<PAGE> 1
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
THE EQUITABLE COMPANIES INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3623351
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
THE EQUITABLE COMPANIES INCORPORATED
1997 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
-------------------
ROBERT E. GARBER, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
THE EQUITABLE COMPANIES INCORPORATED
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 554-1234
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: From time to time after this
Registration Statement becomes effective.
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed maximum Proposed maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price (2) registration fee
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share . . . . . . 9,316,265 (1) $547,330,569 $161,463
</TABLE>
(1) Not applicable.
(2) In accordance with Rules 457(c) and 457(h), based upon an assumed price
of $58.75 per share, the average of the high and low prices of The
Equitable Companies Incorporated Common Stock on March 24, 1998 as
reported on the New York Stock Exchange Consolidated Tape.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Incorporated by reference in this Registration Statement are
the following documents heretofore filed by The Equitable Companies Incorporated
(the "Company") with the Securities and Exchange Commission (the "SEC") pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act"):
(a) The Company's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company or the
Company's 1997 Stock Incentive Plan (the "Plan")
pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the
annual report referred to in (a) above; and
(c) The description of the Company's Common Stock, par
value $.01 per share (the "Common Stock") contained
in a registration statement filed under the Exchange
Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered hereby have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Robert E. Garber, Executive Vice President and General Counsel of the
Company has rendered an opinion as to the legality of the securities being
registered under the Plan. Mr. Garber has been granted options on shares of the
Company's common stock pursuant to the Plan.
1
<PAGE> 3
The consolidated financial statements and related financial statement
schedules of the Company as of December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997 incorporated by reference in
this Registration Statement have been so incorporated in reliance on the reports
of Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, as amended,
provides in regard to indemnification of directors and officers as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
2
<PAGE> 4
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section,
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because the person has
met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
3
<PAGE> 5
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
Article SIXTH of the Company's Restated Certificate of Incorporation
provides in regard to indemnification of directors and officers as follows:
SIXTH: (i) Each person who is or was or had agreed to become a
Director or officer of the Corporation, and each person who is or was serving or
who had agreed to serve at the request of the Board of Directors or an officer
of the Corporation as a director or officer of another corporation (including,
without limitation, The Equitable Life Assurance Society of the United States
and its subsidiaries), partnership, joint venture, trust, employee benefit plan
or other enterprise (including the heirs, executor, administrators or estate of
such person), shall be indemnified by the Corporation, and (ii) each person who
is or was or who had agreed to become an employee or agent of the Corporation or
who is or was serving or who had agreed to serve at the request of the
4
<PAGE> 6
Board of Directors or an officer of the Corporation as an employee or agent of
another corporation (including, without limitation, The Equitable Life Assurance
Society of the United States and its subsidiaries), partnership, joint venture,
trust, employee benefit plan or other enterprise (including the heirs, executor,
administrators or estate of such person) may be indemnified by the Corporation,
in each case in accordance with the By-Laws, to the full extent permitted from
time to time by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereafter in
effect. Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which provide
for indemnification greater or different than that provided in this Article VI.
Any amendment or repeal of this Article VI shall not adversely affect any right
or protection existing hereunder immediately prior to such amendment or repeal.
Article VI of the Company's By-Laws provides in regard to
indemnification of directors and officers as follows:
Section 6.01. Nature of Indemnity. The Corporation shall
indemnify any person who was or is a party or, is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
or she is or was or has agreed to become a Director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a Director or officer of another corporation (including, without
limitation, The Equitable Life Assurance Society of the United States and its
subsidiaries), partnership, joint venture, trust or other enterprise, including
an employee benefit plan, or by reason of any action alleged to have been taken
or omitted in such capacity, and may indemnify any person who was or is a party
or is threatened to be made a party to such an action, suit or proceeding by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of another corporation
(including, without limitation, The Equitable Life Assurance Society of the
United States and its subsidiaries), partnership, joint venture, trust or other
enterprise, including an employee benefit plan, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal
action or proceeding had no reasonable cause to believe his or her conduct was
unlawful; except that in the case of an action or suit by or in the right of the
Corporation to procure a judgment in its favor (i) such indemnification shall be
limited to expenses (including attorneys' fees) actually and reasonably incurred
by such person in the defense or settlement of such action or suit, and (ii) no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of
5
<PAGE> 7
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 6.02. SUCCESSFUL DEFENSE. To the extent that a
Director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 6.01 hereof or in defense of any claim, issue or matter therein, he
or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
Section 6.03 DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 6.01
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Section 6.01 hereof. Any indemnification of an
employee or agent of the Corporation under Section 6.01 hereof (unless ordered
by a court) may be made by the Corporation upon a determination that
indemnification of the employee or agent is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in Section 6.01
hereof. Any such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
Section 6.04. ADVANCE PAYMENT OF EXPENSES. Expenses (including
attorneys' fees) incurred by a Director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of any undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article VI. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate. The Board of Directors may authorize
the Corporation's counsel to represent such Director, officer, employee or agent
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
6
<PAGE> 8
Section 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND
OFFICERS. Any indemnification of a Director or officer of the Corporation under
Sections 6.01 and 6.02, or advance of costs, charges and expenses to a Director
or officer under Section 6.04 of this Article VI, shall be made promptly, and in
any event within 30 days, upon the written request of the Director or officer.
If a determination by the Corporation that the Director or officer is entitled
to indemnification pursuant to this Article is required, and the Corporation
fails to respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expenses, in whole or
in part, or if payment in full pursuant to such request is not made within 30
days, the right to indemnification or advances as granted by this Article VI
shall be enforceable by the Director or officer in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.04 of this
Article VI where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 6.01 of this Article, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 6.01 of this Article VI, nor
the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the General Corporation Law of the State of Delaware are in
effect, and any repeal or modification thereof shall not affect any right or
obligation then existing with respect to any state of facts then or previously
existing or any action, suit or proceeding previously or thereafter brought or
threatened in whole or in part upon any such state of facts. Such a "contract
right" may not be modified retroactively without the consent of such Director,
officer, employee or agent.
The indemnification provided by this Article VI shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding
7
<PAGE> 9
such office, and shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 6.07. INSURANCE. The Corporation shall purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a Director or officer of another corporation (including,
without limitation, The Equitable Life Assurance Society of the United States
and its subsidiaries), partnership, joint venture, trust or other enterprise,
including an employee benefit plan, against any liability asserted against him
or her and incurred by him or her on his or her behalf in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of this Article, provided that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors.
Section 6.08. SEVERABILITY. If this Article or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director or
officer and may indemnify each employee or agent of the Corporation as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, provides in regard to the limitation of liability of directors and
officers as follows:
(b) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section, the certificate
of incorporation may also contain any or all of the following matters:
* * * *
(7) A provision eliminating or limiting the personal liability
of a director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director: (i) For any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of this Title; or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision becomes effective.
All references in this paragraph to a director shall also be deemed to refer (x)
to a member of the governing body of a corporation which is not authorized to
issue capital stock, and (y) to such other
8
<PAGE> 10
person or persons, if any, who, pursuant to a provision of the certificate of
incorporation in accordance with Section 141(a) of this title, exercise or
perform any of the powers or duties otherwise conferred or imposed upon the
board of directors by this title.
Article FIFTH (f) of the Company's Restated Certificate of
Incorporation, as amended, provides in regard to the limitation of liability of
directors and officers as follows:
(f) No Director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his or her
fiduciary duty as a Director, provided that nothing contained in this paragraph
(f) of this Article V shall eliminate or limit the liability of a director (i)
for any breach of the Director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the laws, (iii) under Section
174 of the General Corporation Law of the State of Delaware or (iv) for any
transaction from which the Director derived an improper personal benefit. No
amendment, modification or repeal of this paragraph (f) of this Article V shall
adversely affect any right or protection of a Director that exists at the time
of such amendment, modification or repeal.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
Exhibits Description of Exhibits
4.1 Form of Restated Certificate of Incorporation of The Equitable
Companies Incorporated. Incorporated by reference to Exhibit
4.01(a) of the Company's Registration Statement on Form S-3
(Registration No. 33-03224).
4.2 Form of Amendment to Certificate of Incorporation of The
Equitable Companies Incorporated. Incorporated by reference to
Exhibit 4.01(g) of the Company's Registration Statement on
Form S-3 (Registration No. 33-03224).
4.3 Form of By-Laws of the Company. Incorporated by reference to
Exhibit 4.02 of the Company's Registration Statement on Form
S-3 (Registration No. 33-03224).
4.4 Form of Certificate for the Company's Common Stock, par value
$.01 per share. Incorporated by reference to Exhibit 4(c) to
the Company's Registration Statement on Form S-1 (Registration
No. 33-48115) as filed with the SEC on May 26, 1992 (the
"1992 Form S-1").
9
<PAGE> 11
4.5 Certificate of Designations of Cumulative Convertible
Preferred Stock, Series D. Incorporated by reference to
Exhibit 4.05 of the Company's Form S-4 Registration Statement
(No. 33-73102) dated December 17, 1993 (the "1993 Form S-4").
4.6 Indenture, dated as of December 1, 1993, from the Company to
Chemical Bank, as Trustee. Incorporated by reference to
Exhibit 4.02 of the 1993 Form S-4.
4.7 First Supplemental Indenture, dated December 1, 1993, from the
Company to Chemical Bank, as Trustee. Incorporated by
reference to Exhibit 4.03 to the 1993 Form S-4.
4.8 Form of Second Supplemental Indenture. Incorporated by
reference to Exhibit 4.04 of the 1993 Form S-4.
4.9 Subordinated Indenture, dated as of October 22, 1994, between
the Company and Shawmut Bank Connecticut, National
Association, as Trustee. Incorporated by reference to Exhibit
4.10 to the Company's Current Report on Form 8-K dated
December 19, 1994.
4.10 Form of Third Supplemental Indenture, dated as of December 8,
1994 from the Company to Chemical Bank, as Trustee, filed as
Exhibit 4.05 to the Company's Current Report on Form 8-K dated
December 1, 1994.
4.11 First Supplemental Indenture, dated as of October 22, 1994,
between the Company and Shawmut Bank Connecticut, National
Association, as Trustee. Incorporated by reference to Exhibit
4.11 of the Company's Current Report on Form 8-K dated
December 19, 1994.
5 Opinion of Robert E. Garber, Senior Vice President and General
Counsel of the Company (filed herewith).
23.1 Consent of Price Waterhouse LLP (filed herewith).
23.2 Consent of Robert E. Garber, Senior Vice President and General
Counsel of the Company (included in the opinion filed herewith
as item 5).
24. Powers of Attorney of certain officers and directors of the
Company (included on the signature pages hereto).
99. The Equitable Companies Incorporated 1997 Stock Incentive
Plan. Incorporated by reference to Exhibit 10.6(b) of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (the "1996 Annual Report").
10
<PAGE> 12
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of the Plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
11
<PAGE> 13
(c) Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
12
<PAGE> 14
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
30th day of March, 1998.
THE EQUITABLE COMPANIES
INCORPORATED
By: /s/ Edward D. Miller
-----------------------------------------
Edward D. Miller
President and Chief Executive Officer,
Director
S-1
<PAGE> 15
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Henry Q. Conley, St. Clair O.
Davis and Linda L. Harnisch as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments or post-effective
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Claude Bebear Chairman of the Board, Director March 30, 1998
- ------------------------
Claude Bebear
/s/ Edward D. Miller President and Chief Executive March 30, 1998
- ------------------------ Officer, Director
Edward D. Miller
/s/ Joseph J. Melone Chairman of the Executive March 30, 1998
- ------------------------- Committee, Director
Joseph J. Melone
/s/ Michael Hegarty Senior Executive Vice President and March 30, 1998
- ------------------------- Chief Operating Officer, Director
Michael Hegarty
/s/ Stanley B. Tulin Executive Vice President and March 30, 1998
- -------------------- Chief Financial Officer
Stanley B. Tulin
/s/ Alvin H. Fenichel Senior Vice President and March 30, 1998
- --------------------- Controller
Alvin H. Fenichel
/s/ Henri de Castries Vice Chairman of the Board, March 30, 1998
- --------------------- Director
Henri de Castries
/s/ John S. Chalsty Director March 30, 1998
- -------------------
John S. Chalsty
</TABLE>
S-2
<PAGE> 16
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Francoise Colloc'h Director March 30, 1998
- ---------------------------
Francoise Colloc'h
/s/ Joseph L. Dionne Director March 30, 1998
- ---------------------------
Joseph L. Dionne
/s/ William T. Esrey Director March 30, 1998
- ---------------------------
William T. Esrey
/s/ Jean-Rene Fourtou Director March 30, 1998
- ----------------------------
Jean-Rene Fourtou
/s/ Jacques Friedmann Director March 30, 1998
- ---------------------------
Jacques Friedmann
/s/ Donald J. Greene Director March 30, 1998
- ---------------------------
Donald J. Greene
/s/ Anthony J. Hamilton Director March 30, 1998
- ---------------------------
Anthony J. Hamilton
/s/ John T. Hartley Director March 30, 1998
- ---------------------------
John T. Hartley
/s/ John H.F. Haskell, Jr. Director March 30, 1998
- ---------------------------
John H.F. Haskell, Jr.
/s/ Mary R. (Nina) Henderson Director March 30, 1998
- ---------------------------
Mary R. (Nina) Henderson
/s/ W. Edwin Jarmain Director March 30, 1998
- ---------------------------
W. Edwin Jarmain
/s/ Didier Pineau-Valencienne Director March 30, 1998
- ---------------------------
Didier Pineau-Valencienne
/s/ George J. Sella, Jr. Director March 30, 1998
- ---------------------------
George J. Sella, Jr.
/s/ Dave H. Williams Director March 30, 1998
- ---------------------------
Dave H. Williams
</TABLE>
S-3
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Description of Exhibit Pages
- ----------- ---------------------- -----
<S> <C> <C>
4.1 Form of Restated Certificate of Incorporation of The
Equitable Companies Incorporated. Incorporated by
reference to Exhibit 4.01(a) of the Company's Registration
Statement on Form S-3 (Registration No. 33-03224).
4.2 Form of Amendment to Restated Certificate of Incorporation
of The Equitable Companies Incorporated. Incorporated by
reference to Exhibit 4.01(g) of the Company's Registration
Statement on Form S-3 (Registration No. 33-03224).
4.3 Form of By-Laws of the Company. Incorporated by
reference to Exhibit 4.02 of the Company's Registration
Statement on Form S-3 (Registration No. 33-03224).
4.4 Form of Certificate for the Company's Common Stock, par value
$.01 per share. Incorporated by reference to Exhibit 4(c) of
the Company's Registration Statement on Form S-1 (Registration
No. 33-48115) as filed with the SEC on May 26, 1992 (the
"1992 Form S-1").
4.5 Certificate of Designations of Cumulative Convertible
Preferred Stock, Series D. Incorporated by reference to
Exhibit 4.05 of the Company's Form S-4 Registration
Statement (No. 33-73102) dated December 17, 1993
(the "1993 Form S-4").
4.6 Indenture, dated as of December 1, 1993, from the Company to
Chemical Bank, as Trustee. Incorporated by reference to
Exhibit 4.02 to the 1993 Form S-4.
4.7 First Supplemental Indenture, dated December 1, 1993, from the
Company to Chemical Bank, as Trustee. Incorporated by
reference to Exhibit 4.03 to the 1993 Form S-4.
4.8 Form of Second Supplemental Indenture. Incorporated
by reference to Exhibit 4.04 of the 1993 Form S-4.
</TABLE>
E-1
<PAGE> 18
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Description of Exhibit Pages
- ----------- ---------------------- -----
<S> <C> <C>
4.9 Subordinated Indenture, dated as of October 22, 1994, between
the Company and Shawmut Bank Connecticut, National
Association, as Trustee. Incorporated by reference to Exhibit
4.10 to the Company's Current Report on Form 8-K dated
December 19, 1994.
4.10 Form of Third Supplemental Indenture, dated as of December 8,
1994 from the Company to Chemical Bank, as Trustee, filed as
Exhibit 4.05 to the Company's Current Report on Form 8-K dated
December 1, 1994.
4.11 First Supplemental Indenture, dated as of October 22, 1994,
between the Company and Shawmut Bank Connecticut, National
Association, as Trustee. Incorporated by reference to Exhibit
4.11 of the Company's Current Report on Form 8-K dated
December 19, 1994.
5 Opinion of Robert E. Garber, Executive Vice President and
General Counsel of the Company (filed herewith).
23.1 Consent of Price Waterhouse LLP (filed herewith).
23.2 Consent of Robert E. Garber, Executive Vice President and General
Counsel of the Company (included in the opinion filed herewith
as Exhibit 5).
24 Powers of Attorney of certain officers and directors of the
Company (included on the signature pages hereto).
99 The Equitable Companies Incorporated 1997 Stock
Incentive Plan. Incorporated by reference to Exhibit
10.6(b) of the Company's annual report on Form 10-K
for the year ended December 31, 1996.
</TABLE>
E-2
<PAGE> 1
ROBERT E. GARBER
Executive Vice President and General Counsel
THE EQUITABLE COMPANIES INCORPORATED
1290 Avenue of the Americas
New York, New York 10104
(212) 314-4530
March 30, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
The Equitable Companies Incorporated
Registration Statement on Form S-8
Dear Sirs:
I am Executive Vice President and General Counsel for The Equitable
Companies Incorporated, a Delaware corporation (the "Company"), and am head of
its Law Department which has acted as counsel to the Company in connection with
the preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's Registration Statement on Form S-8 (the "Registration
Statement"), relating to the issuance of up to 9,316,265 shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), under the Company's
1997 Stock Incentive Plan, as amended (the "Plan").
I or members of the Law Department under my supervision have examined
originals, or copies certified or otherwise identified to my or their
satisfaction, of such records, documents, certificates and other instruments as
in my judgment are necessary or appropriate to enable me to render the opinion
expressed below.
Based upon the foregoing, I am of the opinion that the shares of Common
Stock being registered under the Registration Statement have been duly
authorized and, when issued pursuant to the Plan, will be validly issued, fully
paid and non-assessable.
My opinion expressed above is limited to the laws of the State of New
York and the corporate laws of the State of Delaware.
I am delivering this opinion to you pursuant to the requirements of
Form S-8.
I hereby consent to the filing of this opinion as an exhibit to, and
reference to this opinion in, the Registration Statement.
Very truly yours,
/s/ Robert E. Garber
<PAGE> 1
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 10, 1998 which appears on
page F-1 of The Equitable Companies Incorporated's Annual Report on Form 10-K
for the year ended December 31, 1997. We also consent to the incorporation by
reference of our report on the Consolidated Financial Statement Schedules which
appears on page F-54 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Interests of Named Experts and Counsel" in
such Registration Statement.
Price Waterhouse LLP
New York, New York
March 31, 1998
