EXECUTION COPY
COMMERCIAL
PAPER DEALER AGREEMENT
4(2) Program - Foreign Issuer and Guaranteed
Among:
AXA FINANCIAL, INC. ("AXA Financial"), as Issuer,
AXA SA ("AXA"), as Issuer and, with respect to Notes issued by AXA Financial, as
Guarantor (in such capacity, the "Guarantor"), and
CITIGROUP GLOBAL MARKETS INC. as Dealer.
Concerning Notes to be issued pursuant to an Issuing and Paying Agency Agreement
dated as of June 3, 2009 among the Issuers, the Guarantor and JPMorgan Chase
Bank, National Association, as Issuing and Paying Agent
Dated as of
June 3, 2009
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
This agreement (the "Agreement") sets forth the understandings among each of the
Issuers, the Guarantor and the Dealer, each named on the cover page hereof, in
connection with the issuance and sale by each of the Issuers of its short-term
promissory notes (the "Notes") through the Dealer.
AXA, in its capacity as Guarantor, has agreed unconditionally and irrevocably to
guarantee payment in full of the principal of and interest (if any) on all Notes
issued by AXA Financial (the "Guaranteed Notes"), pursuant to a guarantee, dated
the date hereof, in the form of Exhibit D hereto (the "Guarantee").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in this
Agreement or such Addendum, are hereby incorporated into this Agreement and made
fully a part hereof.
1. OFFERS, SALES AND RESALES OF NOTES.
1.1. While (i) neither of the Issuers has or shall have any obligation
to sell the Notes to the Dealer or to permit the Dealer to
arrange any sale of the Notes for the account of the relevant
Issuer, and (ii) the Dealer has and shall have no obligation to
purchase the Notes
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from any Issuer or to arrange any sale of the Notes for the
account of any Issuer, the parties hereto agree that in any case
where the Dealer purchases Notes from an Issuer, or arranges for
the sale of Notes by an Issuer, such Notes will be purchased or
sold by the Dealer in reliance on the representations,
warranties, covenants and agreements of such Issuer, and, in the
case of Guaranteed Notes, the Guarantor, contained herein or made
pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2. So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, none of the
Issuers, nor, in the case of Guaranteed Notes, the Guarantor,
shall, without the consent of the Dealer, offer, solicit or
accept offers to purchase, or sell, any Notes except (a) in
transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by
executing with the Issuers and the Guarantor, one or more
agreements which contain provisions substantially identical to
those contained in Section 1 of this Agreement, of which each of
the Issuers hereby undertakes to provide the Dealer prompt notice
or (b) in transactions with the other dealers listed on the
Addendum hereto, which are executing agreements with each of the
Issuers and the Guarantor which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously
herewith. In no event shall either of the Issuers or, in the case
of Guaranteed Notes, the Guarantor, offer, solicit or accept
offers to purchase, or sell, any Notes directly on its own behalf
in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3. The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such
interest rates, if interest bearing, or will be sold at such
discount from their face amounts, as shall be agreed upon by the
Dealer and the relevant Issuer and, in the case of Guaranteed
Notes, the Guarantor, shall have a maturity not exceeding 397
days from the date of issuance and may have such terms as are
specified in Exhibit C hereto or the Private Placement
Memorandum. The Notes shall not contain any provision for
extension, renewal or automatic "rollover."
1.4. The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying
Agency Agreement, and the Notes shall be either individual
physical certificates or book-entry notes evidenced by one or
more master notes (each, a "Master Note") registered in the name
of The Depository Trust Company ("DTC") or its nominee, in the
form or forms annexed to the Issuing and Paying Agency Agreement.
1.5. If the relevant Issuer and, in the case of Guaranteed Notes, the
Guarantor, and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note
arranged by the Dealer (including, but not limited to, agreement
with respect to the date of issue, purchase price, principal
amount, maturity and interest rate or interest rate index and
margin (in the case of interest-bearing Notes) or discount
thereof (in the case of Notes issued on a discount basis), and
appropriate compensation for the Dealer's services hereunder)
pursuant to this Agreement, the Issuer and, in the case of
Guaranteed Notes, the Guarantor, shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing
and Paying Agency Agreement and payment for such Note shall be
made by the purchaser thereof, either directly or through the
Dealer, to the Issuing and
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Paying Agent, for the account of the Issuer. Except as otherwise
agreed, in the event that the Dealer is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment
for a Note on the date fixed for settlement, the Dealer shall
promptly notify the relevant Issuer and, in the case of
Guaranteed Notes, the Guarantor, and if the Dealer has
theretofore paid such Issuer for the Note, such Issuer will
promptly return such funds to the Dealer against its return of
the Note to such Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry Note.
1.6. The Dealer and each of the Issuers and, in the case of Guaranteed
Notes, the Guarantor, hereby establish and agree to observe the
following procedures in connection with offers, sales and
subsequent resales or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed
by the Dealer to be Qualified Institutional Buyers,
Institutional Accredited Investors and (ii) non-bank
fiduciaries or agents that will be purchasing Notes for
one or more accounts, each of which is reasonably believed
by the Dealer to be an Institutional Accredited Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the
restrictions in the legend described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without
limiting the generality of the foregoing, without the
prior written approval of the Dealer, none of the Issuers
or, in the case of Guaranteed Notes, the Guarantor shall
issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall
be issued in a smaller principal or face amount. If the
purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of
Notes.
(e) Offers and sales of the Notes by an Issuer through the
Dealer acting as agent for such Issuer shall be made in
accordance with Rule 506 under the Securities Act, and
shall be subject to the restrictions described in the
legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear
as part of the Private Placement Memorandum used in
connection with offers and sales of Notes hereunder, as
well as on each individual certificate representing a Note
and each Master Note representing book-entry Notes offered
and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the dealer a
copy of the then-current Private Placement Memorandum
unless such purchaser has previously received a copy of
the Private Placement Memorandum as then in effect. The
Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information
from AXA regarding the relevant Issuer and, in the case of
Guaranteed Notes, the
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Guarantor and the Dealer and shall provide the names,
addresses and telephone numbers of the persons from whom
information regarding the relevant Issuer and, in the case
of Guaranteed Notes, the Guarantor may be obtained.
(g) Each of the Issuers agrees and, in the case of Guaranteed
Notes, the Issuer and the Guarantor, jointly and
severally, agree for the benefit of the Dealer and each of
the holders and prospective purchasers from time to time
of the Notes that, if at any time such Issuer or, in the
case of Guaranteed Notes, the Issuer or the Guarantor,
shall not be subject to Section 13 or 15(d) of the
Exchange Act, such Issuer or, in the case of Guaranteed
Notes, the Issuer and the Guarantor, will furnish, upon
request and at its or their expense, to the Dealer and to
holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule
144A(d).
(h) In the event that any Note of an Issuer offered or to be
offered by the Dealer would be ineligible for resale under
Rule 144A, such Issuer shall immediately notify the Dealer
(by telephone, confirmed in writing) upon becoming aware
of such fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the Private Placement
Memorandum describing the Notes that are ineligible, the
reason for such ineligibility and any other relevant
information relating thereto.
(i) Each of the Issuers and the Guarantor, represents that it
is not currently issuing commercial paper or guarantees in
the United States market in reliance upon the exemption
provided by Section 3(a)(3) of the Securities Act. Each of
the Issuers and the Guarantor, agrees that, if it shall
issue commercial paper or guarantees after the date hereof
in reliance upon such exemption (a) the proceeds from the
sale of the Notes will be segregated from the proceeds of
the sale of any such commercial paper by being placed in a
separate account; (b) the relevant Issuer and, in the case
of Guaranteed Notes, the Guarantor, will institute
appropriate corporate procedures to ensure that the offers
and sales of notes or guarantees issued by such Issuer or
the Guarantor, as the case may be, pursuant to the Section
3(a)(3) exemption are not integrated with offerings and
sales of Notes or the Guarantee hereunder; and (c) the
relevant Issuer and, in the case of Guaranteed Notes, the
Guarantor, will comply with each of the requirements of
Section 3(a)(3) of the Securities Act in selling
commercial paper or other short-term debt securities other
than the Notes in the United States.
1.7. Each of the Issuers and, in the case of Guaranteed Notes, the
Guarantor, hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Each of the Issuers and the Guarantor hereby confirms to the
Dealer that (except as permitted by Section 1.6(i)) within the
preceding six months neither it nor any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof
acting on its behalf has offered or sold any Notes, or any
substantially similar security of such Issuer or the Guarantor
(including, without limitation, medium-term notes issued by
such Issuer or the Guarantor), to, or solicited offers to buy
any such security from, any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof.
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Each of the Issuers and the Guarantor also agrees that (except
as permitted by Section 1.6(i)), as long as the Notes are being
offered for sale by the Dealer and the other dealers referred
to in Section 1.2 hereof as contemplated hereby and until at
least six months after the offer of Notes hereunder has been
terminated, neither such Issuer nor, in the case of Guaranteed
Notes, the Guarantor, nor any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of such Issuer for sale to, or
solicit offers to buy any such security from, any person other
than the Dealer or the other dealers referred to in Section 1.2
hereof, it being understood that such agreement is made with a
view to bringing the offer and sale of the Notes within the
exemption provided by Section 4(2) of the Securities Act and
Rule 506 thereunder and shall survive any termination of this
Agreement. Each of the Issuers and the Guarantor, hereby
represents and warrants that it has not taken or omitted to
take, and will not take or omit to take, any action that would
cause the offering and sale of Notes hereunder to be integrated
with any other offering of securities, whether such offering is
made by an Issuer or the Guarantor or some other party or
parties under circumstances or in a manner that would cause the
offering and sale of the Notes by an Issuer to fail to be
exempt under Section 4(2) of the Securities Act.
(b) In the event that the Dealer purchases Notes as principal and
does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such Notes
either (i) only to offerees it reasonably believes to be
Qualified Institutional Buyers or to Qualified Institutional
Buyers it reasonably believes are acting for other Qualified
Institutional Buyers, in each case in accordance with Rule 144A
or (ii) in a manner which would not cause a violation of
Regulation T and the interpretations thereunder.
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS AND THE GUARANTOR.
Each of the Issuers and, in the case of Guaranteed Notes, the Guarantor,
with respect to sections 2.1 through 2.12, represents and warrants as to
itself, as applicable, and AXA, with respect to sections 2.13 through 2.17,
further represents and warrants, that:
2.1 AXA has been duly incorporated and is validly existing as a societe
anonyme a directoire et conseil et surveillance under French law and
has all the requisite power and authority to execute, deliver and
perform its obligations under the Notes, the Guarantee, this
Agreement and the Issuing and Paying Agency Agreement.
2.2 AXA Financial is a corporation duly organized and validly existing
under the laws of the State of Delaware and has all the requisite
power and authority to execute, deliver and perform its obligations
under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.3 The execution and delivery of this Agreement and the Issuing and
Paying Agency Agreement have been duly authorized by such Issuer and
the Guarantor, and constitute legal, valid and binding obligations of
the Issuer and the Guarantor, enforceable against the Issuer and the
Guarantor, in accordance with their terms, subject to the laws of
bankruptcy and other laws affecting creditors' rights generally from
time to time in effect, and subject, as to enforceability, to general
principles of equity including, without limitation, concepts of
materiality,
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reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.4 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement, will be duly and validly
issued and will constitute legal, valid and binding obligations of
such Issuer enforceable against such Issuer in accordance with their
terms, subject to the laws of bankruptcy, and other laws affecting
creditors' rights generally from time to time in effect, and subject,
as to enforceability, to general principles of equity including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding in equity or at law).
2.5 The Guarantee has been duly authorized, executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligation of
the Guarantor enforceable against the Guarantor in accordance with
its terms subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
2.6 Assuming compliance by the Dealer with the procedures applicable to
it set forth in Section 1 hereof, the offer and sale of the Notes in
the manner contemplated hereby do not require registration of the
Notes under the Securities Act, pursuant to the exemption from
registration contained in Section 4(2) thereof, and no indenture in
respect of the Notes is required to be qualified under the Trust
Indenture Act of 1939, as amended.
2.7 The Notes and the Guarantee will rank at least pari passu with all
other unsecured and unsubordinated indebtedness of such Issuer or the
Guarantor, as the case may be (save in each case for certain
obligations required to be preferred by French law).
2.8 Assuming compliance by the Dealer with the procedures applicable to
it set forth in Section 1 hereof, no consent or action of, or filing
or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to authorize, or is
otherwise required in connection with the execution, delivery or
performance of, this Agreement, the Notes, the Guarantee or the
Issuing and Paying Agency Agreement, except as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Notes.
2.9 Neither the execution and delivery of this Agreement, the Guarantee
and the Issuing and Paying Agency Agreement, nor the issuance of the
Notes in accordance with the Issuing and Paying Agency Agreement, nor
the fulfillment of or compliance with the terms and provisions hereof
or thereof by such Issuer or, in the case of Guaranteed Notes, the
Guarantor, will violate or result in a breach or a default under any
of the terms of the constitutional documents of such Issuer or the
Guarantor, any contract or instrument to which such Issuer or the
Guarantor is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of any
court or government instrumentality, to which such Issuer or the
Guarantor is subject or by which it or its property is bound, which
breach or default might be material in the context of the commercial
paper program contemplated by this Agreement or the issuance of
Notes.
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2.10 Except as disclosed in the Company Information, there is no
litigation or governmental proceeding pending, or to the knowledge of
such Issuer or the Guarantor threatened, against or affecting such
Issuer or the Guarantor or any of its respective subsidiaries, which
is required to be described in the Issuer's or the Guarantor's SEC
filings.
2.11 Neither of such Issuer nor the Guarantor is now, or will be as a
result of the sale of any Notes or the receipt or application of the
proceeds thereof, an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended
(as such terms are used in the Investment Company Act).
2.12 Each (a) issuance of Notes by such Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by such Issuer and, in the case of
Guaranteed Notes, the Guarantor to the Dealer, as of the date
thereof, that, both before and after giving effect to such issuance
and after giving effect to such amendment or supplement, (i) the
representations and warranties given by such Issuer and, in the case
of Guaranteed Notes, the Guarantor set forth in this Section 2 remain
true and correct in all material respects on and as of such date as
if made on and as of such date, (ii) in the case of an issuance of
Notes, the Notes being issued on such date have been duly and validly
issued and constitute legal, valid and binding obligations of such
Issuer, enforceable against such Issuer in accordance with their
terms, subject to the laws of bankruptcy, and other laws affecting
creditors' rights generally from time to time in effect, and subject,
as to enforceability, to general principles of equity including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding in equity or at law) and, in the case of Guaranteed
Notes, are guaranteed pursuant to the Guarantee, (iii) in the case of
an issuance of Notes, since the date of the most recent consolidated
financial statements included in or incorporated in the Private
Placement Memorandum, there has been no change which has had or, to
the best of such Issuer's or, in the case of Guaranteed Notes, the
Guarantor's knowledge is reasonably likely to have, a material
adverse effect on the consolidated financial position or the
consolidated operating results of such Issuer or such Issuer and its
subsidiaries, taken as a whole, or, in the case of guaranteed Notes
of the Guarantor or the Guarantor and its consolidated subsidiaries
taken as a whole or on the ability of such Issuer or, in the case of
Guaranteed Notes, the Guarantor to perform its obligations under the
Notes, this Agreement or the Issuing and Paying Agency Agreement,
which has not been disclosed to the Dealer in writing and (iv)
neither such Issuer nor, in the case of Guaranteed Notes, the
Guarantor is in default of any of its obligations hereunder or under
the Notes, the Guarantee (in the case of Guaranteed Notes) or the
Issuing and Paying Agency Agreement.
2.13 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, provided that the AXA makes no
representation as to the Dealer Information.
2.14 Under the laws of the Republic of France neither AXA nor any of its
revenues, assets or properties has any right of immunity from service
of process or from the jurisdiction of
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competent courts of the Republic of France or the United States or
the State of New York in connection with any suit, action or
proceeding, attachment prior to judgment, attachment in aid of
execution of a judgment or execution of a judgment or from any other
legal process with respect to its obligations under this Agreement,
the Issuing and Paying Agency Agreement, the Notes or the Guarantee.
2.15 The choice of New York law to govern this Agreement, the Issuing and
Paying Agency Agreement, the Guarantee and the Notes is, under the
laws of the Republic of France, a valid, effective and irrevocable
choice of law, and the submission by AXA in Section 7.3 (b) of the
Agreement to the jurisdiction of the courts of the United States
District Court and the State of New York located in the Borough of
Manhattan is valid and binding upon AXA under the laws of the
Republic of France.
2.16 Any final judgment rendered by any court referred to in Section 2.15
in an action to enforce the obligations of AXA under this Agreement,
the Issuing and Paying Agency Agreement, the Guarantee or the Notes
is capable of being enforced in the courts of the Republic of France.
2.17 As a condition to the admissibility in evidence of this Agreement,
the Issuing and Paying Agency Agreement, the Guarantee or the Notes
in the courts of the Republic of France, it is not necessary that
this Agreement, the Issuing and Paying Agency Agreement, the
Guarantee or the Notes be filed or recorded with any court or other
authority. All documentary evidence to be submitted to a court in the
Republic of France must be in, or translated into, the French
language and certified by a duly qualified official translator in the
Republic of France.
3. COVENANTS AND AGREEMENTS OF THE ISSUERS AND THE GUARANTOR.
Each of the Issuers and the Guarantor, covenants and agrees with respect to
itself, as applicable, that:
3.1 Such Issuer and the Guarantor will give the Dealer prompt notice (but
in any event prior to any subsequent issuance of Notes hereunder) of
any amendment to, modification of or waiver with respect to, the
Notes, the Guarantee or the Issuing and Paying Agency Agreement,
including a complete copy of any such amendment, modification or
waiver.
3.2 Such Issuer and the Guarantor, shall, whenever there shall occur any
event making untrue or incorrect to an extent which is material in
the context of the issue and offer of any Notes, any of the
representations and warranties contained in Section 2, promptly,
after becoming aware of the occurrence thereof, notify the Dealer (by
telephone, confirmed in writing).
3.3 Such Issuer and the Guarantor shall from time to time furnish to the
Dealer such information as the Dealer may reasonably request,
including, without limitation, any press releases or other publicly
available information, regarding (i) the operations and financial
condition of such Issuer or the Guarantor (ii) the due authorization
and execution of the Notes and the Guarantee, (iii) such Issuer's
ability to pay the Notes as they mature and (iv) the Guarantor's
obligation to fulfill its obligations under the Guarantee.
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3.4 Such Issuer and, in the case of Guaranteed Notes, the Guarantor, will
take all such action as the Dealer may reasonably request to ensure
that each offer and each sale of the Notes will comply with any
applicable state Blue Sky laws; provided, however, that neither such
Issuer nor, in the case of Guaranteed Notes, the Guarantor, shall be
obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
3.5 Such Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) opinions of (i) U.S. counsel to the Issuers and, in
the case of Guaranteed Notes, the Guarantor, substantially in the
form set forth in Exhibit E-1 hereto, (ii) French counsel to AXA
substantially in the form set forth in Exhibit E-2 hereto (iii) the
General Counsel of AXA substantially in the form set forth in Exhibit
E-3 hereto and (iv) the Deputy General Counsel of AXA Financial
substantially in the form set forth in Exhibit E-4 hereto, (b) a copy
of the executed Issuing and Paying Agency Agreement as then in
effect, (c) an executed copy of the Guarantee and (d) a copy of the
resolutions adopted by the Boards of Directors or other governing
body of each Issuer and the Guarantor, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar
officer of such Issuer and the Guarantor, authorizing execution and
delivery by such Issuer and the Guarantor of this Agreement, the
Issuing and Paying Agency Agreement, the Notes and and, in the case
of Guaranteed Notes, the Guarantee and consummation by such Issuer
and the Guarantor of the transactions contemplated hereby and
thereby, (e) prior to the issuance of any book-entry Notes
represented by a master note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among such
Issuer and, in the case of Guaranteed Notes, the Guarantor, the
Issuing and Paying Agent and DTC and of the executed master note, (f)
prior to the issuance of any Notes in physical form, a copy of such
form (unless attached to this Agreement or the Issuing and Paying
Agency Agreement) and (g) such other certificates, opinions, letters
and documents as the Dealer shall have reasonably requested.
3.6 AXA shall reimburse the Dealer for all of the Dealer's reasonable
out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the
printing and distribution of the Private Placement Memorandum) up to
a total aggregate amount of $7,000, and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's counsel.
4. DISCLOSURE.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of AXA and, to
the extent specifically relating to AXA Financial, AXA Financial.
The Private Placement Memorandum shall contain a statement expressly
offering an opportunity for each prospective purchaser to ask
questions of, and receive answers from, AXA concerning the offering
of Notes and to obtain relevant additional information which AXA
possesses or can acquire without unreasonable effort or expense.
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4.2 AXA agrees to promptly furnish the Dealer the Company Information as
it becomes available.
4.3 (a) Upon the occurrence of any event (a "Section 4.3 Event")
relating to or affecting an Issuer or the Guarantor that would cause
the Private Placement Memorandum then in existence to include an
untrue statement of a material fact or to omit to state a material
fact necessary in order to make the statements contained therein, in
light of the circumstances under which they are made, not
misleading, AXA agrees, except during a Blackout Period (as defined
below), promptly to amend or supplement the Private Placement
Memorandum so that the Private Placement Memorandum, as amended or
supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and AXA shall make such supplement or
amendment available to the Dealer.
(b) At any time, AXA may notify the Dealer ("Section 4.3 Notice")
that all sales and solicitations of Notes shall be suspended because
a Section 4.3 Event has occurred or may occur and AXA has determined
that it would be inappropriate to amend or supplement the Private
Placement Memorandum at that time (each period beginning at the time
of delivery of such notice and ending when AXA provides notice to
the Dealer that solicitations and sales of Notes may resume because
it is no longer inappropriate to so amend or supplement the Private
Placement Memorandum, a "Blackout Period"). AXA agrees that it shall
provide the notice constituting the end of the Blackout Period as
promptly as possible after making the determination that it is no
longer inappropriate to amend or supplement the Private Placement
Memorandum.
(c) The Dealer agrees promptly to notify AXA if it was holding Notes
in inventory at the time of its receipt of the Section 4.3 Notice
("Inventory Notes"). AXA agrees that if the Dealer was holding
Inventory Notes at the time of the Dealer's receipt of the Section
4.3 Notice, AXA shall indemnify the Dealer for losses, if any,
resulting from its inability to sell the Inventory Notes during the
related Blackout Period (it being understood that these losses do
not include any losses that result solely from the occurrence or
public announcement of the Section 4.3 Event).
5. INDEMNIFICATION AND CONTRIBUTION.
5.1 (a) AXA will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other
entity controlling the Dealer, and their respective directors,
officers, employees, partners, incorporators, shareholders,
servants, trustees and agents (hereinafter the "Indemnitees")
against any and all liabilities, penalties, suits, causes of action,
losses, damages, claims, costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel) or
judgments of whatever kind or nature (each a "Claim"), imposed upon,
incurred by or asserted against the Indemnitees arising out of or
based upon (i) any allegation that the Private Placement Memorandum
or the Company Information included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of
any relevant time) or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) the breach by AXA of
any agreement, covenant or representation made in or pursuant to
this Agreement and (b) AXA and AXA Financial, jointly and severally,
will indemnify and hold
10
harmless the Indemnitees against any Claim imposed upon, incurred by
or asserted against the Indemnitees arising out of or based upon the
breach by AXA Financial of any agreement, covenant or representation
made in or pursuant to this Agreement. This indemnification shall not
apply to the extent that the Claim arises out of or is based upon
Dealer Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth in Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this
Section 5 is held to be unavailable or insufficient to hold harmless
the Indemnitees, although applicable in accordance with the terms of
this Section 5, AXA (in the case of Claims arising under Section
5.1(a)) or AXA and AXA Financial, jointly and severally (in the case
of Claims arising under Section 5.1(b)), shall contribute to the
aggregate costs incurred by the Dealer in connection with any Claim
in the proportion of the respective economic interests of AXA, or AXA
and AXA Financial, as the case may be, and the Dealer; provided,
however, that such contribution by AXA or AXA and AXA Financial, as
the case may be, shall be in an amount such that the aggregate costs
incurred by the Dealer do not exceed the aggregate of the commissions
and fees earned by the Dealer hereunder with respect to the issue or
issues of Notes to which such Claim relates. The respective economic
interests shall be calculated by reference to the aggregate proceeds
to applicable Issuer of the Notes issued hereunder and the aggregate
commissions and fees earned by the Dealer hereunder.
6. DEFINITIONS.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i)
AXA's most recent report on Form 20-F, (ii) AXA's reports on Form
6-K filed with the SEC since the most recent report on Form 20-F,
(iii) any other information or disclosure prepared pursuant to
Section 4.3 hereof, (iv) for purposes of section 2.10 and with
respect to AXA Financial only, AXA Financial's most recent report on
Form 10-K and AXA Financial's reports on Form 10-Q filed with the
SEC since its most recent report on From 10-K and (v) any
information prepared or approved in writing by AXA specifically for
dissemination to investors or potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the
Private Placement Memorandum.
6.4 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.5 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.6 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule
501 under the Securities Act and that has such knowledge and
experience in financial and business matters that it is capable of
evaluating and bearing the economic risk of an investment in the
Notes, including, but not limited to, a bank, as defined in Section
3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as
11
defined in Section 3(a)(5)(A) of the Securities Act, whether acting
in its individual or fiduciary capacity.
6.7 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this
Agreement, as such agreement may be amended or supplemented from
time to time.
6.8 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent
under the Issuing and Paying Agency Agreement, or any successor
thereto in accordance with the Issuing and Paying Agency Agreement.
6.9 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities
Act, or (b) a savings and loan association, as defined in Section
3(a)(5)(A) of the Securities Act.
6.10 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials
incorporated by reference therein) provided to purchasers and
prospective purchasers of the Notes, and shall include amendments
and supplements thereto which may be prepared from time to time in
accordance with this Agreement (other than any amendment or
supplement that has been completely superseded by a later amendment
or supplement).
6.11 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.12 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.13 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.14 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
7. GENERAL
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be
effective when received at the address of the respective party set
forth in the Addendum to this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of
laws provisions.
7.3 (a) Each of the Issuers and the Guarantor agrees that any suit,
action or proceeding brought by such Issuer or the Guarantor,
against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be
brought solely in the United States federal courts located in the
Borough of Manhattan or the courts of the State of New York located
in the Borough of Manhattan. EACH OF THE DEALER, THE ISSUERS AND THE
GUARANTOR, WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12
(b) Each of the Issuers and the Guarantor hereby irrevocably accepts
and submits to the non-exclusive jurisdiction of each of the
aforesaid courts in personam, generally and unconditionally, for
itself and in respect of its properties, assets and revenues, with
respect to any suit, action or proceeding in connection with or
arising out of this Agreement, the Guarantee or the Notes or the
offer and sale of the Notes.
(c) AXA hereby irrevocably designates, appoints and empowers AXA
Financial, with offices at 1290 Avenue of the Americas, New York,
New York, 10104, and AXA Financial hereby accepts such appointment,
as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and its properties, assets and
revenues, service for any and all legal process, summons, notices
and documents which may be served in any such action, suit or
proceeding brought in the courts listed in Section 7.3(a) which may
be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts, with respect to any
suit, action or proceeding in connection with or arising out of this
Agreement, the Guarantee or the Notes or the offer and sale of the
Notes. If for any reason such designee, appointee and agent
hereunder shall cease to be available to act as such, the Issuer
agrees to designate a new designee, appointee and agent in The City
of New York on the terms and for the purposes of this Section 7.3
satisfactory to the Dealer. AXA further hereby irrevocably consents
and agrees to the service of any and all legal process, summons,
notices and documents out of any of the aforesaid courts in any such
action, suit or proceeding by serving a copy thereof upon the agent
for service of process referred to in this Section 7.3 (whether or
not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service)
or by mailing copies thereof by registered or certified airmail,
postage prepaid, to it at its address specified in or designated
pursuant to this Agreement. AXA agrees that the failure of any such
designee, appointee and agent to give any notice of such service to
it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based
thereon. Nothing herein shall in any way be deemed to limit the
ability of the holders of any Notes or the Dealer to serve any such
legal process, summons, notices and documents in any other manner
permitted by applicable law or to obtain jurisdiction over the
undersigned or bring actions, suits or proceedings against the
undersigned in such other jurisdictions, and in such other manner,
as may be permitted by applicable law. Each of the Issuers and the
Guarantor hereby irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions, suits or proceedings arising out of
or in connection with this Agreement brought in the courts listed in
Section 7.3(a) and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
7.4 This Agreement may be terminated, at any time, by the Issuers, upon
five business day's prior notice to such effect to the Dealer, or by
the Dealer upon one business day's prior notice to such effect to
the Issuers and, in the case of Guaranteed Notes, the Guarantor. Any
such termination, however, shall not affect the obligations of an
Issuer or the Guarantor under Sections 3.6, 5 and 7.3 hereof or the
respective representations, warranties, agreements, covenants,
rights or responsibilities of the parties made or arising prior to
the termination of this Agreement.
13
7.5 This Agreement is not assignable by any party hereto without the
written consent of the other parties.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns hereunder, and
shall not be deemed to give any legal or equitable right, remedy or
claim to any other person whatsoever; provided, however, that
Sections 7.3(b) and (c) and Section 7.8 are hereby specifically and
exclusively acknowledged to also be for the benefit of the holders
from time to time of the Notes, as third-party beneficiaries.
7.8 (a) Any payments to the Dealer hereunder or to any holder from time
to time of Notes shall be in United States dollars and shall be made
without withholding for or deduction of any taxes or duties imposed
or levied by or on behalf of France or any political subdivision or
any authority thereof or therein having the power to tax. If French
law should require that payments of principal or interest in respect
of the Notes be subject to deduction or withholding in respect of
any taxes or duties whatsoever, AXA will, to the fullest extent then
permitted by law, pay such additional amounts as shall result in
receipt by the Noteholders or, if applicable, by the Dealer, of such
amounts as would have been received by them had no such withholding
or deduction been required, provided that AXA shall not be required
to pay any such additional amount on account of any tax that would
not have been so imposed but for the existence of any present or
former personal or business connection between the person entitled
to such payment and France other than the mere receipt of such
payment or the ownership or holding of Notes. AXA will promptly pay
any stamp duty or other taxes or governmental charges payable in
connection with the execution, delivery, payment or performance of
this Agreement, the Issuing and Paying Agency Agreement, the
Guarantee or the Notes.
(b) AXA agrees to indemnify and hold harmless the Dealer and each
holder from time to time of Notes against any loss incurred by the
Dealer or such holder as a result of any judgment or order being
given or made for any amount due hereunder or under the Notes or, in
the case of Guaranteed Notes, the Guarantee and such judgment or
order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange at
which the Dealer or such holder is able to purchase United States
dollars with the amount of Judgment Currency actually received by
the Dealer or such holder. The foregoing indemnity shall constitute
separate and independent obligations of AXA and shall continue in
full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any reasonable
premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
7.9 Each of the Issuers and the Guarantor acknowledges and agrees that
the Dealer is acting solely in the capacity of an arm's length
contractual counterparty to the Issuers and the Guarantor with
respect to the offering of the Notes contemplated hereby (including
in connection with determining the price and terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of
(except to the extent explicitly set forth herein), either Issuer or
the Guarantor or
14
any other person. The Dealer has not assumed an advisory or fiduciary
responsibility in favor of either Issuer or the Guarantor with
respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether the Dealer has advised or is
currently advising either Issuer or the Guarantor on other matters)
or any other obligation to either Issuer or the Guarantor except the
obligations expressly set forth in this Agreement. Additionally, the
Dealer is not advising either Issuer or the Guarantor, or any other
person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. Each of the Issuers and the Guarantor
shall consult with its own advisors concerning such matters and shall
be responsible for making its own independent investigation and
appraisal of the transactions contemplated hereby, and the Dealer
shall have no responsibility or liability to either Issuer or the
Guarantor with respect thereto. Any review by the Dealer of an
Issuer, the Guarantor, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for
the benefit of the Dealer and shall not be on behalf of either of the
Issuers or the Guarantor.
7.10 This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Issuers or the Guarantor and
the Dealer with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
15
AXA, AS ISSUER AND GUARANTOR CITIGROUP GLOBAL MARKETS INC., AS DEALER
By: /s/ Denis Duverne By: /s/ James M. Hennessy
---------------------------- -----------------------------
Name: Denis Duverne Name: James M. Hennessy
Title: Chief Financial Officer Title: Managing Director
and Member of the
Management Board
AXA FINANCIAL, INC., AS ISSUER
By: /s/ Kevin R. Byrne
-------------------------------------------
Name: Kevin R. Byrne
Title: Executive Vice President and Chief
Investment Officer and Treasurer
ADDENDUM
The following additional clauses shall apply to the Agreement and be deemed a
part thereof.
1. The other dealers referred to in clause (b) of Section 1.2 of the Agreement
are J.P. Morgan Securities Inc. and Banc of America Securities LLC.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
FOR AXA:
Address: 21 avenue Matignon, 75008 Paris, France
Attention: DCFG/Capital Market Solutions
Telephone number: +33 (0) 1-40-75-57-97
Fax number: +33 (0) 1-40-75-58-28
FOR AXA FINANCIAL, INC.
Address: 1290 Avenue of the Americas, 12th Floor,
New York, NY 10104
Attention: Treasury Department
Telephone number: (212) 314-4135
Fax number: (212) 314-1504
FOR THE DEALER:
Address: 390 Greenwich Street, 5th Floor,
New York, NY 10013
Attention: Money Markets Origination
Telephone number: (212) 723 6378
Fax number: (212) 723 8627
EXHIBIT A
FORM OF LEGEND FOR PRIVATE PLACEMENT MEMORANDUM AND NOTES
[NEITHER]* THE NOTES OFFERED HEREBY [NOR THE GUARANTEE THEREOF]* HAVE [NOT]**
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES THEREOF MAY BE MADE ONLY
IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE,
THE PURCHASER WILL BE DEEMED TO REPRESENT THAT (I) IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER [, THE GUARANTOR, THE
GUARANTEE]* AND THE NOTES, (II) IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND (III) IT IS EITHER (A)(1) AN INSTITUTIONAL INVESTOR
THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT
(AN "INSTITUTIONAL ACCREDITED INVESTOR" AND (2)(i) PURCHASING NOTES FOR ITS OWN
ACCOUNT, (ii) A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND
LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF THE
ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR (iii) A FIDUCIARY OR
AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION) PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH ACCOUNTS IS SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR; OR (B) A QUALIFIED INSTITUTIONAL BUYER ("QIB") WITHIN THE
MEANING OF RULE 144A UNDER THE ACT THAT IS ACQUIRING NOTES FOR ITS OWN ACCOUNT
OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH ACCOUNTS IS A QIB; AND THE PURCHASER
ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM
THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY
ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO AGREE
THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE ISSUER [OR, IN RESPECT
OF GUARANTEED NOTES, THE GUARANTORS]* OR TO A PLACEMENT AGENT DESIGNATED BY THE
ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT
AGENTS"), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2)
THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR, OR A QIB, OR
(3) TO A QIB IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B)
IN MINIMUM AMOUNTS OF $250,000.
* Insert in Legend for Guaranteed Notes.
** Insert in Legend for non-Guaranteed Notes.
EXHIBIT B
FURTHER PROVISIONS RELATING TO INDEMNIFICATION
(a) AXA agrees (in the case of Claims arising under Section 5.1(a)) and AXA and
AXA Financial, jointly and severally, agree (in the case of Claims arising
under Section 5.1(b)), to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of external counsel)
reasonably promptly after receipt of reasonably detailed invoices
(excluding any confidential information) from the Dealer for any legal or
other expenses reasonably incurred by the Dealer in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action in respect of which indemnification may be sought under
Section 5 of the Agreement (whether or not it is a party to any such
proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence of a
Claim, such Indemnitee will, if a claim in respect thereof is to be made
against an Issuer or, as the case may be, the Guarantor, notify such Issuer
or, as the case may be, the Issuer and the Guarantor, in writing of the
existence thereof; provided that (i) the failure to so notify the Issuer
or, as the case may be, the Guarantor will not relieve it from any
liability which it may have hereunder unless and except to the extent it
did not otherwise learn of such Claim and such failure results in the
forfeiture by it of substantial rights and defenses, and (ii) the failure
to so notify the Issuer or, as the case may be, the Guarantor will not
relieve it from liability which it may have to an Indemnitee otherwise than
on account of this indemnity agreement. In case any such Claim is made
against any Indemnitee and it notifies the Issuer or, as the case may be,
the Guarantor of the existence thereof, the Issuer or, as the case may be,
the Issuer and the Guarantor, will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the
Indemnitee, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnitee; provided that if the defendants in any
such Claim include both the Indemnitee and either the Issuer or the
Guarantor or both, and the Indemnitee shall have concluded that there may
be legal defenses available to it which are different from or additional to
those available to the Issuer or, as the case may be, the Guarantor, the
Issuer or the Issuer and the Guarantor, as the case may be, shall not have
the right to direct the defense of such Claim on behalf of such Indemnitee,
and the Indemnitee shall have the right to select separate counsel to
assert such legal defenses on behalf of such Indemnitee. Upon receipt of
notice from such Issuer or the Issuer and the Guarantor, as the case may
be, to such Indemnitee of the election of the Issuer or, as the case may
be, the Issuer and the Guarantor, to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer or, as the case may be,
the Issuer and the Guarantor, will not be liable to such Indemnitee for
expenses incurred thereafter by the Indemnitee in connection with the
defense thereof (other than reasonable costs of investigation) unless (i)
the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that neither the Issuer
nor, as the case may be, the Guarantor, shall be liable for the expenses of
more than one separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer
or, as the case may be, the Issuer and the Guarantor, shall not have
employed counsel reasonably satisfactory to the Indemnitee to represent the
Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer or, as the case may be, the Guarantor has authorized in
writing the employment of counsel for the Indemnitee. The indemnity,
reimbursement and contribution obligations of such Issuer or, as the case
may be, the Issuer and the Guarantor, hereunder shall be in addition to any
other liability the Issuer or, as the case may be, the Guarantor may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of
the Issuer, the Guarantor, as the case may be, and any Indemnitee. Each of
such Issuer and, as the case may be, the Guarantor, agrees that without the
Dealer's prior written consent, it will not settle, compromise or consent
to the entry of any judgment in any Claim in respect of which
indemnification may be sought under the indemnification provision of the
Agreement (whether or not the Dealer or any other Indemnitee is an actual
or potential party to such Claim), unless such settlement, compromise or
consent (i) includes an unconditional release of each Indemnitee from all
liability arising out of such Claim and (ii) does not include a statement
as to or an admission of fault, culpability or failure to act, by or on
behalf of any Indemnitee. Neither such Issuer nor, as the case may be, the
Guarantor will be liable for any Claim which may result from any
settlement, compromise or consent to the entry of a judgment of any Claim
effected by the Dealer without its written consent (which consent will not
be unreasonably withheld or delayed), but if settled with the consent of
the Issuer or, as the case may be, the Guarantor, if there is a final
judgment for the plaintiff in any such action, the Issuer or, as the case
may be, the Guarantor agrees to indemnify and hold harmless any Indemnitee
from and against any loss or liability by reason of such settlement or
judgment.
EXHIBIT C
STATEMENT OF TERMS FOR INTEREST - BEARING COMMERCIAL PAPER NOTES OF AXA AND
AXA FINANCIAL
THE PROVISIONS SET FORTH BELOW ARE QUALIFIED TO THE EXTENT APPLICABLE BY THE
TRANSACTION SPECIFIC [PRICING] [PRIVATE PLACEMENT MEMORANDUM] SUPPLEMENT (THE
"SUPPLEMENT") (IF ANY) SENT TO EACH PURCHASER AT THE TIME OF THE TRANSACTION.
1. General. (a) The obligations of the Issuer to which these terms apply
(each a "Note") are represented by one or more Master Notes (each, a
"Master Note") issued in the name of (or of a nominee for) The Depository
Trust Company ("DTC"), which Master Note includes the terms and provisions
for the Issuer's Interest-Bearing Commercial Paper Notes that are set forth
in this Statement of Terms, since this Statement of Terms constitutes an
integral part of the Underlying Records as defined and referred to in the
Master Note.
(b) "Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are
authorized or required by law, executive order or regulation to be closed
in New York City and, with respect to LIBOR Notes (as defined below) is
also a London Business Day. "London Business Day" means a day, other than a
Saturday or Sunday, on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
2. Interest. (a) Each Note will bear interest at a fixed rate (a "Fixed
Rate Note") or at a floating rate (a "Floating Rate Note").
(b) The Supplement sent to each holder of such Note will describe the
following terms: (i) whether such Note is a Fixed Rate Note or a Floating
Rate Note and whether such Note is an Original Issue Discount Note (as
defined below); (ii) the date on which such Note will be issued (the "Issue
Date"); (iii) the Stated Maturity Date (as defined below); (iv) if such
Note is a Fixed Rate Note, the rate per annum at which such Note will bear
interest, if any, and the Interest Payment Dates; (v) if such Note is a
Floating Rate Note, the Base Rate, the Index Maturity, the Interest Reset
Dates, the Interest Payment Dates and the Spread and/or Spread Multiplier,
if any (all as defined below), and any other terms relating to the
particular method of calculating the interest rate for such Note; and (vi)
any other terms applicable specifically to such Note. "Original Issue
Discount Note" means a Note which has a stated redemption price at the
Stated Maturity Date that exceeds its Issue Price by more than a specified
de minimis amount and which the Supplement indicates will be an "Original
Issue Discount Note".
(c) Each Fixed Rate Note will bear interest from its Issue Date at the rate
per annum specified in the Supplement until the principal amount thereof is
paid or made available for payment. Interest on each Fixed Rate Note will
be payable on the dates specified in the Supplement (each an "Interest
Payment Date" for a Fixed Rate Note) and on the Maturity Date (as defined
below). Interest on Fixed Rate Notes will be computed on the basis of a
360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date of a Fixed Rate Note
falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest will be payable on the next
succeeding Business Day, and no additional interest will accrue in respect
of the payment made on that next succeeding Business Day.
(d) The interest rate on each Floating Rate Note for each Interest Reset
Period (as defined below) will be determined by reference to an interest
rate basis (a "Base Rate") plus or minus a number of basis points (one
basis point equals one-hundredth of a percentage point) (the "Spread"), if
any, and/or multiplied by a certain percentage (the "Spread Multiplier"),
if any, until the principal thereof is paid or made available for payment.
The Supplement will designate which of the following Base Rates is
applicable to the related Floating Rate Note: (a) the CD Rate (a "CD Rate
Note"), (b) the Commercial Paper Rate (a "Commercial Paper Rate Note"), (c)
the Federal Funds Rate (a "Federal Funds Rate Note"), (d) LIBOR (a "LIBOR
Note"), (e) the Prime Rate (a "Prime Rate Note"), (f) the Treasury Rate (a
"Treasury Rate Note") or (g) such other Base Rate as may be specified in
such Supplement.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly or semi-annually (the "Interest Reset Period").
The date or dates on which interest will be reset (each an "Interest Reset
Date") will be, unless otherwise specified in the Supplement, in the case
of Floating Rate Notes which reset daily, each Business Day, in the case of
Floating Rate Notes (other than Treasury Rate Notes) that reset weekly, the
Wednesday of each week; in the case of Treasury Rate Notes that reset
weekly, the Tuesday of each week; in the case of Floating Rate Notes that
reset monthly, the third Wednesday of each month; in the case of Floating
Rate Notes that reset quarterly, the third Wednesday of March, June,
September and December; and in the case of Floating Rate Notes that reset
semiannually, the third Wednesday of the two months specified in the
Supplement. If any Interest Reset Date for any Floating Rate Note is not a
Business Day, such Interest Reset Date will be postponed to the next day
that is a Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. Interest on each
Floating Rate Note will be payable monthly, quarterly or semiannually (the
"Interest Payment Period") and on the Maturity Date. Unless otherwise
specified in the Supplement, and except as provided below, the date or
dates on which interest will be payable (each an "Interest Payment Date"
for a Floating Rate Note) will be, in the case of Floating Rate Notes with
a monthly Interest Payment Period, on the third Wednesday of each month; in
the case of Floating Rate Notes with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and December; and in the
case of Floating Rate Notes with a semiannual Interest Payment Period, on
the third Wednesday of the two months specified in the Supplement. In
addition, the Maturity Date will also be an Interest Payment Date.
If any Interest Payment Date for any Floating Rate Note (other than an
Interest Payment Date occurring on the Maturity Date) would otherwise be a
day that is not a Business Day, such Interest Payment Date shall be
postponed to the next day that is a Business Day, except that in the case
of a LIBOR Note, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding
Business Day. If the Maturity Date of a Floating Rate Note falls on a day
that is not a Business Day, the payment of principal and interest will be
made on the next succeeding Business Day, and no interest on such payment
shall accrue for the period from and after such maturity.
Interest payments on each Interest Payment Date for Floating Rate Notes
will include accrued interest from and including the Issue Date or from and
including the last date in respect of which interest has been paid, as the
case may be, to, but excluding, such Interest Payment Date. On the Maturity
Date, the interest payable on a Floating Rate Note will include interest
accrued to, but excluding, the Maturity Date. Accrued interest will be
calculated by multiplying the principal amount of a Floating Rate Note by
an accrued interest factor. This accrued interest factor will be computed
by adding the interest factors calculated for each day in the period for
which accrued interest is being calculated. The interest factor (expressed
as a decimal) for each such day will be computed by dividing the interest
rate applicable to such day by 360, in the cases where the Base Rate is the
CD Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR or Prime Rate, or
by the actual number of days in the year, in the case where the Base Rate
is the Treasury Rate. The interest rate in effect on each day will be (i)
if such day is an Interest Reset Date, the interest rate with respect to
the Interest Determination Date (as defined below) pertaining to such
Interest Reset Date, or (ii) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date pertaining to
the next preceding Interest Reset Date, subject in either case to any
adjustment by a Spread and/or a Spread Multiplier.
The "Interest Determination Date" where the Base Rate is the CD Rate or the
Commercial Paper Rate will be the second Business Day next preceding an
Interest Reset Date. The Interest Determination Date where the Base Rate is
the Federal Funds Rate or the Prime Rate will be the Business Day next
preceding an Interest Reset Date. The Interest Determination Date where the
Base Rate is LIBOR will be the second London Business Day next preceding an
Interest Reset Date. The Interest Determination Date where the Base Rate is
the Treasury Rate will be the day of the week in which such Interest Reset
Date falls when Treasury Bills are normally auctioned. Treasury Bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is held on the following Tuesday or the
preceding Friday. If an auction is so held on the preceding Friday, such
Friday will be the Interest Determination Date pertaining to the Interest
Reset Date occurring in the next succeeding week.
The "Index Maturity" is the period to maturity of the instrument or
obligation from which the applicable Base Rate is calculated.
The "Calculation Date," where applicable, shall be the earlier of (i) the
tenth calendar day following the applicable Interest Determination Date or
(ii) the Business Day preceding the applicable Interest Payment Date or
Maturity Date.
All times referred to herein reflect New York City time, unless otherwise
specified.
The Issuer shall specify in writing to the Issuing and Paying Agent which
party will be the calculation agent (the "Calculation Agent") with respect
to the Floating Rate Notes. The Calculation Agent will provide the interest
rate then in effect and, if determined, the interest rate which will become
effective on the next Interest Reset Date with respect to such Floating
Rate Note to the Issuing and Paying Agent as soon as the interest rate with
respect to such Floating Rate Note has been determined and as soon as
practicable after any change in such interest rate.
All percentages resulting from any calculation on Floating Rate Notes will
be rounded to the nearest one hundred-thousandth of a percentage point,
with five-one millionths of a percentage point rounded upwards. For
example, 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655). All dollar amounts used in or resulting from any calculation on
Floating Rate Notes will be rounded, in the case of U.S. dollars, to the
nearest cent or, in the case of a foreign currency, to the nearest unit
(with one-half cent or unit being rounded upwards).
CD Rate Notes
"CD Rate" means the rate on any Interest Determination Date for negotiable
certificates of deposit having the Index Maturity as published by the Board
of Governors of the Federal Reserve System (the "FRB") in "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication of
the FRB ("H.15(519)") under the heading "CDs (Secondary Market)".
If the above rate is not published in H.15(519) by 3:00 p.m. on the
Calculation Date, the CD Rate will be the rate on such Interest
Determination Date set forth in the daily update of H.15(519), available
through the world wide website of the FRB at
http://www.federalreserve.gov/releases/h15/Update, or any successor site or
publication or other recognized electronic source used for the purpose of
displaying the applicable rate ("H.15 Daily Update") under the caption "CDs
(Secondary Market)".
If such rate is not published in either H.15(519) or H.15 Daily Update by
3:00 p.m. on the Calculation Date, the Calculation Agent will determine the
CD Rate to be the arithmetic mean of the secondary market offered rates as
of 10:00 a.m. on such Interest Determination Date of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in New York City
selected by the Calculation Agent for negotiable U.S. dollar certificates
of deposit of major United States money center banks of the highest credit
standing in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity in the denomination of
$5,000,000.
If the dealers selected by the Calculation Agent are not quoting as set
forth above, the CD Rate will remain the CD Rate then in effect on such
Interest Determination Date.
Commercial Paper Rate Notes
"Commercial Paper Rate" means the Money Market Yield (calculated as
described below) of the rate on any Interest Determination Date for
commercial paper having the Index Maturity, as published in H.15(519) under
the heading "Commercial Paper-Nonfinancial".
If the above rate is not published in H.15(519) by 3:00 p.m. on the
Calculation Date, then the Commercial Paper Rate will be the Money Market
Yield of the rate on such Interest Determination Date for commercial paper
of the Index Maturity as published in H.15 Daily Update under the heading
"Commercial Paper-Nonfinancial".
If by 3:00 p.m. on such Calculation Date such rate is not published in
either H.15(519) or H.15 Daily Update, then the Calculation Agent will
determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.
on such Interest Determination Date of three leading dealers of U.S. dollar
commercial paper in New York City selected by the Calculation Agent for
commercial paper of the Index Maturity placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
statistical rating organization.
If the dealers selected by the Calculation Agent are not quoting as
mentioned above, the Commercial Paper Rate with respect to such Interest
Determination Date will remain the Commercial Paper Rate then in effect on
such Interest Determination Date.
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
D x 360
------------------
Money Market Yield = x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal and "M" refers
to the actual number of days in the interest period for which interest is
being calculated.
Federal Funds Rate Notes
"Federal Funds Rate" means the rate on any Interest Determination Date for
federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" and displayed on Reuters (or any successor service) on page
FEDFUNDS1 (or any other page as may replace the specified page on that
service) ("Reuters Page FEDFUNDS1") under the heading "EFFECT".
If the above rate does not appear on Reuters Page FEDFUNDS1 or is not so
published by 3:00 p.m. on the Calculation Date, the Federal Funds Rate will
be the rate on such Interest Determination Date as published in H.15 Daily
Update under the heading "Federal Funds/(Effective)".
If such rate is not published as described above by 3:00 p.m. on the
Calculation Date, the Calculation Agent will determine the Federal Funds
Rate to be the arithmetic mean of the rates for the last transaction in
overnight U.S. dollar federal funds arranged by each of three leading
brokers of Federal Funds transactions in New York City selected by the
Calculation Agent prior to 9:00 a.m. on such Interest Determination Date.
If the brokers selected by the Calculation Agent are not quoting as
mentioned above, the Federal Funds Rate will remain the Federal Funds Rate
then in effect on such Interest Determination Date.
LIBOR Notes
The London Interbank offered rate ("LIBOR") means, with respect to any
Interest Determination Date, the rate for deposits in U.S. dollars having
the Index Maturity that appears on the Designated LIBOR Page as of 11:00
a.m. London time, on such Interest Determination Date.
If no rate appears, LIBOR will be determined on the basis of the rates at
approximately 11:00 a.m., London time, on such Interest Determination Date
at which deposits in U.S. dollars are offered to prime banks in the London
interbank market by four major banks in such market selected by the
Calculation Agent for a term equal to the Index Maturity and in principal
amount equal to an amount that in the Calculation Agent's judgment is
representative for a single transaction in U.S. dollars in such market at
such time (a "Representative Amount"). The Calculation Agent will request
the principal London office of each of such banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR for such interest period will be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., in New York City, on such
Interest Determination Date by three major banks in New York City, selected
by the Calculation Agent, for loans in U.S. dollars to leading European
banks, for a term equal to the Index Maturity and in a Representative
Amount; provided, however, that if fewer than three banks so selected by
the Calculation Agent are providing such quotations, the then existing
LIBOR rate will remain in effect for such Interest Payment Period.
"Designated LIBOR Page" means Reuters Screen LIBOR01 (or such other screen
as may replace such page on that service or such other service or services
as may be nominated by the British Bankers' Association for the purposes of
displaying London interbank offered rates for U.S. dollar deposits).
Prime Rate Notes
"Prime Rate" means the rate on any Interest Determination Date as published
in H.15(519) under the heading "Bank Prime Loan".
If the above rate is not published in H.15(519) prior to 3:00 p.m. on the
Calculation Date, then the Prime Rate will be the rate on such Interest
Determination Date as published in H.15 Daily Update opposite the caption
"Bank Prime Loan".
If the rate is not published prior to 3:00 p.m. on the Calculation Date in
either H.15(519) or H.15 Daily Update, then the Calculation Agent will
determine the Prime Rate to be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen US
PRIME1 Page (as defined below) as such bank's prime rate or base lending
rate as of 11:00 a.m. on that Interest Determination Date.
If fewer than four such rates referred to above are so published by 3:00
p.m. on the Calculation Date, the Calculation Agent will determine the
Prime Rate to be the arithmetic mean of the prime rates or base lending
rates quoted on the basis of the actual number of days in the year divided
by 360 as of the close of business on such Interest Determination Date by
three major banks in New York City selected by the Calculation Agent.
If the banks selected are not quoting as mentioned above, the Prime Rate
will remain the Prime Rate in effect on such Interest Determination Date.
"Reuters Screen US PRIME1 Page" means the display designated as page "US
PRIME1" on the Reuters Monitor Money Rates Service (or such other page as
may replace the US PRIME1 page on
that service for the purpose of displaying prime rates or base lending
rates of major United States banks).
Treasury Rate Notes
"Treasury Rate" means:
(1) the rate from the auction held on the Interest Determination Date (the
"Auction") of direct obligations of the United States ("Treasury Bills")
having the Index Maturity specified in the Supplement under the caption
"INVEST RATE" on the display on Reuters (or any successor service) on page
USAUCTION10 (or any other page as may replace that page on that service)
("Reuters Page USAUCTION10") or page USAUCTION11 (or any other page as may
replace that page on that service) ("Reuters Page USAUCTION11"), or
(2) if the rate referred to in clause (1) is not so published by 3:00 p.m.
on the related Calculation Date, the Bond Equivalent Yield (as defined
below) of the rate for the applicable Treasury Bills as published in H.15
Daily Update, under the caption "U.S. Government Securities/Treasury
Bills/Auction High", or
(3) if the rate referred to in clause (2) is not so published by 3:00 p.m.
on the related Calculation Date, the Bond Equivalent Yield of the auction
rate of the applicable Treasury Bills as announced by the United States
Department of the Treasury, or
(4) if the rate referred to in clause (3) is not so announced by the United
States Department of the Treasury, or if the Auction is not held, the Bond
Equivalent Yield of the rate on the particular Interest Determination Date
of the applicable Treasury Bills as published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market", or
(5) if the rate referred to in clause (4) not so published by 3:00 p.m. on
the related Calculation Date, the rate on the particular Interest
Determination Date of the applicable Treasury Bills as published in H.15
Daily Update, under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market", or
(6) if the rate referred to in clause (5) is not so published by 3:00 p.m.
on the related Calculation Date, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as the Bond
Equivalent Yield of the arithmetic mean of the secondary market bid rates,
as of approximately 3:30 p.m. on that Interest Determination Date, of three
primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the Supplement, or
(7) if the dealers so selected by the Calculation Agent are not quoting as
mentioned in clause (6), the Treasury Rate in effect on the particular
Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated in
accordance with the following formula:
D x N
---------------
Bond Equivalent Yield = x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the
case may be, and "M" refers to the actual number of days in the applicable
Interest Reset Period.
3. Final Maturity. The Stated Maturity Date for any Note will be the date
so specified in the Supplement, which shall be no later than 397 days
from the date of issuance. On its Stated Maturity Date, or any date
prior to the Stated Maturity Date on which the particular Note becomes
due and payable by the declaration of acceleration, each such date
being referred to as a Maturity Date, the principal amount of each
Note, together with accrued and unpaid interest thereon, will be
immediately due and payable.
4. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" with respect to a Note: (i) default
for 15 days in any payment of principal or interest on such Note
(including on a redemption thereof); (ii) the Issuer or, in the case of
a Guaranteed Note, the Guarantor, applies for, or is subject to, the
appointment of a mandataire ad hoc under French bankruptcy law or makes
any proposal for a general moratorium in relation to its debt or enters
into an amicable procedure (procedure de conciliation) with its
creditors or a judgment is rendered for its judicial liquidation
(liquidation judiciaire) or for a judicial transfer of the whole of the
business (cession totale de l'entreprise) of the Issuer or, in the case
of a Guaranteed Note, the Guarantor, or to the extent permitted by
applicable law, if the Issuer or, in the case of a Guaranteed Note, the
Guarantor, makes any conveyance, assignment or other arrangement for
the benefit of its creditors generally or if the Issuer or, in the case
of a Guaranteed Note, the Guarantor, is subject to any other insolvency
or bankruptcy proceedings, or if the Issuer or, in the case of a
Guaranteed Note, the Guarantor, is wound up or dissolved except in
connection with a merger where the entity resulting from such merger
assumes all the obligations of the Issuer under the Notes; Upon the
occurrence of an Event of Default, the principal of each obligation
evidenced by such Note (together with interest accrued and unpaid
thereon) shall become, without any notice or demand, immediately due
and payable.
5. Obligation Absolute. No provision of the Issuing and Paying Agency
Agreement under which the Notes are issued shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay
the principal of and interest on each Note at the times, place and
rate, and in the coin or currency, herein prescribed.
6. Supplement. Any term contained in the Supplement shall supersede any
conflicting term contained herein.
EXHIBIT D
FORM OF GUARANTEE
GUARANTEE
GUARANTEE, dated as of __________, ____, of AXA SA, a societe anonyme a
directoire et conseil de surveillance organized under the laws of France (the
"Guarantor").
The Guarantor, for value received, hereby agrees as follows for the benefit of
the holders from time to time of the Notes hereinafter described:
1. The Guarantor irrevocably guarantees payment in full, as and when
the same becomes due and payable, of the principal of and
interest, if any, on the promissory notes (the "Notes") issued by
AXA Financial, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Guarantor (the "Issuer"), from time to time
pursuant to the Issuing and Paying Agency Agreement, dated as of
__________, ____, as the same may be amended, supplemented or
modified from time to time, between the Issuer , the Guarantor,
and JPMorgan Chase Bank, National Association (the "Agreement").
2. The Guarantor's obligations under this Guarantee shall be
unconditional, irrespective of the validity or enforceability of
any provision of the Agreement or the Notes.
3. This Guarantee is a guaranty of the due and punctual payment (and
not merely of collection) of the principal of and interest, if
any, on the Notes by the Issuer and shall remain in full force and
effect until all amounts have been validly, finally and
irrevocably paid in full, and shall not be affected in any way by
any circumstance or condition whatsoever, including without
limitation (a) the absence of any action to obtain such amounts
from the Issuer, (b) any variation, extension, waiver, compromise
or release of any or all of the obligations of the Issuer under
the Agreement or the Notes or of any collateral security therefore
or (c) any change in the existence or structure of, or the
bankruptcy or insolvency of, the Issuer or by any other
circumstance (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or
defense of a guarantor or surety. The Guarantor waives all
requirements as to diligence, presentment, demand for payment,
protest and notice of any kind with respect to the Agreement and
the Notes.
4. In the event of a default in payment of principal of or interest
on any Notes, the holders of such Notes, may institute legal
proceedings directly against the Guarantor to enforce this
Guarantee without first proceeding against the Issuer.
5. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment by the
Issuer of the principal of or interest, if any, on the Notes, in
whole or in part, is rescinded or must otherwise be returned by
the holder upon the insolvency, bankruptcy or reorganization of
the Issuer or otherwise, all as though such payment had not been
made.
6. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
7. (a) The Guarantor hereby irrevocably accepts and submits to the
non-exclusive jurisdiction of the United States federal courts
located in the Borough of Manhattan and the courts of the State of
New York located in the Borough of Manhattan.
(b) The Guarantor hereby irrevocably designates, appoints and
empowers AXA Financial, Inc, with offices at 1290 Avenue of the
Americas, New York, New York, 10104, as its designee, appointee
and agent to receive, accept and acknowledge for and on its
behalf, and its properties, assets and revenues, service for any
and all legal process, summons, notices and documents which may be
served in any such action, suit or proceeding brought in the
courts listed in Section 7(a) which may be made on such designee,
appointee and agent in accordance with legal procedures prescribed
for such courts, with respect to any suit, action or proceeding in
connection with or arising out of this Guarantee. If for any
reason such designee, appointee and agent hereunder shall cease to
be available to act as such, the Guarantor agrees to designate a
new designee, appointee and agent in the City of New York on the
terms and for the purposes of this Section 7. The Guarantor
further hereby irrevocably consents and agrees to the service of
any and all legal process, summons, notices and documents out of
any of the aforesaid courts in any such action, suit or proceeding
by serving a copy thereof upon the agent for service of process
referred to in this Section 7 (whether or not the appointment of
such agent shall for any reason prove to be ineffective or such
agent shall accept or acknowledge such service) or by mailing
copies thereof by registered or certified airmail, postage
prepaid, to it at its address specified in or designated pursuant
to this Guarantee. The Guarantor agrees that the failure of any
such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be
deemed to limit the ability of the holders of any Notes to serve
any such legal process, summons, notices and documents in any
other manner permitted by applicable law or to obtain jurisdiction
over the undersigned or bring actions, suits or proceedings
against the undersigned in such other jurisdictions, and in such
other manner, as may be permitted by applicable law. The Guarantor
hereby irrevocably and unconditionally waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in
connection with this Guarantee brought in the courts listed in
Section 7(a) and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
8. Any payments under this Guarantee shall be in United States
dollars and shall be made without withholding for or deduction of
any taxes or duties imposed or levied by or on behalf of France or
any political subdivision or any authority thereof or therein
having the power to tax. If French law should require that
payments under this Guarantee be subject to deduction or
withholding in respect of any taxes or duties whatsoever, the
Guarantor will, to the fullest extent then permitted by law, pay
such additional amounts as shall result in receipt by the persons
entitled to such payment of such amounts as would have been
received by them had no such withholding or deduction been
required, provided that the Guarantor shall not be required to pay
any such additional amount on account of any tax that would not
have been so imposed but for the existence of any present or
former personal or business connection between the person entitled
to such payment and France other than the mere receipt of such
payment or the ownership or holding of Notes.
9. The Guarantor agrees to indemnify each holder from time to time of
Notes against any loss incurred by such holder as a result of any
judgment or order being given or made for any
amount due hereunder or thereunder and such judgment or order
being expressed and paid in a currency (the "Judgment Currency")
other than United States dollars and as a result of any variation
as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange
at which such holder is able to purchase United States dollars
with the amount of Judgment Currency actually received by such
holder. The foregoing indemnity shall constitute a separate and
independent obligation of the Guarantor and shall continue in full
force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any
reasonable premiums and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed
as of the day and year first above written.
AXA SA
By:
---------------------------
Exhibit E-1
FORM OF OPINION OF U.S. COUNSEL TO THE ISSUERS AND, IN THE CASE OF GUARANTEED
NOTES, THE GUARANTOR
EXHIBIT E-2
FORM OF OPINION OF FRENCH COUNSEL TO AXA
EXHIBIT E-3
FORM OF OPINION OF THE GENERAL COUNSEL OF AXA
EXHIBIT E-4
FORM OF OPINION OF THE DEPUTY GENERAL COUNSEL OF AXA FINANCIAL
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