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STOCK PURCHASE AGREEMENT
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AMONG
CREDIT SUISSE GROUP,
AXA,
AXA FINANCIAL, INC.,
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
AND
AXA PARTICIPATIONS BELGIUM
DATED AS OF AUGUST 30, 2000
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions................................................1
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Shares............................5
SECTION 2.02 Purchase Price.............................................5
SECTION 2.03 Closing....................................................5
SECTION 2.04 Closing Deliveries by the Sellers..........................5
SECTION 2.05 Closing Deliveries by Purchaser............................5
SECTION 2.06 Additional Documents and Actions...........................6
SECTION 2.07 Anti-Dilution Adjustments..................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS REGARDING THE
SELLERS
SECTION 3.01 Organization, Authority and Qualification of the Seller....6
SECTION 3.02 No Conflict................................................6
SECTION 3.03 Valid Issuance; Ownership of the Shares....................7
SECTION 3.04 Absence of Litigation......................................7
SECTION 3.05 Brokers....................................................7
SECTION 3.06 Securities Matters.........................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
SECTION 4.01 Organization and Authority of Purchaser....................8
SECTION 4.02 No Conflict; Required Filings and Consents.................8
SECTION 4.03 Purchaser Shares...........................................9
SECTION 4.04 No Distribution............................................9
SECTION 4.05 Financial Ability..........................................9
SECTION 4.06 Brokers....................................................9
SECTION 4.07 No Transaction or Stamp Tax................................9
SECTION 4.08 Bank Change of Control Statutes...........................10
SECTION 4.09 Derivative Instruments....................................10
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SECTION 4.10 Financial Statements......................................10
SECTION 4.11 Absence of Certain Changes or Events......................11
SECTION 4.12 Absence of Litigation.....................................11
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Voting Agreement..........................................11
SECTION 5.02 No Disposition or Encumbrance of the Seller's Shares......12
SECTION 5.03 Company Board Representation..............................12
SECTION 5.04 Notification of Certain Matters...........................12
SECTION 5.05 Further Action; Reasonable Best Efforts...................12
SECTION 5.06 Public Announcements......................................13
SECTION 5.07 Purchaser Shareholders Meeting............................14
SECTION 5.08 Disposition of Purchaser Shares...........................14
SECTION 5.09 Certain Transactions......................................14
SECTION 5.10 Post-Closing Share Purchase...............................15
SECTION 5.11 1940 Act..................................................16
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01 Conditions to the Closing.................................16
SECTION 6.02 Conditions to Obligations of the Sellers..................17
SECTION 6.03 Conditions to Obligations of Purchaser....................17
ARTICLE VII
TERMINATION AND WAIVER
SECTION 7.01 Termination...............................................18
SECTION 7.02 Effect of Termination.....................................19
SECTION 7.03 Waiver....................................................19
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01 Survival of Representations and Warranties................19
SECTION 8.02 Expenses..................................................19
SECTION 8.03 Notices...................................................19
SECTION 8.04 Headings..................................................20
SECTION 8.05 Severability..............................................20
SECTION 8.06 Entire Agreement..........................................21
SECTION 8.07 Assignment................................................21
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SECTION 8.08 Parties in Interest.......................................21
SECTION 8.09 Governing Law.............................................21
SECTION 8.10 Waiver of Jury Trial......................................21
SECTION 8.11 Counterparts..............................................21
SECTION 8.12 Specific Performance......................................22
SCHEDULE A Sellers: Share Ownership and Consideration
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STOCK PURCHASE AGREEMENT, dated as of August 30, 2000 (this
"AGREEMENT"), among CREDIT SUISSE GROUP, a Swiss AKTIENGESELLSCHAFT
("PURCHASER"), AXA, a French SOCIETE ANONYME ("AXA"), AXA FINANCIAL, INC., a
Delaware corporation ("FINANCIAL"), THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES, a New York corporation ("EQUITABLE"), and AXA PARTICIPATIONS
BELGIUM, a Belgian corporation (together with each of AXA, Financial and
Equitable, a "SELLER" and, collectively, the "SELLERS"), as stockholders of
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, each Seller is the record and beneficial owner of the
number of shares of common stock, par value $0.10 per share, designated
Donaldson, Lufkin & Jenrette, Inc. - DLJ common stock of the Company ("COMMON
STOCK") set forth next to such Seller's name on Schedule A hereto (such Seller's
"SHARES");
WHEREAS, each Seller wishes to sell to Purchaser, and Purchaser
wishes to purchase from each Seller, such Seller's Shares, upon the terms and
subject to the conditions set forth herein; and
WHEREAS, Purchaser and Diamond Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Purchaser ("MERGER SUB"), are
separately entering into an Agreement and Plan of Merger dated as of the date
hereof (as amended from time to time, the "MERGER AGREEMENT") with the Company,
pursuant to which Merger Sub agrees to commence a cash tender offer (as such
tender offer may hereafter be amended from time to time, the "Offer") to acquire
all the issued and outstanding shares of Common Stock, for $90 per share of
Common Stock, and following the consummation of the Offer and the transactions
contemplated by the Merger Agreement, to merge with and into the Company (the
"MERGER").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, Purchaser and the Sellers hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. (a) For purposes of this Agreement:
"ACQUISITION PROPOSAL" means (i) any proposal or offer from any
person relating to any direct or indirect acquisition of (A) all or a
substantial part of the assets of the Company or of any Material Subsidiary or
(B) over 20% of any class of equity securities of the Company or of any of its
subsidiary; (ii) any tender offer or exchange offer, as defined pursuant to the
Securities Exchange Act of 1934, as amended, that, if consummated, would result
in any person beneficially owning 20% or more of any class of equity securities
of the Company or any subsidiary of the Company; (iii) any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any Material Subsidiary, other
than the transactions contemplated by the Merger Agreement; or (iv) any other
transaction the consummation of which would reasonably be expected to impede,
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2
interfere with, prevent or materially delay the transactions contemplated by the
Merger Agreement.
"BUSINESS DAY" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings, or, in the case of determining a date when any payment is due, any day
on which banks are not required or authorized to close in The City of New York
or Zurich, Switzerland.
"KNOWLEDGE OF PURCHASER " means the knowledge of any executive
officer of Purchaser, after due inquiry.
"LIEN" means any lien, mortgage, deed or trust, pledge,
hypothecation, security interest, encumbrance, claim or charge of any kind, or
any conditional sale agreement or other agreement to create any of the
foregoing.
"MATERIAL ADVERSE EFFECT" means, with respect to a person, an
effect, change, event or occurrence that, individually or in the aggregate with
other such effects, changes, events or occurrences, is or would reasonably be
expected to be materially adverse to the financial condition, business, assets
or results of operations of such person and its subsidiaries taken as a whole,
other than any change, effect, event or occurrence relating to (i) the United
States, European or global economy or United States, European or global
securities markets in general, (ii) the Merger Agreement or the transactions
contemplated thereby or the announcement thereof, (iii) changes in legal or
regulatory conditions that affect in general the businesses in which such person
and its subsidiaries are engaged or (iv) the financial services industry in
general, and not specifically relating to such person or its subsidiaries.
"MATERIAL SUBSIDIARY" shall mean each subsidiary of the Company that
is material to the business, financial condition or results of operation of the
Company and its subsidiaries taken as a whole.
"PERSON" means an individual, corporation, partnership, limited
partnership, limited liability company, syndicate, person (including, without
limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act),
trust, association or entity or government, political subdivision, agency or
instrumentality of a government.
"PURCHASER SHARE" means a registered share, nominal value CHF 20 per
share, of Purchaser.
"PURCHASE PRICE BANK ACCOUNT" means, with respect to each Seller, a
bank account to be designated by such Seller in a written notice to Purchaser at
least five Business Days before the Closing.
"SUBSIDIARY" or "SUBSIDIARIES" have the meanings assigned in Rule
1-02 of Regulation S-X of the Securities and Exchange Commission; PROVIDED,
HOWEVER, that (x) any investment account advised or managed by such person or
one of its subsidiaries or affiliates on behalf of a third party and (y) any
partnership, limited liability company, or other similar investment vehicle or
entity engaged in the business of making investments of which such person or one
of its subsidiaries or affiliates acts as the general partner, managing member,
manager,
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3
investment advisor, principal underwriter or the equivalent shall not be deemed
a subsidiary of such person.
"TAXES" shall mean any and all taxes, levies, duties, tariffs,
imposts and other similar charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any Governmental Authority or taxing authority or
arising as a result of a contractual obligation or other arrangements with
respect thereto, including, without limitation: taxes or other similar charges
on or with respect to income, franchise, windfall or other profits, gross
receipts, property, sales, use, capital stock, payroll, employment, social
security, workers' compensation, unemployment compensation or net worth; taxes
or other charges in the nature of excise, withholding, ad valorem, stamp,
transfer, value-added or gains taxes; and customs duties, tariffs and similar
charges.
(b) the following terms have the following meaning set forth in the
Section set forth below:
DEFINED TERM LOCATION OF DEFINITION
Action ss.3.04
Agreement Preamble
AXA Preamble
Bank Board Approval ss.5.09(a)
Bank Holdings LLC ss.5.09(b)
Cash Purchase Price ss.2.02
CBCA ss.4.08(a)
Closing ss.2.03
Closing Date ss.2.03
Common Stock Recitals
Company Preamble
EC Merger Regulation ss.2.03
Equitable Preamble
Financial Preamble
Fund ss.5.11(b)
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Governmental Authority ss.3.02(b)
HSR Act ss.2.03
Irrevocable Proxy ss.5.01(a)
Law ss.3.02(a)
Merger Recitals
Merger Agreement Recitals
Merger Sub Recitals
1940 Act ss.5.11(a)
Offer Recitals
Purchaser Annual Reports ss.4.10(a)
Purchaser Interim Reports ss.4.10(a)
Purchaser Reports ss.4.10(a)
Purchaser Shareholder Proposal ss.5.07
Purchaser Shareholders Meeting ss.5.07
Purchaser Preamble
Requisite Vote ss.4.01
Seller Preamble
Shares Recitals
State Banking Affiliate ss.4.08(b)
UK Bank ss.5.09(b)
Winthrop ss.5.09(a)
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PURCHASE AND SALE
SECTION 2.01 PURCHASE AND SALE OF THE SHARES. Upon the terms and
subject to the conditions contained in this Agreement, at the Closing, each
Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from each
Seller, the number of Shares set forth next to such Seller's name on Schedule A
hereto.
SECTION 2.02 PURCHASE PRICE. The purchase price for each Seller's
Shares shall consist of the amount of immediately available United States
dollars (such Seller's "CASH PURCHASE PRICE") and the number of Purchaser Shares
set forth next to such Seller's name on Schedule A hereto.
SECTION 2.03 CLOSING. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Sellers' Shares contemplated by this
Agreement shall take place at a closing (the "CLOSING") to be held at the
offices of Niederer Kraft & Frey, Bahnhofstrasse 13, Zurich, Switzerland at 9:00
A.M. Zurich time on the Business Day following the later to occur of (i)
expiration or termination of all applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and satisfaction of the Council Regulation (EEC) No. 4064/89 ("EC MERGER
REGULATION") and (ii) satisfaction or waiver of all other conditions to the
obligations of the parties set forth in Article VI or at such other place or at
such other time or on such other date as Financial and Purchaser may mutually
agree upon in writing (the date on which the Closing takes place being the
"CLOSING DATE").
SECTION 2.04 CLOSING DELIVERIES BY THE SELLERS. At the Closing, each
Seller shall deliver or cause to be delivered to Purchaser:
(a) stock certificates evidencing the Seller's Shares duly endorsed
in blank, or accompanied by stock powers duly executed in blank, in form
reasonably satisfactory to Purchaser and with all required stock transfer tax
stamps affixed;
(b) a receipt for an amount equal to such Seller's Cash Purchase
Price and the number of Purchaser Shares received by such Seller; and
(c) the certificates and other documents required to be delivered
pursuant to Section 6.03.
SECTION 2.05 CLOSING DELIVERIES BY PURCHASER. At the Closing,
Purchaser shall deliver to each Seller:
(a) an amount equal to such Seller's Cash Purchase Price by wire
transfer in immediately available funds to such Seller's Purchase Price Bank
Account;
(b) a certificate representing the number of Purchaser Shares set
forth next to such Seller's name on Schedule A hereto; and
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(c) the certificates and other documents required to be delivered
pursuant to Section 6.02.
SECTION 2.06 ADDITIONAL DOCUMENTS AND ACTIONS. Each of the parties
hereto further agrees to deliver, or cause to be delivered, all documents and
take, or cause to be taken, prior to the Closing all actions reasonably
necessary under applicable Law to effect the valid issuance and transfer of
Purchaser Shares provided for in this Article II.
SECTION 2.07 ANTI-DILUTION ADJUSTMENTS. If prior to the Closing
Date, Purchaser changes (or establishes a record date for changing) the number
of Purchaser Shares issued and outstanding prior to the Closing Date by way of a
split, dividend, combination, recapitalization, exchange of shares or similar
transaction with respect to the outstanding Purchaser Shares, the number of
Purchaser Shares to be received by the Sellers under this Agreement shall be
adjusted appropriately to provide to the Sellers the same economic effect as
contemplated by this Agreement prior to such split, dividend, combination,
recapitalization, exchange of shares or similar transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
SELLERS REGARDING THE SELLERS
As an inducement to Purchaser to enter into this Agreement, each
Seller hereby represents and warrants to Purchaser as follows:
SECTION 3.01 ORGANIZATION, AUTHORITY AND QUALIFICATION OF THE
SELLER. Each of the Sellers is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation and has all necessary corporate power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. Each of the Sellers is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified would not adversely affect or materially delay the
ability of any of the Sellers to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement. The execution and
delivery of this Agreement by each of the Sellers, the performance by each of
the Sellers of its obligations hereunder and the consummation by each of the
Sellers of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of each such Seller. This Agreement has been duly
executed and delivered by each of the Sellers, and (assuming due authorization,
execution and delivery by Purchaser) this Agreement constitutes a legal, valid
and binding obligation of each of the Sellers enforceable against it in
accordance with its terms.
SECTION 3.02 NO CONFLICT. (a) The execution and delivery of this
Agreement by each of the Sellers do not, and the performance of this Agreement
by each of the Sellers shall not, (i) conflict with or violate the certificate
of incorporation, by-laws or equivalent organizational documents of any of the
Sellers, (ii) assuming satisfaction of the requirements set forth in Section
3.02(b) below and the accuracy of Purchaser's representations and warranties set
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forth in Section 4.08, conflict with or violate any United States or non-United
States statute, law, ordinance, regulation, rule, code, executive order,
injunction, judgment, decree or other order ("LAW") applicable to any of the
Sellers or by which any property or asset of any of the Sellers is bound or
affected or (iii) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien on any property or asset of any of the
Sellers pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation, except for
any such conflicts, violations, breaches, defaults or other occurrences that
would not adversely affect or materially delay the ability of any of the Sellers
to carry out its obligations under, and to consummate the transactions
contemplated by, this Agreement.
(b) Assuming the accuracy of Purchaser's representations and
warranties set forth in Section 4.08, the execution and delivery of this
Agreement by each of the Sellers do not, and the performance of this Agreement
by each of the Sellers shall not, require any consent, approval, authorization
or permit of, or filing with or notification to, any United States federal,
state, county or local or non-United States government, governmental, regulatory
or administrative authority, agency, instrumentality or commission or any court,
tribunal, or judicial or arbitral body (a "GOVERNMENTAL AUTHORITY"), except (i)
for applicable requirements, if any, of state takeover laws, the pre-merger
notification requirements of the HSR Act and the requirements of the EC Merger
Regulation and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications would not
adversely affect or materially delay the ability of any of the Sellers to carry
out its obligations under, and to consummate the transactions contemplated by,
this Agreement.
SECTION 3.03 VALID ISSUANCE; OWNERSHIP OF THE SHARES. The Shares
owned by each Seller are validly issued, fully paid and nonassessable. Each
Seller is the record and beneficial owner of, and has good title to, the number
of Shares set forth next to such Seller's name on Schedule A hereto. Such Shares
are all the equity securities of the Company owned, either of record or
beneficially, by such Seller and such Seller does not have any option or other
right to acquire any other securities of the Company. The Shares owned by such
Seller are owned free and clear of all Liens, other than any Liens created by
this Agreement. Except as provided in this Agreement, such Seller has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares owned by such Seller. At the Closing, such Seller
shall deliver, and upon such delivery and payment of the Purchase Price
therefor, Purchaser shall receive good, valid and marketable title to such
Seller's Shares free and clear of any Liens, other than pursuant to this
Agreement.
SECTION 3.04 ABSENCE OF LITIGATION. As of the date hereof, there is
no litigation, suit, claim, action, proceeding or investigation (an "ACTION")
pending or, to the knowledge of the Sellers, threatened against any Seller, or
any property or asset of any Seller, before any Governmental Authority that
seeks to delay or prevent the consummation of the transactions contemplated by
this Agreement.
SECTION 3.05 BROKERS. Except for Morgan Stanley Dean Witter and
Goldman, Sachs & Co., no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this
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Agreement based upon arrangements made by or on behalf of any Seller. The
Sellers are solely responsible for the fees and expenses of Morgan Stanley Dean
Witter and Goldman, Sachs & Co.
SECTION 3.06 SECURITIES MATTERS. Each of the Sellers understands
that the issuance of Purchaser Shares in accordance with this Agreement is
intended to be exempt from the registration requirements of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), pursuant to Section 4(2) thereof.
Each of the Sellers understands and agrees that it may not sell or dispose of
any of the Purchaser Shares in the United States other than pursuant to a
registered offering or in a transaction exempt from the registration
requirements of the Securities Act. The Purchaser Shares are being acquired by
each of the Sellers without a view to public distribution thereof, other than in
accordance with applicable Law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to the Sellers to enter into this Agreement,
Purchaser hereby represents and warrants to the Sellers as follows:
SECTION 4.01 ORGANIZATION AND AUTHORITY OF PURCHASER. Purchaser is
an AKTIENGESELLSCHAFT duly organized and validly existing under the laws of
Switzerland and has all necessary corporate power and authority to enter into
this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby (subject to obtaining the requisite approval of
the Purchaser Shareholder Proposal by the affirmative vote of holders of not
less than two-thirds of the Purchaser Shares voting in person or by proxy at the
Purchaser Shareholders Meeting (the "REQUISITE VOTE")). The execution and
delivery of this Agreement by Purchaser, the performance by Purchaser of its
obligations hereunder and the consummation by Purchaser of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of Purchaser (subject to obtaining the Requisite Vote). This Agreement has
been duly executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by the Sellers) this Agreement constitutes a legal, valid
and binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms.
SECTION 4.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The
execution and delivery of this Agreement by Purchaser do not, and the
performance of this Agreement by Purchaser shall not, (i) conflict with or
violate the articles of association of Purchaser, (ii) assuming satisfaction of
the requirements set forth in 4.02(b) below, conflict with or violate any Law
applicable to Purchaser or by which any property or asset of Purchaser is bound
or affected or (iii) result in any breach of, or constitute a default (or event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien on any property or asset of Purchaser
pursuant to, any note, bond, mortgage, indenture, contract agreement, lease,
license, permit, franchise or other instrument or obligation, except for any
such conflicts, violations, breaches, defaults or other occurrences that would
not adversely affect or materially delay the ability of Purchaser to carry out
its obligations under, and to consummate the transactions contemplated by, this
Agreement.
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(b) The execution and delivery of this Agreement by Purchaser do
not, and the performance of this Agreement by Purchaser shall not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except (i) for applicable requirements, if any,
of state takeover laws, the HSR Act, the EC Merger Regulation, the Bank Holding
Company Act of 1956, as amended, and the regulations thereunder, the banking
laws of the State of New York, and the regulations thereunder, and notification
to the Swiss Federal Banking Commission, (ii) for those required to be made with
self-regulatory organizations and Governmental Authorities regulating brokers,
dealers, investment advisors, investment companies, banks, trust companies and
insurance companies and (iii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not adversely affect or materially delay the ability of Purchaser to carry
out its obligations under, and to consummate the transactions contemplated by,
this Agreement.
SECTION 4.03 PURCHASER SHARES. (a) As of August 29, 2000, Purchaser
had issued and paid up share capital of CH 5,478,244,360, consisting of
273,912,218 Purchaser Shares. In addition to the issued and paid up share
capital, Purchaser has (i) authorized share capital consisting of 11,370,000
unissued Purchaser Shares and (ii) conditional share capital consisting of
18,668,170 unissued Purchaser Shares reserved for any Purchaser option or share
plan or any bonds, warrants or other financing related purposes. In the
aggregate, these 30,038,170 unissued Purchaser Shares represent the maximum
amount of Purchaser Shares that may be issued in the future without further
approval from the shareholders of Purchaser.
(b) When delivered on the Closing Date, the Purchaser Shares to be
so delivered to each Seller pursuant to this Agreement shall be duly authorized,
validly issued, fully paid and non-assessable, and no class of Purchaser's share
capital is or shall be entitled to preemptive rights with respect to such
issuance. On the Closing Date, all such Purchaser Shares shall be duly listed on
the Swiss Exchange. At the Closing, Purchaser shall deliver, and on such
delivery each Seller shall receive, good, valid and marketable title to the
Purchaser Shares delivered to such Seller free and clear of any Liens, other
than pursuant to this Agreement.
SECTION 4.04 NO DISTRIBUTION. Purchaser is not acquiring the
Sellers' Shares with a view to, or for offer or sale in connection with, any
distribution thereof.
SECTION 4.05 FINANCIAL ABILITY. Purchaser has or will have at the
Closing sufficient funds to permit Purchaser to consummate the transactions
contemplated hereby.
SECTION 4.06 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Purchaser.
SECTION 4.07 NO TRANSACTION OR STAMP TAX. Other than the Swiss
federal stamp tax (EMISSIONSABGABE or UMSATZABGABE) which shall be borne by
Purchaser, no transaction, stamp or similar taxes are payable by the Sellers in
connection with the issuance or delivery of the Purchaser Shares to the Sellers
as contemplated under this Agreement.
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SECTION 4.08 BANK CHANGE OF CONTROL STATUTES. (a) Purchaser is not
and does not control, directly or indirectly, an "insured depository
institution" within the meaning of the Change in Bank Control Act, 12 U.S.C.
ss.1817(j) (the "CBCA").
(b) Purchaser does not control, directly or indirectly, any person
which is chartered or licensed under the banking laws of any State of the United
States except for Credit Suisse First Boston and Credit Suisse (each such
person, a "STATE BANKING AFFILIATE").
(c) As of the date hereof, Purchaser has at least one shareholder
that owns more than 5% of the outstanding voting stock of Purchaser.
(d) Purchaser has made an effective election as a financial holding
company. Purchaser knows of no reason why it would not continue to maintain an
effective election as a financial holding company, including, without
limitation, any of the effects of the transactions contemplated by this
Agreement. After giving effect to the transactions contemplated by this
Agreement, Purchaser shall meet all relevant capital requirements of the Swiss
banking authorities.
SECTION 4.09 DERIVATIVE INSTRUMENTS. Except as would not have a
Material Adverse Effect on Purchaser, any swap, forward, future, option or
similar arrangement or agreements, whether entered into for the account of
Purchaser or for the account of a customer of Purchaser or its subsidiaries,
were entered into in the ordinary course of business and, in accordance with
prudent business practice and applicable rules, regulations and policies of any
governmental or regulatory authority or agency and with the counterparties
believed to be financially responsible at the time and are legal, valid and
binding obligations of Purchaser or its subsidiaries enforceable in accordance
with their terms, and are in full force and effect. Except as would not have a
Material Adverse Effect on Purchaser, each of Purchaser and its subsidiaries
have duly performed all of its obligations thereunder to the extent that such
obligations to perform have accrued, and, to the knowledge of Purchaser, there
are no breaches, violations or defaults or allegations or assertions of such by
any party thereunder.
SECTION 4.10 FINANCIAL STATEMENTS. (a) True and complete copies of
(i) the audited consolidated balance sheet of Purchaser for each of the three
fiscal years ended as of December 31, 1999, December 31, 1998 and December 31,
1997, and the related audited consolidated income statement and statement of
source and application of funds of Purchaser, together with all related notes
thereto accompanied by the reports thereon of Purchaser's independent auditors
(collectively referred to herein as the "PURCHASER ANNUAL REPORTS") have been
made available by Purchaser to the Sellers, and (ii) the unaudited consolidated
balance sheet of Purchaser as of June 30, 2000, and the related consolidated
profit and loss account of Purchaser, together with all related notes thereto
(collectively referred to herein as the "PURCHASER INTERIM REPORTS", and
together with the Purchaser Annual Reports, the "PURCHASER REPORTS"), shall be
made available by Purchaser to the Sellers within three Business Days from the
date of this Agreement. The Purchaser Reports (i) were prepared in accordance
with the books of account and other financial records of Purchaser, (ii) present
fairly in all material respects the consolidated financial condition and results
of operations and all statements of source and application of funds of Purchaser
and its subsidiaries as of the respective dates thereof or for the respective
periods covered thereby and (iii) have been prepared based on the Swiss
accounting
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11
rules for banks and the Swiss accounting and reporting recommendations for the
insurance business of Purchaser consistently applied during the periods involved
except as otherwise noted therein.
(b) Except as and to the extent set forth on the consolidated
balance sheet of Purchaser as at December 31, 1999, including the notes thereto,
or except as otherwise contemplated by this Agreement, neither Purchaser nor any
of its subsidiaries has any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except for liabilities and
obligations incurred in the ordinary course of business consistent with past
practice since December 31, 1999 that would not have a Material Adverse Effect
on Purchaser.
SECTION 4.11 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December
31, 1999, there has not been any Material Adverse Effect on Purchaser.
SECTION 4.12 ABSENCE OF LITIGATION. There is no Action pending or,
to the knowledge of Purchaser, threatened against Purchaser or any of its
subsidiaries, or any property or asset of Purchaser or any of its subsidiaries,
before any Governmental Authority that (a) would have a Material Adverse Effect
on Purchaser or (b) as of the date hereof, seeks to materially delay or prevent
the consummation of the transactions contemplated by this Agreement. Neither
Purchaser nor any of its subsidiaries nor any property or asset of Purchaser or
any of its subsidiaries is subject to any continuing order of, consent decree,
settlement agreement or similar written agreement with, or, to the knowledge of
Purchaser, continuing investigation by, any Governmental Authority, or any
order, writ, judgment, injunction, decree, determination or award of any
Governmental Authority that would prevent or materially delay consummation of
the Offer or the Merger or otherwise prevent or materially delay Purchaser or
Purchaser from performing its obligations under this Agreement or would have a
Material Adverse Effect on Purchaser.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 VOTING AGREEMENT. (a) Each Seller hereby irrevocably
constitutes and appoints Purchaser and each of its officers, from and after the
date hereof and until the earlier to occur of the Closing and the termination of
this Agreement, as such Seller's attorney, agent and proxy (such constitution
and appointment, the "IRREVOCABLE PROXY"), with full power of substitution, to
vote such Seller's Shares at any meeting of the stockholders of the Company,
however called, and in any action by consent of the stockholders of the Company,
(i) against any action, proposal, agreement or transaction that would result in
a breach of any covenant, obligation, agreement, representation or warranty of
the Company under the Merger Agreement (whether or not theretofore terminated)
or of the Sellers contained in this Agreement, and (ii) against any action,
agreement, transaction (other than the Merger Agreement or the transactions
contemplated thereby) or proposal (including any Acquisition Proposal) that
could result in any of the conditions to the Company's obligations under the
Merger Agreement (whether or not theretofore terminated) not being fulfilled or
that is intended, or could reasonably be expected, to impede, interfere, delay,
discourage or adversely affect the Merger Agreement (whether or not theretofore
terminated), the Offer, the Merger or this Agreement.
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12
(b) THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED
WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE
VALID AND BINDING ON ANY PERSON TO WHOM A SELLER MAY TRANSFER ANY OF ITS SHARES
IN BREACH OF THIS AGREEMENT. Each Seller hereby revokes all other proxies and
powers of attorney with respect to such Seller's Shares that may have heretofore
been appointed or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by any Seller with respect thereto. The termination of such other
proxies or powers of attorney, and the granting of the Irrevocable Proxy, shall
be binding upon the heirs, personal representatives, successors and assigns of
such Seller.
SECTION 5.02 NO DISPOSITION OR ENCUMBRANCE OF THE SELLER'S SHARES.
(a) Each Seller agrees that, except as contemplated by this Agreement, such
Seller shall not (i) sell, transfer, tender (including, without limitation, into
the Offer), pledge, assign, contribute to the capital of any entity,
hypothecate, give or otherwise dispose of, grant a proxy or power of attorney
with respect to, deposit into any voting trust, enter into any voting agreement,
or create or permit to exist any Liens of any nature whatsoever with respect to,
any of such Seller's Shares (or agree or consent to, or offer to do, any of the
foregoing), (ii) take any action that would make any representation or warranty
of the Sellers herein untrue or incorrect in any material respect or have the
effect of preventing or disabling such Seller from performing such Seller's
obligations hereunder or (iii) directly or indirectly, initiate, solicit or
encourage any person to take actions that could reasonably be expected to lead
to the occurrence of any of the foregoing.
(b) Each Seller shall promptly advise Purchaser of its receipt of
any Acquisition Proposal and any request for information that may reasonably be
expected to lead to or is otherwise related to any Acquisition Proposal, the
identity of the person making such Acquisition Proposal or request for
information, and the terms and conditions of such Acquisition Proposal.
SECTION 5.03 COMPANY BOARD REPRESENTATION. Promptly upon the
Closing, the Sellers shall cause the directors nominated by the Sellers or who
are otherwise affiliated with the Sellers after the Closing to resign from the
Board of Directors of the Company and the boards of directors of the Company's
subsidiaries.
SECTION 5.04 NOTIFICATION OF CERTAIN MATTERS. The Sellers shall give
prompt notice to Purchaser, and Purchaser shall give prompt notice to the
Sellers, of (a) the occurrence, or non-occurrence, of any event the occurrence,
or non-occurrence, of which reasonably could be expected to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect and (b) any failure of any Seller or
Purchaser, as the case may be, to comply with or satisfy any covenant or
agreement to be complied with or satisfied by it hereunder; PROVIDED, however,
that the delivery of any notice pursuant to this Section 5.04 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
SECTION 5.05 FURTHER ACTION; REASONABLE BEST EFFORTS. (a) Upon the
terms and subject to the conditions hereof, each of the parties hereto shall (i)
make promptly its respective filings, and thereafter make any other required
submissions, under the HSR Act and
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13
the EC Merger Regulation with respect to the transactions contemplated by this
Agreement and (ii) use its reasonable best efforts to take, or cause to be
taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, using its reasonable best efforts to obtain all
permits, consents, approvals, authorizations, qualifications and orders of
Governmental Authorities and parties to contracts with the Company and its
subsidiaries as are necessary for the consummation of the transactions
contemplated by this Agreement and, in the case of the Sellers, entering into
any voting trust or similar arrangements that may be required by applicable Laws
to acquire the Purchaser Shares hereunder; PROVIDED that Purchaser will be not
required by this Section 5.05 to take any action that will have a Material
Adverse Effect on the Company or Purchaser, including, without limitation,
entering into any consent decree, hold separate orders or other arrangements
that would have a Material Adverse Effect on the Company or Purchaser. In case,
at any time after the Closing Date, any further action is necessary or desirable
to carry out the purposes of this Agreement, the proper officers and directors
of each party to this Agreement shall use their reasonable best efforts to take
all such action.
(b) Each of the parties hereto agrees to cooperate and use its
reasonable best efforts to vigorously contest and resist any Action, including
administrative or judicial Action, and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order (whether temporary,
preliminary or permanent) that is in effect and that restricts, prevents or
prohibits consummation of the transactions contemplated by this Agreement,
including, without limitation, by vigorously pursuing all available avenues of
administrative and judicial appeal.
(c) Each of the Sellers agrees to use its reasonable best efforts to
cause the Company to comply with its obligations under the Merger Agreement, and
Purchaser agrees to, and to cause Merger Sub to, comply with its obligations
under the Merger Agreement.
SECTION 5.06 PUBLIC ANNOUNCEMENTS. The parties hereto agree that no
public release or announcement concerning the transactions contemplated by this
Agreement or the Merger Agreement shall be issued by any party without the prior
consent (which consent shall not be unreasonably withheld) of Purchaser, in the
case of a release or announcement by a Seller or any of its affiliates (other
than the Company and the Company's subsidiaries), or Financial, in the case of a
release or announcement by, Purchaser or any of its affiliates, except as such
release or announcement may be required by Law or the rules or regulations of
any United States or non-United States securities exchange, in which case the
party required to make the release or announcement shall use its reasonable best
efforts to allow the other party reasonable time to comment on such release or
announcement in advance of such issuance. Notwithstanding the foregoing, each
Seller agrees to permit Purchaser and Merger Sub to publish and disclose in the
offer documents filed with the Securities and Exchange Commission with respect
to the Offer pursuant to Section 2.01(b) of the Merger Agreement and the proxy
statement, if any, to be sent to the Company's stockholders pursuant to Section
7.02 of the Merger Agreement and related filings under the securities laws such
Seller's identity and ownership of such Seller's Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
<PAGE>
14
SECTION 5.07 PURCHASER SHAREHOLDERS MEETING. Purchaser agrees, in
accordance with applicable Law and its articles of association, to duly call,
give notice of, convene and hold a special meeting of its shareholders as
promptly as practicable following the date hereof (the "PURCHASER SHAREHOLDERS
Meeting") for the purpose of approving the authorization of the new Purchaser
Shares to be issued to the Sellers pursuant to this Agreement and the exclusion
of the preemptive rights of all holders of Purchaser share capital in connection
with such issuance (the "PURCHASER SHAREHOLDER PROPOSAL"). The Board of
Directors of Purchaser agrees to recommend to its shareholders the approval of
the Purchaser Shareholder Proposal and make any other disclosure to its
shareholders as may be required under applicable Law.
SECTION 5.08 DISPOSITION OF PURCHASER SHARES. (a) Purchaser shall
use its reasonable best efforts to cause the Purchaser Shares delivered to the
Sellers pursuant to Section 2.05(b) to be approved for listing on the Frankfurt
Stock Exchange prior to the Closing Date, or if such approval for listing is not
obtained prior to the Closing Date, as promptly as practicable thereafter.
(b) Purchaser will take such commercially reasonable actions as may
be reasonably requested by any Seller in connection with the listing and/or sale
by such Seller of all or any portion of the Purchaser Shares owned by such
Seller, including, without limitation, (i) entering into customary agreements
with, and making customary representations, warranties and covenants to, the
underwriters and placement agents designated by such Seller in connection with
such sale; (ii) preparing or assisting in the preparation of such prospectuses,
offering memoranda and other offering materials as may be reasonably requested
by such Seller or such underwriters or placement agents in connection with such
sale; and (iii) using all reasonable efforts to cause senior management of
Purchaser to participate in "road shows" and meetings with prospective
purchasers of the Purchaser Shares; and (iv) paying all reasonable costs and
expenses in connection with the foregoing (other than underwriters' commissions
and selling discounts).
SECTION 5.09 CERTAIN TRANSACTIONS. (a) (i) In the event all the
conditions set forth in Article VI have been satisfied or waived and the Banking
Board of New York State shall not have consented to, approved or otherwise
authorized the change of control of Winthrop Trust Company ("WINTHROP") in
connection with the transactions contemplated by this Agreement (such consent,
approval or authorization, the "BANK BOARD APPROVAL"), Financial agrees to
acquire from the Company as promptly as practicable following satisfaction or
waiver of all such conditions, but in any event prior to the Closing Date, all
the issued and outstanding capital stock of Winthrop for its book value.
Financial further agrees to sell to the Company (or such other entity as
Purchaser shall designate), and transfer good, valid and marketable title to
(free and clear of any Liens), and Purchaser hereby agrees to acquire, or to
cause the Company or any other designee of Purchaser to acquire, all such issued
and outstanding capital stock of Winthrop immediately following receipt of the
Banking Board Approval for the same consideration paid by Financial pursuant to
the immediately preceding sentence.
(ii) Financial further agrees that if it acquires Winthrop pursuant
to Section 5.09(a)(i), until such time as it transfers ownership of Winthrop to
the Company or any other designee of Purchaser, Financial shall cause Winthrop
to conduct its business only in the ordinary course in a manner consistent with
past practice and in consultation with the Company.
<PAGE>
15
Without limiting the generality of the foregoing, Financial shall not permit
Winthrop to take any action described in Section 6.01(a) through (n) of the
Merger Agreement (without giving effect to any exceptions therein).
(b) (i) In the event that DLJ Bank Holdings LLC ("BANK HOLDINGS
LLC") is not liquidated pursuant to Section 7.13 of the Merger Agreement, or
regulatory approval or expressions of non-objection to Purchaser's acquiring
control of Bank Holdings LLC are not received, prior to the satisfaction or
waiver of all the conditions set forth in Article VI, Financial agrees to
acquire from the Company all the membership or other equity interests in Bank
Holdings LLC as promptly as practicable, but in any event prior to the Closing,
for its book value. In connection with the foregoing, Purchaser and Financial
will cooperate with each other to ensure that the United Kingdom bank subsidiary
of Bank Holdings LLC (the "UK BANK") is not required by the applicable
regulatory authorities to be transferred with Bank Holdings LLC. If the UK Bank
is required to be so transferred, Financial agrees to acquire from the Company
all the equity interests in the UK Bank for its book value simultaneously with
its acquisition of Bank Holdings LLC.
(ii) If Bank Holdings LLC is not liquidated following its
acquisition by Financial pursuant to Section 5.09(b)(i), Purchaser hereby agrees
to acquire, or to cause the Company or any other designee of Purchaser, to
acquire, all the membership interests or other equity interests in Bank Holdings
LLC immediately following receipt of the requisite regulatory approvals for such
acquisition for the same consideration paid by Financial pursuant to Section
5.09(b)(i)), and if the UK Bank is also acquired by Financial pursuant to
Section 5.09(b)(i), Purchaser also hereby agrees to acquire, or to cause the
Company or any other designee of Purchaser to acquire, all the equity interests
in the UK Bank immediately following receipt of the requisite regulatory
approvals for such acquisition for the same consideration paid by Financial
pursuant to Section 5.09(b)(i).
(iii) Financial further agrees that if it acquires either Bank
Holdings LLC or the UK Bank pursuant to Section 5.09(b)(i), until such time as
it transfers ownership of such entities to the Company or any other designee of
Purchaser, Financial shall cause each such entity to conduct its business only
in the ordinary course in a manner consistent with past practice and in
consultation with the Company. Without limiting the generality of the foregoing,
Financial shall not permit Bank Holdings LLC or the UK Bank to take any action
described in Section 6.01(a) through (n) of the Merger Agreement (without giving
effect to any exceptions therein).
(c) Each of Financial and Purchaser agrees to deliver, or cause to
be delivered, all documents (including, without limitation, reasonable and
customary purchase and sale agreements) and take, or cause to be taken, all
actions reasonably necessary to effect the transactions contemplated by this
Section 5.09.
SECTION 5.10 POST-CLOSING SHARE PURCHASE. (a) Purchaser agrees to
acquire (or cause to be acquired) from the Sellers (pro rata in accordance with
their ownership of Purchaser Shares on the Closing Date or as otherwise directed
by Financial) on the Business Day immediately following the Closing Date a
number of Purchaser Shares having an aggregate value of $1.2 billion, based on
the average of the closing prices of Purchaser Shares on the Swiss Exchange on
the five consecutive Business Days preceding the Closing Date and on the average
<PAGE>
16
of the noon buying rates in New York for cable transfers in Swiss francs as
certified for customs purposes by the Federal Reserve Bank of New York on the
five consecutive Business Days preceding the Closing Date. On such date, (i) the
Sellers shall deliver to Purchaser or its designee, and upon due payment
therefor, Purchaser or its designee (as the case may be) shall receive, good,
valid and marketable title to such Purchaser Shares, free and clear of any
Liens, and (ii) Purchaser shall deliver (or cause to be delivered) to the
Sellers (pro rata in accordance with their ownership of Purchaser Shares on the
Closing Date or as otherwise directed by Financial) $1.2 billion in immediately
available United States dollars.
(b) Each of the parties hereto agrees to deliver, or cause to be
delivered, all documents (including, without limitation, reasonable and
customary purchase and sale agreements) and take, or cause to be taken, all
actions reasonably necessary to effect the transactions contemplated by this
Section 5.10.
SECTION 5.11 1940 ACT. (a) Purchaser and the Sellers have entered
into this Agreement in reliance upon the benefits and protections provided by
Section 15(f) of the Investment Company Act of 1940, as amended (the "1940
ACT"). Purchaser shall not take any action not contemplated by this Agreement or
the Merger Agreement that would have the effect, directly or indirectly, of
causing the requirements of any of the provisions of Section 15(f) of the 1940
Act not to be met in respect of this Agreement or the Merger Agreement and the
transactions contemplated hereby and thereby, and it shall not fail to take any
action if the failure to take such action would have the effect, directly or
indirectly, of causing the requirements of any of the provisions of Section
15(f) of the 1940 Act not to be met in respect of this Agreement or the Merger
Agreement and the transactions contemplated hereby and thereby.
(b) Purchaser shall use its reasonable best efforts to assure, for
the three year period following the Closing, that the composition of the Board
of Directors or Trustees, as the case may be, of each investment company managed
by the Company or its subsidiaries on the date hereof (the "FUND") is in
compliance at such times with Section 15(f)(1)(A) of the 1940 Act.
(c) For a period of two year after the Closing, there shall not be
imposed on any of the Funds that is registered under the 1940 Act an "unfair
burden" as a result of the transactions contemplated by this Agreement or the
Merger Agreement, or any terms or conditions applicable thereto.
(d) Except as otherwise defined in this Section 5.11, the
capitalized terms and terms in quotations used in this Section 5.11 shall have
the meanings set forth in Sections 15(f), 2(a)(4) or 2(a)(d)(19) of the 1940
Act.
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01 CONDITIONS TO THE CLOSING. The obligations of each
party to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
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17
(a) SHAREHOLDER APPROVAL. The shareholders of Purchaser shall have
approved the Purchaser Shareholder Proposal by the Requisite Vote;
(b) HSR ACT. Any waiting period (and any extension thereof) under
the HSR Act applicable to the purchase of the Sellers' Shares contemplated
hereby shall have expired or been terminated;
(c) EU ANTITRUST. The parties shall have received in respect of the
purchase of the Sellers' Shares contemplated hereby the approval of the
Commission of the European Union under the EC Merger Regulation that such
purchase is compatible with the Common Market; and
(d) NO ORDER; COMPLIANCE WITH LAW. (i) No Governmental Authority in
the United States or Switzerland shall have enacted, issued, promulgated,
enforced or entered any Law (whether temporary, preliminary or permanent) which
is then in effect and has the effect of making the acquisition of shares by
Purchaser or any affiliate of Purchaser illegal or otherwise restricting or
prohibiting consummation of the transactions contemplated by this Agreement or
the Merger Agreement and (ii) consummation of the transactions contemplated by
this Agreement shall not conflict with or violate any provision of United States
Law.
SECTION 6.02 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The
obligations of the Sellers to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser contained in Article IV in this Agreement shall be true
and correct as of the Closing with the same force and effect as if made as of
the Closing, other than such representations and warranties as are made as of
another date, which shall be true and correct as of such date, except, in each
case, where the failure of such representation or warranty to be true and
correct (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein) would not have a Material Adverse
Effect on Purchaser, and the Sellers shall have received a certificate to such
effect signed by a duly authorized officer of Purchaser;
(b) COVENANTS. The covenants and agreements contained in this
Agreement to be complied with by Purchaser on or before the Closing shall have
been complied with in all material respects, and the Sellers shall have received
a certificate to such effect signed by a duly authorized officer of Purchaser;
and
(c) PURCHASER MATERIAL ADVERSE EFFECT. No Purchaser Material Adverse
Effect shall have occurred.
SECTION 6.03 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment, at or prior to the Closing, of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties (i) of the Sellers contained in Article III of this Agreement shall
be true and correct in all material respects as of the Closing with the same
force and effect as if made as of the Closing, other than such representations
and warranties as are made as of another date, which shall be true and
<PAGE>
18
correct in all material respects as of such date, and (ii) of the Company
contained in Article IV of the Merger Agreement shall be true and correct as of
the Closing with the same force and effect as if made as of the Closing, other
than such representations and warranties as are made as of another date, which
shall be true and correct as of such date, except in the case of this clause
(ii) where the failure to be so true and correct would not have a Material
Adverse Effect on the Company (without, in the case of clause (i) and (ii),
giving effect to any limitation as to "materiality" or "Material Adverse Effect"
set forth therein), and Purchaser shall have received a certificate to such
effect signed by a duly authorized officer of each Seller; and
(b) COVENANTS. The covenants and agreements contained in this
Agreement to be complied with by the Sellers on or before the Closing shall have
been complied with in all material respects, and Purchaser shall have received a
certificate to such effect signed by a duly authorized officer of each Seller;
and
(c) COMPANY MATERIAL ADVERSE EFFECT. No Company Material Adverse
Effect shall have occurred.
ARTICLE VII
TERMINATION AND WAIVER
SECTION 7.01 TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written consent of each of Financial and Purchaser
duly authorized by the Boards of Directors of Financial and Purchaser; or
(b) by either Financial or Purchaser if:
(i) the Closing shall not have occurred by March 31, 2001 unless the
Offer has closed on or before such date; PROVIDED, HOWEVER, that the right to
terminate this Agreement under this Section 7.01(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has each
been the cause of, or resulted in, the failure of the Closing to occur on or
before such date; or
(ii) any Governmental Authority in the United States or Switzerland
shall have enacted, issued, promulgated, enforced or entered any injunction,
order, decree or ruling (whether temporary, preliminary or permanent) which has
become final and nonappealable and has the effect of making the transactions
contemplated by this Agreement illegal or otherwise preventing or prohibiting
consummation of the transactions contemplated by this Agreement; or
(c) by either Purchaser or Financial if the Purchaser Shareholder
Proposal shall fail to obtain the Requisite Vote at the Purchaser Shareholders
Meeting; or
(d) by (i) Purchaser if a Company Material Adverse Effect shall have
occurred, or (ii) Financial if a Purchaser Material Adverse Effect shall have
occurred; or
<PAGE>
19
(e) by either Purchaser or Financial (PROVIDED that the terminating
party and, if Financial is the terminating party, the other Sellers are not then
in material breach of any representation, warranty, covenant or other agreement
contained herein) if there shall have been a material breach of any of the
covenants or agreements or any of the representations or warranties set forth in
this Agreement on the part of Purchaser, if Financial is the terminating party,
or the Sellers, if Purchaser is the terminating party, such that the conditions
in Article VI would not be satisfied, which breach is not cured within 15 days
following written notice to the breaching party, or which breach, by its nature
or timing, cannot be cured prior to the Closing.
SECTION 7.02 EFFECT OF TERMINATION. In the event of termination of
this Agreement as provided in Section 7.01, this Agreement shall forthwith
become void and there shall be no liability on the part of either party hereto
except (a) as set forth in Section 8.02 and (b) that nothing herein shall
relieve any party from liability for any breach of this Agreement.
SECTION 7.03 WAIVER. At any time prior to the Closing, any of the
parties hereto may (a) extend the time for the performance of any obligation or
other act of any other party hereto, (b) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any agreement
of any other party or any condition to its own obligations contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Sellers contained in Article III of this
Agreement and the representations and warranties of Purchaser contained in
Sections 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07 and 4.08 shall survive the
Closing. The representations and warranties of Purchaser contained in Article IV
(except as set forth in the preceding sentence) shall terminate upon the
Closing. The liability of the Sellers and Purchaser with respect to their
respective representations and warranties shall not be reduced by any
investigation made at any time by or on behalf of the other parties.
SECTION 8.02 EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 8.03 NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy, or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 8.03):
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20
(a) if to any of the Sellers:
AXA Financial, Inc.
1290 Avenue of the Americas
New York, NY 10104
Telecopy: (212) 707-1920
Attention: Stanley B. Tulin
Vice-Chairman and Chief Financial Officer
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
Telecopy: (212) 909-6836
Attention: Michael W. Blair
Gregory V. Gooding
(b) if to Purchaser:
Credit Suisse Group
Paradeplatz 8
P.O. Box 1
CH-8070 Zurich
Switzerland
Telecopy: (41-1) 210-2120
Attention: David Frick
General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Telecopy: (212) 848-7179
Attention: David W. Heleniak
Clare O'Brien
SECTION 8.04 HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 8.05 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not
<PAGE>
21
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the fullest
extent possible.
SECTION 8.06 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties or any of them, with respect to the subject matter hereof.
SECTION 8.07 ASSIGNMENT. This Agreement shall not be assigned
(whether pursuant to a merger, operation of law or otherwise), except that
Purchaser may assign all or any of its rights and obligations under this
Agreement to any affiliate, PROVIDED that no such assignment shall relieve
Purchaser of its obligations hereunder if such assignee does not perform such
obligations.
SECTION 8.08 PARTIES IN INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 8.09 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State (other than those
provisions set forth herein that are required to be governed by Swiss Law). The
parties hereto hereby (a) submit to the exclusive jurisdiction of any state or
federal court sitting in the Borough of Manhattan of The City of New York solely
in respect of the interpretation and enforcement of the provisions of this
Agreement brought by any party hereto, and (b) irrevocably waive, and agree not
to assert by way. of motion, defense, or otherwise, in any such Action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution, that
the Action is brought in an inconvenient forum, that the venue of the Action is
improper, or that this Agreement may not be enforced in or by any of the
above-named courts.
SECTION 8.10 WAIVER OF JURY TRIAL. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 8.10.
SECTION 8.11 COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
<PAGE>
22
SECTION 8.12 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
CREDIT SUISSE GROUP
By: /s/ Lukas Muhlemann
-----------------------------------
Name: Lukas Muhlemann
Title: Chief Executive Officer
and Chairman of the Board
By: /s/ Joseph T. Mclaughlin
-----------------------------------
Name: Joseph T. McLaughlin
Title: Authorized Signatory
AXA FINANCIAL, INC.
By: /s/ Stanley B. Tulin
-----------------------------------
Name: Stanley B. Tulin
Title: Vice Chairman and Chief
Financial Officer
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Stanley B. Tulin
-----------------------------------
Name: Stanley B. Tulin
Title: Vice Chairman and Chief
Financial Officer
AXA PARTICIPATIONS BELGIUM
By: /s/ Gerard de la Martiniere
-----------------------------------
Name: Gerard de la Martiniere
Title: Authorized Signatory
AXA
By: /s/ Gerard de la Martiniere
-----------------------------------
Name: Gerard de la Martiniere
Title: Group Executive Vice
President Finance, Control
and Structure
<PAGE>
SCHEDULE A
SELLER'S SHARES OF SELLER'S CASH PURCHASER SHARES TO
COMPANY SELLER'S CASH BE RECEIVED BY
NAME COMMON STOCK PURCHASE PRICE SELLER
---- ------------ -------------- ------
AXA 170,000 $4,468,493 48,357
AXA Financial, Inc. 48,646,793 $1,278,693,214 13,837,627
The Equitable Life
Assurance Society
of the United
States 39,961,540 $1,050,399,150 11,367,098
AXA Participations
Belgium 1,666,667 $43,808,763 474,085
----------- ---------- ----------
Total 90,445,000 2,377,369,620 25,727,167
========== ============= ==========
