shall pay all the
expenses of carrying this Agreement and Plan of Merger into effect and of
accomplishing the Merger.
Section 3.4. Counterparts. For the convenience of the parties and to
facilitate approval of this Agreement and Plan of Merger, any number of
counterparts hereof may be executed, and each such executed counterpart shall be
deemed to be an original instrument.
Section 3.5. Governing Law. This Agreement and Plan of Merger has been
executed in and shall be governed by and construed under the laws of the State
of New York.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been duly
executed and delivered by the duly authorized officers of Equitable Life and
EVLICO on the date first above written.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
[Seal]
Attest:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------- By:------------------------------------
Secretary President and Chief Executive Officer
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
[Seal]
Attest:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------- By:------------------------------------
Secretary President and Chief Executive Officer
28903
Exhibit A
RESTATED CHARTER
OF
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
ARTICLE I
The name of the corporation shall continue to be The Equitable Life
Assurance Society of the United States.
ARTICLE II
The principal office of the corporation shall be located in the City of
New York, County of New York, State of New York.
ARTICLE III
(a) The business to be transacted by the corporation shall be the kinds
of insurance business specified in Paragraphs 1, 2 and 3 of Subsection (a) of
Section 1113 of the Insurance Law of the State of New York, as follows:
(1) "Life insurance": every insurance upon the lives of human
beings, and every insurance appertaining thereto, including the
granting of endowment benefits, additional benefits in the event of
death by accident, additional benefits to safeguard the contract from
lapse, accelerated payments of part or all of the death benefit or a
special surrender value upon diagnosis (A) of terminal illness defined
as a life expectancy of twelve months or less, or (B) of a medical
condition requiring extraordinary medical care or treatment regardless
of life expectancy, or provide a special surrender value, upon total
and permanent disability of the insured, and optional modes of
settlement of proceeds. "Life insurance" also includes additional
benefits to safeguard the contract against lapse in the event of
unemployment of the insured. Amounts paid the insurer for life
insurance and proceeds applied under optional modes of settlement or
under dividend options may be allocated by the insurer
to one or more separate accounts pursuant to section four thousand two
hundred forty of the Insurance Law of the State of New York;
(2) "Annuities": all agreements to make periodical payments
for a period certain or where the making or continuance of all or some
of a series of such payments, or the amount of any such payment,
depends upon the continuance of human life, except payments made under
the authority of paragraph (1) above. Amounts paid the insurer to
provide annuities and proceeds applied under optional modes of
settlement or under dividend options may be allocated by the insurer to
one or more separate accounts pursuant to section four thousand two
hundred forty of the Insurance Law of the State of New York;
(3) "Accident and health insurance": (i) insurance against
death or personal injury by accident or by any specified kind or kinds
of accident and insurance against sickness, ailment or bodily injury,
including insurance providing disability benefits pursuant to article
nine of the workers' compensation law, except as specified in item (ii)
hereof; and (ii) non-cancellable disability insurance, meaning
insurance against disability resulting from sickness, ailment or bodily
injury (but excluding insurance solely against accidental injury) under
any contract which does not give the insurer the option to cancel or
otherwise terminate the contract at or after one year from its
effective date or renewal date;
and any amendments to such paragraphs or provisions in substitution therefor
which may be hereafter adopted; such other kind or kinds of business now or
hereafter authorized by the laws of the State of New York to stock life
insurance companies; and such other kind or kinds of business to the extent
necessarily or properly incidental to the kind or kinds of insurance business
which the corporation is authorized to do.
(b) The corporation shall also have all other rights, powers, and
privileges now or hereafter authorized or granted by the Insurance Law of the
State of New York or any other law or laws of the State of New York to stock
life insurance companies having power to do the kind or kinds of business
hereinabove referred to and any and all other rights, powers, and privileges of
a corporation now or hereafter granted by the laws of the State of New York and
not prohibited to such stock life insurance companies.
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ARTICLE IV
The business of the corporation shall be managed under the direction of
the Board of Directors.
ARTICLE V
(a) The Board of Directors shall consist of not less than 13 (except
for vacancies temporarily unfilled) nor more than 36 Directors, as may be
determined from time to time by a vote of a majority of the entire Board of
Directors. No decrease in the number of Directors shall shorten the term of any
incumbent Director.
(b) The Board of Directors shall have the power to adopt from time to
time such By-Laws, rules and regulations for the governance of the officers,
employees and agents and for the management of the business and affairs of the
corporation, not inconsistent with this Charter and the laws of the State of New
York, as may be expedient, and to amend or repeal such by-laws, rules and
regulations, except as provided in the By-Laws.
(c) Any or all of the Directors may be removed at any time, either for
or without cause, by vote of the shareholders.
(d) No Director shall be personally liable to the corporation or any of
its shareholders for damages for any breach of duty as a Director; provided,
however, that the foregoing provision shall not eliminate or limit (i) the
liability of a Director if a judgment or other final adjudication adverse to him
or her establishes that his or her acts or omissions were in bad faith or
involved intentional misconduct or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally entitled,
or were acts or omissions which (a) he or she knew or reasonably should have
known violated the Insurance Law of the State of New York or (b) violated a
specific standard of care imposed on Directors directly, and not by reference,
by a provision of the Insurance Law of the State of New York (or any regulations
promulgated thereunder) or (c) constituted a knowing violation of any other law;
or (ii) the liability of a Director for any act or omission prior to September
21, 1989.
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ARTICLE VI
(a) The Directors of the corporation shall be elected at each annual
meeting of shareholders of the corporation in the manner prescribed by law. The
annual meeting of shareholders shall be held at such place, within or without
the State of New York, and at such time as may be fixed by or under the By-Laws.
At each annual meeting of shareholders, directors shall be elected to hold
office for a term expiring at the next annual meeting of shareholders.
(b) Newly created directorships resulting from an increase in the
number of Directors and vacancies occurring in the Board of Directors shall be
filled by vote of the shareholders.
(c) Each Director shall be at least twenty-one years of age, and at all
times a majority of the Directors shall be citizens and residents of the United
States, and not less than three of the Directors shall be residents of the State
of New York.
(d) The Board of Directors shall elect such officers as are provided
for in the By-Laws at the first meeting of the Board of Directors following each
annual meeting of the shareholders. In the event of the failure to elect
officers at such meeting, officers may be elected at any regular or special
meeting of the Board of Directors. A vacancy in any office may be filled by the
Board of Directors at any regular or special meeting.
ARTICLE VII
The duration of the corporate existence of the corporation shall be
perpetual.
ARTICLE VIII
The amount of the capital of the corporation shall be $2,500,000, and
shall consist of 2,000,000 Common Shares, par value $1.25 per share.
44859-1.DOC
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