<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): APRIL 1, 1998
THE EQUITABLE COMPANIES
INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COMMISSION FILE NO. 1-11166
---------------------------
Delaware 13-3623351
(State or other jurisdiction of Incorporation) (IRS Employer Identification No.)
1290 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10104
(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 554-1234
<PAGE> 2
Item 7: Financial Statements and Exhibits.
(c) Exhibits
The documents listed below are filed as Exhibits with reference to the
Registration Statement on Form S-3 (Registration No. 333-45415) of The Equitable
Companies Incorporated (the "Company"), EQ Capital Trust I, EQ Capital Trust II,
EQ Capital Trust III and EQ Capital Trust IV and Amendment No. 1 thereto (as so
amended, the "Registration Statement") and the prospectus included therein as
supplemented by the Prospectus Supplement, dated April 1, 1998 (as so
supplemented, the "Prospectus"). The Registration Statement and the Prospectus
relate to the offering by the Company of $250,000,000 aggregate principal amount
of its 6 1/2% Senior Notes due 2008 (the "Senior Notes") and $350,000,000
aggregate principal amount of its 7% Senior Debentures due 2028 (the "Senior
Debentures").
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
1.1(a) Underwriting Agreement for Debt Securities, dated April 1, 1998.
1.1(b) Pricing Agreement, dated April 1, 1998, among the Company,
Donaldson, Lufkin & Jenrette Securities Corporation, Goldman, Sachs
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon
Brothers Inc, Bear Stearns & Co. Inc., Chase Securities Inc. and
J.P. Morgan Securities Inc.
4.18(a) Fourth Supplemental Indenture, dated April 1, 1998, from The
Equitable Companies Incorporated to The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee.
4.18(b) Form of global Senior Note (contained in Exhibit 4.18(a) above).
4.18(c) Form of global Senior Debenture (contained in Exhibit 4.18(a) above).
</TABLE>
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE EQUITABLE COMPANIES INCORPORATED
Date: April 7, 1998 By: /s/ Kevin R. Byrne
---------------------------
Name: Kevin R. Byrne
Title: Senior Vice President and Treasurer
3
<PAGE> 4
Exhibit Index
<TABLE>
<CAPTION>
Exhibit Page
- ------- ----
<S> <C>
1.1(a) Underwriting Agreement for Debt Securities, dated April 1, 1998.
1.1(b) Pricing Agreement, dated April 1, 1998, among the Company,
Donaldson, Lufkin & Jenrette Securities Corporation, Goldman, Sachs
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon
Brothers Inc, Bear Stearns & Co. Inc., Chase Securities Inc. and
J.P. Morgan Securities Inc.
4.18(a) Fourth Supplemental Indenture, dated April 1, 1998, from The
Equitable Companies Incorporated to The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee.
4.18(b) Form of global Senior Note (contained in Exhibit 4.18(a) above).
4.18(c) Form of global Senior Debenture (contained in Exhibit 4.18(a) above).
</TABLE>
4
<PAGE> 1
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
<PAGE> 2
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
2
<PAGE> 3
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
3
<PAGE> 4
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
4
<PAGE> 5
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"), Donaldson, Lufkin & Jenrette, Inc. ("DLJ"),
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"),
Alliance Capital Management L.P. ("Alliance"), ACMC, Inc.
("ACMCI"), Equitable Holdings, LLC ("EHLLC") and Equitable
Investment Corporation ("EIC"); the "DLJ Group"
5
<PAGE> 6
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
6
<PAGE> 7
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;
7
<PAGE> 8
(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
8
<PAGE> 9
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
9
<PAGE> 10
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
10
<PAGE> 11
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
11
<PAGE> 12
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
12
<PAGE> 13
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
13
<PAGE> 14
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;
14
<PAGE> 15
(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
15
<PAGE> 16
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
16
<PAGE> 17
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) Davis Polk & Wardwell, 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 & Plimpton, 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;
17
<PAGE> 18
(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
18
<PAGE> 19
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
19
<PAGE> 20
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 & Plimpton 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 & Plimpton 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 & Plimpton 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
20
<PAGE> 21
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) Robert E. Garber, 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");
21
<PAGE> 22
(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
22
<PAGE> 23
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
<PAGE> 24
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;
24
<PAGE> 25
(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, Robert E. Garber (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.
Robert E. Garber (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
25
<PAGE> 26
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;
26
<PAGE> 27
(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 & Phelps Inc., Standard & Poor's Corporation, Moody's
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
27
<PAGE> 28
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
28
<PAGE> 29
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
29
<PAGE> 30
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
30
<PAGE> 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
31
<PAGE> 32
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
32
<PAGE> 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
<PAGE> 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.
34
<PAGE> 35
Very truly yours,
THE EQUITABLE COMPANIES
INCORPORATED
By: /s/ Kevin R. Byrne
--------------------------------
Name:
Title:
35
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 39
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
[Name(s) of Representative(s)] $
[Names of other Underwriters]
Total $
</TABLE>
<PAGE> 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.
<PAGE> 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.
2
<PAGE> 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-
3
<PAGE> 43
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.
4
<PAGE> 44
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.
5
<PAGE> 45
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
<PAGE> 1
Exhibit 1.1(b)
Pricing Agreement
April 1, 1998
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Solomon Brothers Inc.
Bear, Stearns & Co. Inc.
Chase Securities Inc.
J.P. Morgan Securities Inc.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
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; 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. 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
<PAGE> 2
the Designated Securities pursuant to Section 12 of the Underwriting Agreement
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 10 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.
2
<PAGE> 3
Very truly yours,
THE EQUITABLE COMPANIES
INCORPORATED
By: /s/ Kevin R. Byrne
-------------------
Name: Kevin R. Byrne
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof:
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Brothers Inc
Bear, Stearns & Co. Inc.
Chase Securities Inc.
J.P. Morgan Securities Inc.
By: Donaldson, Lufkin & Jenrette
Securities Corporation
By: /s/ Roger Thomson
------------------
Name: Roger Thomson
Title: Managing Director
On behalf of each of the Underwriters
<PAGE> 4
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
SENIOR NOTES SENIOR
TO BE DEBENTURES TO
UNDERWRITER PURCHASED BE PURCHASED
------------ ------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette Securities Corporation $ 53,125,000 $ 74,375,000
Goldman, Sachs & Co. 53,125,000 74,375,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 53,125,000 74,375,000 74,375,000
Salomon Brothers Inc. 53,125,000 74,375,000
Bear, Stearns & Co. Inc. 12,500,000 17,500,000
Chase Securities Inc. 12,500,000 17,500,000
J.P. Morgan Securities Inc. 12,500,000 17,500,000
Total $250,000,000 $350,000,000
============ ============
</TABLE>
<PAGE> 5
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.5% Senior Notes due 2008 (the "Senior Notes") 7% Senior Debentures due
2028 (the "Senior Debentures")
AGGREGATE PRINCIPAL AMOUNT:
$250,000,000 of Senior Notes
$350,000,000 of Senior Debentures
PRICE TO PUBLIC:
99.672% of the principal amount of the Senior Notes and 99.242% of the
principal amount of the Senior Debentures, plus in each case accrued interest,
if any, from the date of issuance
PURCHASE PRICE BY UNDERWRITERS:
99.022% of the principal amount of the Senior Notes and 98.367% of the
principal amount of the Senior Debentures, plus in each case accrued interest,
if any, from the date of issuance
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian for
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.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds by wire transfer to the account of the Company.
TIME OF DELIVERY:
10:00 a.m. (New York City time), April 6, 1998
<PAGE> 6
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
Fourth Supplemental Indenture dated as of April 1, 1998 between the Company
and the Trustee
MATURITY:
April 1, 2008 in the case of the Senior Notes April 1, 2028 in the case of
the Senior Debentures
INTEREST RATE:
6.5% per annum in the case of the Senior Notes
7% per annum in the case of the Senior Debentures
INTEREST PAYMENT DATES:
April 1 and October 1, commencing October 1, 1998
REDEMPTION PROVISIONS:
The Senior Notes and the Senior Debentures may be redeemed by the Company,
in whole or in part, at any time prior to maturity at a price (the
"Redemption Price") equal to the sum of (i) the aggregate principal amount
being redeemed plus accrued interest thereon to the date of redemption and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Designated Securities.
Notice of an optional redemption of any Designated Securities will be
given to holders thereof at their addresses, as shown in the register, not
more than 60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the date fixed for
redemption and the principal amount of the Designated Securities of the
applicable series held by such holder to be redeemed.
If funds for the redemption of any Designated Securities called for
redemption have been made available on such redemption date, such Designated
Securities will cease to bear interest on the date fixed for such redemption
specified in the notice of redemption and the only right of the holders
thereof will be to receive payment of the Redemption Price.
If fewer than all of the outstanding Designated Securities of a series are
to be redeemed, the Designated Securities of such series shall be redeemed
pro rata based on the outstanding principal amount of Designated Securities
of such series being redeemed.
2
<PAGE> 7
Certain Definitions Applicable to Optional Redemption. "Make-Whole Amount"
means, in connection with any optional redemption of the Designated
Securities of a series, the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest that would have been payable in respect
of such dollar if such prepayment had not been made determined by
discounting, on a semiannual basis, such principal and interest at the
Reinvestment Rate (determined on the business day immediately preceding the
date of such redemption) from the respective dates on which such principal
and interest would have been payable if such prepayment had not been made,
over (ii) the aggregate principal amount of the Designated Securities of the
applicable series being redeemed or paid plus accrued interest to the date
of redemption.
The term "Reinvestment Rate" means the arithmetic mean of the yields for
the two weeks set forth under the heading "Week Ending" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the Weighted
Average Life to Maturity of the principal being prepaid or paid plus 15
basis points in the case of the Senior Notes and 20 basis points in the case
of the Senior Debentures. If no maturity exactly corresponds to such
Weighted Average Life to Maturity, yields for the two published maturities
most closely corresponding to such Weighted Average Life to Maturity shall
be calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on
a straight-line basis rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination
of the Make-Whole Amount shall be used.
The term "Remaining Dollar-Years" means, at any time, with respect to any
Senior Note or Senior Debenture, as the case may be, the result obtained by
multiplying (i) an amount equal to the then remaining principal payment at
final maturity of such Senior Note or Senior Debenture, as the case may be,
unpaid immediately prior to such time by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such time
and the date such required principal payment at final maturity is due.
The term "Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded U.S.
government securities adjusted to constant maturities or if such statistical
release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
The term "Weighted Average Life to Maturity" means, at any time, with
respect to any Senior Note or Senior Debenture, as the case may be, the
number of years obtained by dividing the then Remaining Dollar-Years at such
time of such Senior Note or Senior Debenture, as the case may be, by the
then outstanding principal amount of such Senior Note or Senior Debenture,
as the case may be.
3
<PAGE> 8
SINKING FUND PROVISIONS:
No sinking fund provisions
DEFEASANCE PROVISIONS:
The provisions of Article 4 of the Indenture will be applicable to each
series of Designated Securities.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
OTHER PERMITTED DEBT:
For purposes of Section 2(d) of the Underwriting Agreement the amount of
Other Permitted Debt is $150,000,000 (exclusive of interest accruals) issued
by Donaldson, Lufkin & Jenrette, Inc. on March 23, 1998 and other long-term
debt not in excess of $1,000,000,000.
COMPLETED AND PENDING INSURANCE EXAMINATIONS:
For purposes of Section 2(o) of the Underwriting Agreement, the Company has
delivered to the Representatives a certificate dated April 1, 1998 with
respect to significant examinations completed and filed since January 1,
1997 and all pending significant examinations.
Names and addresses of Representatives:
Designated Representatives: Donaldson, Lufkin & Jenrette
Securities Corporation
Address for Notices, etc.: 277 Park Avenue
New York, NY 10172
4
<PAGE> 1
Exhibit 4.18(a)
THE EQUITABLE COMPANIES INCORPORATED
to
THE CHASE MANHATTAN BANK
as Trustee
FOURTH
SUPPLEMENTAL INDENTURE
------------------------------------
Dated as of April 1, 1998
------------------------------------
Providing for Issuance of
6 1/2% Senior Notes due 2008
7% Senior Debentures due 2028
<PAGE> 2
FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of April 1, 1998, from THE EQUITABLE COMPANIES INCORPORATED, a Delaware
corporation (the "Company"), to THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank) as Trustee, a New York corporation (the "Trustee").
Recitals
In accordance with Sections 2.1, 3.1 and 8.1 of the Indenture, dated
as of December 1, 1993, from the Company to the Trustee (the "Indenture"), this
Supplemental In denture is being entered into in order to establish the form and
terms of two new series of Securities.
All capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
For and in consideration of the premises, it is mutually covenanted
and agreed as follows:
ARTICLE I
Issuance of 6 1/2% Senior Notes
Section 1.1 Issuance of 6 1/2% Senior Notes. There shall be a series
of debt securities designated the 6 1/2% Senior Notes due 2008 (the "Senior
Notes") and such Senior Notes shall have the following terms in accordance with
the provisions of the Indenture and this Supplemental Indenture:
(a) Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Senior Notes which may
be authenticated and delivered shall be limited to
$250,000,000.
<PAGE> 3
(b) Principal Payments and Principal Payment Dates. Except as set
forth below in Section (e), the principal amount of the Senior Notes
outstanding (together with any accrued and unpaid interest thereon) shall be
payable in a single installment on April 1, 2008.
(c) Interest Rate and Interest Payment Dates. The interest rate for
the Senior Notes shall be 6 1/2% per annum accruing from April 6, 1998 or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or provided for on the Senior Notes. To the extent allowed by law, the
Company will also pay interest on overdue installments of principal and interest
at such rate. Interest shall be payable semiannually on April 1 and October 1 of
each year (each an "Interest Payment Date") commencing on October 1, 1998. The
interest so payable on the Senior Notes which is punctually paid or provided for
shall be paid to the Persons in whose names such Senior Notes are registered at
the close of business on the March 15 or September 15, as the case may be, next
preceding such Interest Payment Date (each a "Regular Record Date"). The
interest so payable on the Senior Notes which is not punctually paid or
provided for shall forthwith cease to be payable to the Persons in whose names
such Notes are registered on the relevant Regular Record Date, and such de
faulted interest shall instead be payable to the Persons in whose names such
Notes are registered on the Special Record Date or other specified date in
accordance with the Indenture.
(d) Place of Payment and Method of Payment. The place of payment of
principal and interest on the Senior Notes shall initially be the Corporate
Trust Office of the Trustee, or, notwithstanding the foregoing, as otherwise
provided in the Indenture; provided, however, that the final principal payment
shall be payable only upon surrender of such Senior Notes to the Paying Agent.
2
<PAGE> 4
(e) Redemption. The Senior Notes may be re deemed, in whole or in
part, at any time at the option of the Company prior to maturity at a price (the
"Senior Notes Redemption Price") equal to the sum of (i) the aggregate principal
amount of Senior Notes being redeemed plus accrued interest thereon to the date
of redemption and (ii) the Senior Notes Make-Whole Amount (as defined below), if
any.
Notice of an optional redemption of the Senior Notes will be given
to Holders of the Senior Notes at their addresses, as shown in the Register of
Holders of Senior Notes, not more than 60 nor less than 30 days prior to the
date fixed for redemption, and otherwise in accordance with Article 10 of the
Indenture.
If funds for the redemption of the Senior Notes called for
redemption have been made available on such redemption date, the Senior Notes
will cease to bear interest on the date fixed for such redemption specified in
the notice of redemption and the only right of the holders thereof will be to
receive payment of the Senior Notes Redemption Price.
If fewer than all of the outstanding Senior Notes are to be
redeemed, such Senior Notes shall be redeemed pro rata based on the outstanding
principal amount of the Senior Notes being redeemed.
The term "Senior Notes Make-Whole Amount" shall mean, in connection
with any optional redemption of the Senior Notes, the excess, if any, of (i)
the aggregate present value as of the date of such redemption of each dollar of
principal of Senior Notes being redeemed and the amount of interest that would
have been payable in respect of such dollar if such prepayment had not been made
determined by discounting, on a semiannual basis, such principal and interest at
the Senior Notes Reinvestment Rate (determined on the Business Day immediately
preceding the date of such redemption) from the respective dates on which such
princi-
3
<PAGE> 5
pal and interest would have been payable if such prepayment had not been made,
over (ii) the aggregate principal amount of the Senior Notes being redeemed or
paid plus accrued interest to the date of redemption.
The term "Senior Notes Reinvestment Rate" shall mean the arithmetic mean of
the yields for the two weeks set forth under the heading "Week Ending" published
in the Statistical Release under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the Senior Notes
Weighted Average Life to Maturity of the principal amount of Senior Notes being
prepaid or paid plus 15 basis points. If no maturity exactly corresponds to such
Senior Notes Weighted Average Life to Maturity, yields for the two published
maturities most closely corresponding to such Senior Notes Weighted Average Life
to Maturity shall be calculated pursuant to the immediately preceding sentence
and the Senior Notes Reinvestment Rate shall be interpolated or extrapolated
from such yields on a straight-line basis rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the Senior Notes
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Senior Notes Make-Whole Amount shall be used.
The term "Senior Notes Remaining Dollar-Year" shall mean, at any time, with
respect to any Senior Note, the result obtained by multiplying (i) an amount
equal to the then remaining principal payment at final maturity of such Senior
Note unpaid immediately prior to such time by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such time and
the date such required principal payment at final maturity is due.
The term "Statistical Release" shall mean the statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively traded U.S.
4
<PAGE> 6
government securities adjusted to constant maturities or if such statistical
release is not published at the time of any determination under the Indenture,
then such other reason ably comparable index which shall be designated by the
Company.
The term "Senior Notes Weighted Average Life to Maturity" shall
mean, at any time, with respect to any Senior Note, the number of years
obtained by dividing the then Senior Notes Remaining Dollar-Years at such time
of such Senior Note by the then outstanding principal amount of such Senior
Note.
(f) Sinking Fund Obligations. The Company has no obligation to
redeem or purchase any Senior Notes pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.
(g) Denomination and Form of Notes. The Senior Notes shall be fully
registered, without coupons, and issued in denominations of $1,000 and any
integral multiples there of, provided that in the event of any redemption in
accordance with subparagraph (e) above, the minimum denomination may be
proportionately reduced in order to facilitate a pro rata redemption. Except as
provided in Section 3.5 of the Indenture, the Senior Notes shall be issuable
only as Registered Securities in global form representing the entire aggregate
principal amount of the Senior Notes and shall be substantially in the form
attached as Exhibit A hereto.
(h) Defeasance and Covenant Defeasance. The pro visions of Article 4
of the Indenture relating to defeasance shall apply to the Senior Notes. For the
purpose of a defeasance or covenant defeasance pursuant to such Article 4, the
term "Government Obligations" shall only include obligations of the United
States or an agency or instrumentality of the United States.
5
<PAGE> 7
(i) Registrar and Paying Agent. The Trustee shall initially serve as
Registrar and Paying Agent for the Senior Notes.
(j) Initial Depositary. The initial depositary for the Senior Notes
shall be The Depository Trust Company ("DTC").
ARTICLE II
Issuance of the 7% Senior Debentures
Section 2.1 Issuance of 7% Senior Debentures. There shall be a
series of debt securities designated the 7% Senior Debentures due 2028 (the
"Senior Debentures") and such Senior Debentures shall have the following terms
in accordance with the provisions of the Indenture and this
Supplemental Indenture:
(a) Limitation on Aggregate Principal Amount. The aggregate
principal amount of the Senior Debentures which may be authenticated and
delivered shall be limited to $350,000,000.
(b) Principal Payments and Principal Payment Dates. Except as set
forth below in Section (e), the principal amount of the Senior Debentures
outstanding (together with any accrued and unpaid interest thereon) shall be
payable in a single installment on April 1, 2028.
(c) Interest Rate and Interest Payment Dates. The interest rate for
the Senior Debentures shall be 7% per annum accruing from April 6, 1998 or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or provided for on the Senior Debentures. To the extent allowed by
law, the Company will also pay inter est on overdue installments of principal
and interest at such rate. Interest shall be payable semiannually on April 1 and
October 1 of each year (each an "Interest Payment
6
<PAGE> 8
Date") commencing on October 1, 1998. The interest so payable on the Senior
Debentures which is punctually paid or provided for shall be paid to the Persons
in whose names such Senior Debentures are registered at the close of business
on the March 15 or September 15, as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). The interest so payable on
the Senior Debentures which is not punctually paid or provided for shall
forthwith cease to be payable to the Persons in whose names such Senior
Debentures are registered on the relevant Regular Record Date, and such
defaulted interest shall instead be payable to the Persons in whose names such
Senior Debentures are registered on the Special Record Date or other specified
date in accordance with the Indenture.
(d) Place of Payment and Method of Payment. The place of payment of
principal and interest on the Senior Debentures shall initially be the Corporate
Trust Office of the Trustee, or, notwithstanding the foregoing, as otherwise
provided in the Indenture; provided, however, that the final principal payment
shall be payable only upon surrender of such Senior Debentures to the Paying
Agent.
(e) Redemption. The Senior Debentures may be re deemed, in whole or
in part, at any time at the option of the Company prior to maturity at a price
(the "Senior Debentures Redemption Price") equal to the sum of (i) the aggregate
principal amount of Senior Debentures being redeemed plus accrued interest
thereon to the date of redemption and (ii) the Senior Debentures Make-Whole
Amount (as defined below), if any.
Notice of an optional redemption of the Senior Debentures will be
given to Holders of the Senior Debentures at their addresses, as shown in the
Register of Holders of Senior Debentures, not more than 60 nor less than 30 days
prior to the date fixed for redemption, and otherwise in accordance with Article
10 of the Indenture.
7
<PAGE> 9
If funds for the redemption of the Senior Debentures called for
redemption have been made available on such redemption date, the Senior
Debentures will cease to bear interest on the date fixed for such redemption
specified in the notice of redemption and the only right of the holders thereof
will be to receive payment of the Senior Debentures Redemption Price.
If fewer than all of the outstanding Senior Debentures are to be
redeemed, such Senior Debentures shall be redeemed pro rata based on the
outstanding principal amount of the Senior Debentures being redeemed.
The term "Senior Debentures Make-Whole Amount" shall mean, in
connection with any optional redemption of the Senior Debentures, the excess, if
any, of (i) the aggregate present value as of the date of such redemption of
each dollar of principal of Senior Debentures being redeemed and the amount of
interest that would have been payable in respect of such dollar if such
prepayment had not been made determined by discounting, on a semiannual basis,
such principal and interest at the Senior Debentures Reinvestment Rate
(determined on the Business Day immediately preceding the date of such
redemption) from the respective dates on which such principal and interest would
have been payable if such prepayment had not been made, over (ii) the aggregate
principal amount of the Senior Debentures being redeemed or paid plus accrued
interest to the date of redemption.
The term "Senior Debentures Reinvestment Rate" shall mean the
arithmetic mean of the yields for the two weeks set forth under the heading
"Week Ending" published in the Statistical Release (as defined in Section
1.1(e)) under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the Senior Debentures Weighted
Average Life to Maturity of the principal amount of Senior Debentures being
prepaid or paid plus 20 basis points. If no maturity exactly corresponds to such
Senior Debentures Weighted Average Life to Maturity,
8
<PAGE> 10
yields for the two published maturities most closely corresponding to such
Senior Debentures Weighted Average Life to Maturity shall be calculated pursuant
to the immediately preceding sentence and the Senior Debentures Reinvestment
Rate shall be interpolated or extrapolated from such yields on a straight-line
basis rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Senior Debentures Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Senior Debentures Make-Whole Amount shall be used.
The term "Senior Debentures Remaining Dollar-Years" shall mean, at
any time, with respect to any Senior Debenture, the result obtained by
multiplying (i) an amount equal to the then remaining principal payment at final
maturity of such Senior Debenture unpaid immediately prior to such time by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such time and the date such required principal payment at final maturity
is due.
The term "Senior Debentures Weighted Average Life to Maturity" shall
mean, at any time, with respect to any Senior Debenture, the number of years
obtained by dividing the then Senior Debentures Remaining Dollar-Years at such
time of such Senior Debenture by the then outstanding principal amount of such
Senior Debenture.
(f) Sinking Fund Obligations. The Company has no obligation to
redeem or purchase any Senior Debentures pursuant to any sinking fund or
analogous requirement or upon the happening of a specified event or at the
option of a Holder thereof.
(g) Denomination and Form of Debentures. The Senior Debentures
shall be fully registered, without coupons, and issued in denominations of
$1,000 and any integral multiples thereof, provided that in the event of any
9
<PAGE> 11
redemption in accordance with subparagraph (e) above, the minimum denomination
may be proportionately reduced in order to facilitate a pro rata redemption.
Except as provided in Section 3.5 of the Indenture, the Senior Debentures shall
be issuable only as Registered Securities in global form representing the entire
aggregate principal amount of the Senior Debentures and shall be substantially
in the form attached as Exhibit B hereto.
(h) Defeasance and Covenant Defeasance. The pro visions of Article 4
of the Indenture relating to defeasance shall apply to the Senior Debentures.
For the purpose of a defeasance or covenant defeasance pursuant to such Article
4, the term "Government Obligations" shall only include obligations of the
United States or an agency or instrumentality of the United States.
(i) Registrar and Paying Agent. The Trustee shall initially serve as
Registrar and Paying Agent for the Senior Debentures.
(j) Initial Depositary. The initial depositary for the Senior
Debentures shall be The Depository Trust Company ("DTC").
ARTICLE III
Miscellaneous
Section 3.1 Counterparts. This Supplemental In denture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one instrument.
Section 3.2 Governing Law. This Supplemental In denture shall be
governed by and construed in accordance with the laws of the State of New York.
10
<PAGE> 12
Section 3.3 Headings. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
Section 3.4 Successor and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successor and assigns,
whether so expressed or not.
Section 3.5 Separability. In case any provision of this Supplemental
Indenture, the Senior Notes or the Senior Debentures shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.6 Benefits of Indenture. Nothing in this Supplemental
Indenture, in the Senior Notes or in the Senior Debentures, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture.
11
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and at tested, all as of the day and year first above written.
THE EQUITABLE COMPANIES
INCORPORATED
By: /s/ Stanley B. Tulin
---------------------------------
Name: Stanley B. Tulin
Title: Executive Vice President and
Chief Financial officer
[Seal]
Attest:
/s/ Linda Galasso
- --------------------------
Name: Linda Galasso
Title: Vice President and
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ W.B. Dodge
---------------------------------
Name: W.B. Dodge
Title: Vice President
[Seal]
Attest:
/s/ Wanda Eiland
- ---------------------------
Name: Wanda Eiland
Title: Trust Officer
12
<PAGE> 14
EXHIBIT A
CUSIP: 29444GAH0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
REGISTERED REGISTERED
THE EQUITABLE COMPANIES INCORPORATED
Original Principal Amount
(subject to reduction as
herein provided):
No. . . . . . $. . . . . . .
6 1/2% Senior Note due 2008
THE EQUITABLE COMPANIES INCORPORATED, a corporation duly organized
and existing under the laws of the State of Delaware (herein referred to as the
"Company", which term
<PAGE> 15
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars
($ ) or such amount as shall be the outstanding principal amount
hereof, on April 1, 2008 (subject to earlier redemption at the option of
the Company), and to pay interest on the unpaid principal amount hereof
(computed on the basis of a 360-day year of twelve 30-day months) from
April 6, 1998 or from the most recent interest payment date to which interest
has been paid or duly provided for on this Note. Interest on this Note shall
be payable semi-annually on April 1 and October 1 of each year (each an
"Interest Payment Date") commencing on October 1, 1998 at the rate of 6 1/2%
per annum until the principal hereof is paid or made available for payment.
The interest so payable on this Note which is punctually paid or
provided for shall be paid to the Person in whose name this Note is registered
at the close of business on the March 15 or September 15, as the case may be,
next preceding the applicable Interest Payment Date. The interest so payable on
this Note which is not punctually paid or provided for shall forthwith cease to
be payable to the Person in whose name this Note is registered on the relevant
record date, and such defaulted interest shall instead be payable to the Person
in whose name this Note is registered on the Special Record Date or other
specified date in accordance with the Indenture.
To the extent allowed by law, the Company will pay interest on
overdue installments of principal and interest at the rate of interest borne by
this Note.
Payment of the principal and interest on this Note will initially be
paid at the Corporate Trust Office of The Chase Manhattan Bank (formerly known
as Chemical Bank), as Trustee, or as otherwise provided in the Indenture, in
such coin or currency of the United States of America as at the
2
<PAGE> 16
time of payment is legal tender for payment of public and private debts;
provided that, in either case, the final principal payment shall be payable only
upon surrender of this Note to the Paying Agent.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the In denture referred to on the reverse hereof.
3
<PAGE> 17
IN WITNESS WHEREOF, THE EQUITABLE COMPANIES INCORPORATED, has
caused this instrument to be executed in its corporate name by the manual or
facsimile signatures of duly authorized officers, and impressed or imprinted
with its corporate seal or facsimile thereof, attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated:
[Seal] THE EQUITABLE COMPANIES
INCORPORATED
By:
---------------------------------
Name:
Title:
Attest:
By:
- -----------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Attest:
By:
- ------------------------------
Name:
Title:
This is one of the Securities of the series de scribed in the
within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By:
---------------------------
Authorized Signatory
4
<PAGE> 18
[FORM OF REVERSE OF GLOBAL SENIOR NOTE]
THE EQUITABLE COMPANIES INCORPORATED
6 1/2% Senior Note due 2008
This Note is one of the securities of the Company, all issued or to
be issued under an Indenture, dated as of December 1, 1993, duly executed and
delivered by the Company to The Chase Manhattan Bank (formerly known as Chemical
Bank), as trustee, as supplemented by certain supplemental indentures, including
the Fourth Supplemental Indenture, dated as of April 1, 1998 relating to the
notes issued hereby (as so supplemented, the "Indenture"), duly executed and
delivered by the Company to The Chase Manhattan Bank (formerly known as Chemical
Bank), as Trustee (hereinafter, the "Trustee", which term includes any successor
trustee under any such indenture), to which Indenture, and all indentures
supplemental thereto reference is hereby made for a description of the
respective rights and duties thereunder of the Trustee, the Company and the
Holders of the Senior Notes. This Note is one of a series of securities
designated as the 6 1/2% Senior Notes due 2008 (the "Senior Notes"), limited in
aggregate principal amount to $250,000,000, and is issued pursuant to the
Indenture.
The Senior Notes may be redeemed, in whole or in part, at any time
at the option of the Company prior to maturity at a price (the "Senior Notes
Redemption Price") equal to the sum of (i) the aggregate principal amount of
Senior Notes being redeemed plus accrued interest thereon to the date of
redemption and (ii) the Senior Notes Make-Whole Amount (as defined below), if
any.
Notice of an optional redemption of the Senior Notes will be given
to Holders of the Senior Notes at their addresses, as shown in the Register of
Holders of Senior Notes, not more than 60 nor less than 30 days prior to the
5
<PAGE> 19
date fixed for redemption, and otherwise in accordance with Article 10 of the
Indenture.
If funds for the redemption of the Senior Notes called for
redemption have been made available on such redemption date, the Senior Notes
will cease to bear interest on the date fixed for such redemption specified in
the notice of redemption and the only right of the holders thereof will be to
receive payment of the Senior Notes Redemption Price.
If fewer than all of the outstanding Senior Notes are to be
redeemed, such Senior Notes shall be redeemed pro rata based on the outstanding
principal amount of the Senior Notes being redeemed.
The term "Senior Notes Make-Whole Amount" shall mean, in connection
with any optional redemption of the Senior Notes, the excess, if any, of (i)
the aggregate present value as of the date of such redemption of each dollar of
principal of Senior Notes being redeemed and the amount of interest that would
have been payable in respect of such dollar if such prepayment had not been made
determined by discounting, on a semiannual basis, such principal and interest at
the Senior Notes Reinvestment Rate (determined on the Business Day immediately
preceding the date of such redemption) from the respective dates on which such
princi pal and interest would have been payable if such prepayment had not been
made, over (ii) the aggregate principal amount of the Senior Notes being
redeemed or paid plus accrued interest to the date of redemption.
The term "Senior Notes Reinvestment Rate" shall mean the arithmetic
mean of the yields for the two weeks set forth under the heading "Week Ending"
published in the Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month) corresponding to the
Senior Notes Weighted Average Life to Maturity of the principal amount of Senior
Notes being pre-
6
<PAGE> 20
paid or paid plus 15 basis points. If no maturity exactly corresponds to such
Senior Notes Weighted Average Life to Maturity, yields for the two published
maturities most closely corresponding to such Senior Notes Weighted Average Life
to Maturity shall be calculated pursuant to the immediately preceding sentence
and the Senior Notes Reinvestment Rate shall be interpolated or extrapolated
from such yields on a straight-line basis rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the Senior Notes
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Senior Notes Make-Whole Amount shall be used.
The term "Senior Notes Remaining Dollar-Years" shall mean, at any
time, with respect to any Senior Note, the result obtained by multiplying (i) an
amount equal to the then remaining principal payment at final maturity of such
Senior Note unpaid immediately prior to such time by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such time and
the date such required principal payment at final maturity is due.
The term "Statistical Release" shall mean the statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively traded U.S.
government securities adjusted to constant maturities or if such statistical
release is not published at the time of any determination under the Indenture,
then such other reason ably comparable index which shall be designated by the
Company.
The term "Senior Notes Weighted Average Life to Maturity" shall
mean, at any time, with respect to any Senior Note, the number of years
obtained by dividing the then Senior Notes Remaining Dollar-Years at such time
of such Senior Note by the then outstanding principal amount of such Senior
Note.
7
<PAGE> 21
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness evidenced by this Note upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
outstanding Senior Notes to modify the Indenture or any supplemental indenture
with respect to the rights of the Holders of the Senior Notes, provided that no
such modification shall (i) extend the fixed maturity of any Senior Notes, or
reduce the principal thereof, or reduce the rate or extend the time of payment
of interest thereon or reduce any premium payable upon the redemption thereof or
make the principal amount thereof or interest thereon payable in any coin or
currency other than that of the United States without the consent of the Holders
of each such Senior Note so affected or (ii) reduce the aforesaid percentage of
Senior Notes the consent of the Holders of which is required for any such
modification without the consent of the Holder of each such Senior Note so
affected. Any such consent given by the Holder of this Note shall be conclusive
and binding upon such Holder and all future Holders of this Note and of any
Senior Notes issued on registration hereof, the transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent is made upon
this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
8
<PAGE> 22
interest on this Note at the place, at the respective time, at the rate and in
the coin or currency herein prescribed.
This Note is issuable in registered form without coupons and, except
as provided in the Indenture, in denominations of $1,000 and any integral
multiples in excess thereof. This Note may be exchanged for a like aggregate
principal amount of Senior Notes of other authorized denominations only in the
manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note, the
Company shall execute and the Trustee shall authenticate and deliver a new Note
or Notes of like tenor and authorized denominations for an equal aggregate
principal amount in exchange herefor, subject to the limitations provided in
the Indenture.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Note is registered as the owner hereof for all
purposes (subject to the provisions hereof with respect to determination of the
person to whom interest is payable).
All terms used in this Note which are defined in the Indenture shall
have the respective meanings assigned to them in the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
9
<PAGE> 23
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED_____________________________________hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- -------------------------------------------------------------------------------
(Please print name and address of transferee)
- -------------------------------------------------------------------------------
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint Attorney to transfer this Note on the
securities register relating to this Note, with full power of substitution.
Dated:
------------------ -----------------------------------------
Signature
-----------------------------------------
Signature Guaranteed
NOTICE: The signature to the foregoing assignment must correspond to the name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
10
<PAGE> 24
EXHIBIT B
CUSIP: 29444GAJ6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC
OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED
THE EQUITABLE COMPANIES INCORPORATED
Original
Principal
Amount (subject
to reduction as
herein
provided):
No. . . . . . $. . . . .
7% Senior Debenture due 2028
THE EQUITABLE COMPANIES INCORPORATED, a corporation duly organized
and existing under the laws of the State of Delaware (herein
11
<PAGE> 25
referred to as the "Company", which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to or registered assigns, the
principal sum of Dollars ($ ) or such amount as shall be the out
standing principal amount hereof, on April 1, 2028 (subject to earlier
redemption at the option of the Company), and to pay interest on the unpaid
principal amount hereof (computed on the basis of a 360-day year of twelve
30-day months) from April 6, 1998 or from the most recent interest payment
date to which interest has been paid or duly provided for on this Debenture.
Interest on this Debenture shall be payable semi-annually on April 1 and
October 1 of each year (each an "Interest Payment Date") commencing on
October 1, 1998 at the rate of 7% per annum until the principal hereof is
paid or made available for payment.
The interest so payable on this Debenture which is punctually paid
or provided for shall be paid to the Person in whose name this Debenture is
registered at the close of business on the March 15 or September 15, as the case
may be, next preceding the applicable Interest Payment Date. The interest so
payable on this Debenture which is not punctually paid or provided for shall
forthwith cease to be payable to the Person in whose name this Debenture is
registered on the relevant record date, and such defaulted interest shall
instead be payable to the Person in whose name this Debenture is registered on
the Special Record Date or other specified date in accordance with the
Indenture.
To the extent allowed by law, the Company will pay interest on
overdue installments of principal and interest at the rate of interest borne by
this Debenture.
Payment of the principal and interest on this Debenture will
initially be paid at the Corporate Trust Office of The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee, or as otherwise provided in the
Indenture, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided that, in either case,
12
<PAGE> 26
the final principal payment shall be payable only upon surrender of this
Debenture to the Paying Agent.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
13
<PAGE> 27
IN WITNESS WHEREOF, THE EQUITABLE COMPANIES INCORPORATED, has caused
this instrument to be executed in its corporate name by the manual or facsimile
signatures of duly authorized officers, and impressed or imprinted with its
corporate seal or facsimile thereof, attested by the manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated:
[Seal] THE EQUITABLE COMPANIES
INCORPORATED
By:
---------------------------------
Name:
Title:
Attest:
By:
----------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
This is one of the Securities of the series described in the
within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By:
---------------------------------
Authorized Signatory
14
<PAGE> 28
[FORM OF REVERSE OF GLOBAL SENIOR DEBENTURE]
THE EQUITABLE COMPANIES INCORPORATED
7% Senior Debenture due 2028
This Debenture is one of the securities of the Company, all issued
or to be issued under an Indenture, dated as of December 1, 1993, duly executed
and delivered by the Company to The Chase Manhattan Bank (formerly known as
Chemical Bank), as trustee, as supplemented by certain supplemental indentures,
including the Fourth Supplemental Indenture, dated as of April 1, 1998 relating
to the debentures issued hereby (as so supplemented, the "Indenture"), duly
executed and delivered by the Company to The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee (hereinafter, the "Trustee", which term
includes any successor trustee under any such indenture), to which Indenture,
and all indentures supplemental thereto reference is hereby made for a
description of the respective rights and duties thereunder of the Trustee, the
Company and the Holders of the Senior Debentures. This Debenture one of a series
of securities designated as the 7% Senior Debentures due 2028 (the "Senior
Debentures"), limited in aggregate principal amount to $350,000,000, and is
issued pursuant to the Indenture.
The Senior Debentures may be redeemed, in whole or in part, at any
time at the option of the Company prior to maturity at a price (the "Senior
Debentures Redemption Price") equal to the sum of (i) the aggregate principal
amount of Senior Debentures being redeemed plus accrued interest thereon to the
date of redemption and (ii) the Senior Debentures Make-Whole Amount (as defined
below), if any.
Notice of an optional redemption of the Senior Debentures will be
given to Holders of the Senior Debentures at their addresses, as shown in the
Register of Holders of Senior Debentures, not more than 60 nor less than 30 days
prior to the date fixed for redemption, and otherwise in accordance with Article
10 of the Indenture.
15
<PAGE> 29
If funds for the redemption of the Senior Debentures called for
redemption have been made available on such redemption date, the Senior
Debentures will cease to bear interest on the date fixed for such redemption
specified in the notice of redemption and the only right of the holders thereof
will be to receive payment of the Senior Debentures Redemption Price.
If fewer than all of the outstanding Senior Debentures are to be
redeemed, such Senior Debentures shall be redeemed pro rata based on the
outstanding principal amount of the Senior Debentures being redeemed.
The term "Senior Debentures Make-Whole Amount" shall mean, in
connection with any optional redemption of the Senior Debentures, the excess, if
any, of (i) the aggregate present value as of the date of such redemption of
each dollar of principal of Senior Debentures being redeemed and the amount of
interest that would have been payable in respect of such dollar if such
prepayment had not been made determined by discounting, on a semiannual basis,
such principal and interest at the Senior Debentures Reinvestment Rate
(determined on the Business Day immediately preceding the date of such
redemption) from the respective dates on which such principal and interest would
have been payable if such prepayment had not been made, over (ii) the aggregate
principal amount of the Senior Debentures being redeemed or paid plus accrued
interest to the date of redemption.
The term "Senior Debentures Reinvestment Rate" shall mean the
arithmetic mean of the yields for the two weeks set forth under the heading
"Week Ending" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the Senior Debentures Weighted Average Life to Maturity of the
principal amount of Senior Debentures being prepaid or paid plus 20 basis
points. If no maturity exactly corresponds to such Senior Debentures Weighted
Average Life to Maturity, yields for the two published maturities most closely
corresponding to such Senior Debentures Weighted Average Life to Maturity shall
be calculated pursuant to the immediately preceding sentence and the Senior
Debentures Reinvestment Rate shall be interpolated or extrapolated from such
yields on a straight-line basis
16
<PAGE> 30
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Senior Debentures Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the Senior
Debentures Make-Whole Amount shall be used.
The term "Senior Debentures Remaining Dollar-Years" shall mean, at
any time, with respect to any Senior Debenture, the result obtained by
multiplying (i) an amount equal to the then remaining principal payment at final
maturity of such Senior Debenture unpaid immediately prior to such time by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such time and the date such required principal payment at final maturity
is due.
The term "Statistical Release" shall mean the statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively traded U.S.
government securities adjusted to constant maturities or if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index which shall be designated by the
Company.
The term "Senior Debentures Weighted Average Life to Maturity" shall
mean, at any time, with respect to any Senior Debenture, the number of years
obtained by dividing the then Senior Debentures Remaining Dollar-Years at such
time of such Senior Debenture by the then outstanding principal amount of such
Senior Debenture.
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness evidenced by this Debenture upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing, the
principal hereof may be declared, and upon such declaration become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
17
<PAGE> 31
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
outstanding Senior Debentures to modify the Indenture or any supplemental
indenture with respect to the rights of the Holders of the Senior Debentures,
provided that no such modification shall (i) extend the fixed maturity of any
Senior Debenture, or reduce the principal thereof, or reduce the rate or extend
the time of payment of interest thereon or reduce any premium payable upon the
redemption thereof or make the principal amount thereof or interest thereon
payable in any coin or currency other than that of the United States without the
consent of the Holders of each such Senior Debenture so affected or (ii) reduce
the aforesaid percentage of Senior Debentures the consent of the Holders of
which is required for any such modification without the consent of the Holder of
each such Senior Debenture so affected. Any such consent given by the Holder of
this Debenture shall be conclusive and binding upon such Holder and all future
Holders of this Debenture and of any Senior Debenture issued on registration
hereof, the transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the place, at the respective time, at
the rate and in the coin or currency herein prescribed.
This Debenture is issuable in registered form without coupons and,
except as provided in the Indenture, in denominations of $1,000 and any integral
multiples in excess thereof. This Debenture may be exchanged for a like
aggregate principal amount of Senior Debentures of other authorized
denominations only in the manner and subject to the limitations provided in the
Indenture.
Upon due presentment for registration of transfer of this Debenture,
the Company shall execute and the Trustee shall authenticate and deliver a new
Debenture or Debentures of like tenor
18
<PAGE> 32
and authorized denominations for an equal aggregate principal amount in exchange
herefor, subject to the limitations provided in the Indenture.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Debenture is registered as the owner
hereof for all purposes (subject to the provisions hereof with respect to
determination of the person to whom interest is payable).
All terms used in this Debenture which are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
19
<PAGE> 33
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Debenture)
FOR VALUE RECEIVED_____________________________ hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- -------------------------------------------------------------------------------
(Please print name and address of transferee)
- -------------------------------------------------------------------------------
this Debenture, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint Attorney to
transfer this Debenture on the securities register relating to this Debenture,
with full power of substitution.
Dated:
--------------------- -------------------------------------
Signature
-------------------------------------
Signature Guaranteed
NOTICE: The signature to the foregoing assignment must correspond to the name as
written upon the face of this Debenture in every particular, without alteration
or any change whatsoever.
20
