(b) Each of Equitable and Corebridge shall (i) promptly (and in any event, no less than twenty-four (24) hours after a director or senior executive officer of such party becomes aware) notify the other of the
receipt of all comments from the staff of the SEC and of any request by the staff of the SEC for any amendment or supplement to the Registration Statement or the Proxy/Prospectus or for additional information, (ii) promptly (and in any event, no
less than twenty-four (24) hours after a director or senior executive officer of such party becomes aware) provide the other with copies of all correspondence between it or any of its Representatives and the staff of the SEC with respect to the
Registration Statement or Proxy/Prospectus, (iii) use its reasonable best efforts to respond promptly to comments from the staff of the SEC and (iv) following the Registration Statement Clearance Date, as promptly as reasonably practicable request
that the SEC declare the Registration Statement effective promptly. Each of Equitable and Corebridge shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Registration Statement, the issuance of any
stop order relating thereto or the suspension of the qualification of shares of HoldCo Common Stock, any series of Equitable Preferred Stock or Corebridge Preferred Stock for offering or sale in any
jurisdiction, and each of Equitable, Corebridge and HoldCo shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Corebridge shall, and shall cause HoldCo to, use its reasonable
best efforts to take any other action (other than qualifying to do business in any jurisdiction in which it is not so qualified on the date of this Agreement) required to be taken under any applicable securities Laws in connection with the
Transactions, the issuance of shares of HoldCo Common Stock, any sub-series of Series 1 HoldCo Preferred Stock and Series 2 HoldCo Preferred Stock pursuant to this Agreement and the treatment of Equitable Options, Corebridge Options, other
Equitable Equity Awards and other Corebridge Equity Awards pursuant to Section 2.8. Equitable shall furnish all information concerning Equitable and the holders of Equitable Common Stock, Equitable and other Equitable Equity Awards as may
be reasonably requested in connection with any such action. Corebridge shall furnish all information concerning Corebridge and the holders of Corebridge Common Stock, Corebridge and other Corebridge Equity Awards as may be reasonably requested in
connection with any such action.
(c) Each of Equitable and Corebridge agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it or its Subsidiaries for inclusion or
incorporation by reference in (i) the Registration Statement will, at the time the Registration Statement becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any 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, and (ii) the Proxy/Prospectus will, at the date of mailing to the stockholders of Equitable and Corebridge
and at the times of the Equitable Stockholders Meeting and Corebridge Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. Each of Equitable and Corebridge shall cause
the Registration Statement and the Proxy/Prospectus to comply as to
form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. If, at any time prior to the applicable Effective Time, Equitable or Corebridge obtains knowledge of
any information pertaining to it or previously provided by it for inclusion in the Registration Statement or the Proxy/Prospectus that would require any amendment or supplement to the Registration Statement or the Proxy/Prospectus so that any
of such documents would not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, such
Party shall promptly advise the other Party and the Parties shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Registration Statement and the Proxy/Prospectus and, as required by applicable Law, in
disseminating the information contained in such amendment or supplement to the Equitable stockholders and the Corebridge stockholders, as applicable.
(d) Each of Equitable and Corebridge will provide its legal counsel with a reasonable opportunity to review and comment on drafts of
the
Registration Statement and the Proxy/Prospectus, responses to any comments from the staff of the SEC with respect thereto, and other documents related to the Equitable Stockholders Meeting, the Corebridge Stockholders Meeting or the
issuance of the shares of HoldCo Common Stock, sub-series of Series 1 HoldCo Preferred Stock and Series 2 HoldCo Preferred Stock, prior to filing such documents with the applicable Governmental Entity and mailing such documents to the
stockholders of Equitable and Corebridge, as applicable. Each will include in the Registration Statement, the Proxy/Prospectus and such other documents related to the Equitable Stockholders Meeting, the Corebridge Stockholders Meeting or the
issuance of the shares of HoldCo Common Stock, any sub-series of Series 1 HoldCo Preferred Stock and Series 2 HoldCo Preferred Stock with all comments reasonably and promptly proposed by the other Party or its legal counsel and each agrees that
all information relating to Equitable and its Subsidiaries included in the Registration Statement and the Proxy/Prospectus shall be in form and content satisfactory to Equitable, acting reasonably, and all information relating to Corebridge and
its Subsidiaries included in the Registration Statement and the Proxy/Prospectus shall be in form and content satisfactory to Corebridge, acting reasonably. Notwithstanding the foregoing, the provisions of this
Section 7.3(d) shall (i) not apply with respect to information relating to Change of Recommendation and (ii) in respect of documents filed by a Party that are incorporated by reference in the Registration
Statement or Proxy/Prospectus, apply only with respect to the information relating to the other Party or the other Party’s business, financial condition or results of operations.
7.4 Stockholders Meetings.
(a) Corebridge will take, in accordance with applicable Law and its Organizational Documents, all action necessary to convene the Corebridge Stockholders Meeting as promptly as
practicable after the Registration Statement Clearance Date, and in any event (to the extent permitted by applicable Law) within fifty (50) days thereafter to consider and vote upon the adoption of this Agreement and to cause such vote to be
taken, and shall not postpone or adjourn such meeting except to the extent required by Law, in accordance with
Section 7.4(c), or if, as of the time for which the Corebridge Stockholders
Meeting was originally scheduled (as set forth in the Proxy/Prospectus), there are insufficient shares of Corebridge Common Stock represented (either in person or by proxy) and voting to adopt this Agreement or to constitute a quorum necessary to
conduct the business of the Corebridge Stockholders Meeting. Corebridge shall, subject to the right of the Corebridge Board to effect a Change of Recommendation in accordance with
Section 7.2(d)(ii),
use
reasonable best efforts to solicit from the stockholders of Corebridge proxies in favor of the proposal to adopt this Agreement and to secure the Requisite Corebridge Vote (it being understood that the
foregoing shall not require the Corebridge Board to recommend in favor of the adoption of this Agreement, if a Change of Recommendation has been effected in accordance with Section 7.2(d)(ii)).
(b) Equitable will take, in accordance with applicable Law and its Organizational Documents, all action necessary to convene the Equitable
Stockholders Meeting as promptly as practicable after the Registration Statement is declared effective, and in any event (to the extent permitted by applicable Law) within fifty (50) days thereafter to consider and vote upon the adoption of this
Agreement and to cause such vote to be taken, and shall not postpone or adjourn such meeting except to the extent required by Law, in accordance with
Section 7.4(c), or if, as of the time
for which the Equitable Stockholders Meeting was originally scheduled (as set forth in the Proxy/Prospectus), there are insufficient shares of Equitable Common Stock represented (either in person or by proxy) and voting to adopt this Agreement or
to constitute a quorum necessary to conduct the business of the Equitable Stockholders Meeting. Equitable shall, subject to the right of the Equitable Board to effect a Change of Recommendation in accordance with
Section 7.2(d)(ii), use
reasonable best efforts to solicit from the stockholders of Equitable
proxies in favor of the proposal to
adopt this Agreement and to secure the Requisite Equitable
Vote (it being understood that the foregoing shall not require the Equitable
Board to recommend in
favor of the adoption of this Agreement, if a Change of Recommendation has been effected in accordance with Section 7.2(d)(ii)).
(c) Equitable and Corebridge shall cooperate to schedule and convene the Equitable Stockholders Meeting and the Corebridge Stockholders Meeting on
the same date and at the same time. Each of Equitable and Corebridge agrees (i) to provide the other reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing daily
voting reports in the last ten (10) days prior to the applicable stockholder meeting) and
(ii) to give written notice to the other Party one (1) day prior to the Equitable Stockholders Meeting or the Corebridge
Stockholders Meeting, as applicable, and on the day of, but prior to the Equitable Stockholders Meeting or the Corebridge Stockholders Meeting, as applicable, indicating whether as of such date sufficient proxies representing the Requisite
Equitable Vote or the Requisite Corebridge Vote, as applicable, have been obtained. Notwithstanding the foregoing, if, on a date that is two (2) Business Days prior to the date the Equitable Stockholders Meeting or the Corebridge Stockholders
Meeting, as applicable, is scheduled (in either case, the “
Original Date”), (A) Equitable or Corebridge, as applicable, has not received proxies representing the Requisite
Equitable Vote or the Requisite Corebridge Vote, as applicable, whether or not a quorum is present or (B) it is necessary to ensure that any supplement or amendment to the Proxy/Prospectus is required to be delivered, Equitable may, or if
Corebridge so requests, shall, or Corebridge may, or if Equitable so requests, shall, postpone or adjourn, or make one or more successive postponements or adjournments of, the Equitable Stockholders Meeting or the Corebridge Stockholders Meeting,
as applicable, as long as the date of the Equitable Stockholders Meeting or the Corebridge Stockholders Meeting, as applicable, is not postponed or adjourned more than seven (7) Business Days in connection with any one postponement or adjournment
or more than an aggregate of twenty (20) Business Days from the Original Date in reliance on this sentence. In the event that Equitable or Corebridge, as applicable, postpones or adjourns the Equitable Stockholders Meeting or the Corebridge
Stockholders Meeting, as applicable, the other Party may postpone or adjourn its stockholders meeting such
that the Equitable Stockholders Meeting and the Corebridge Stockholders Meeting are scheduled on the
same date.
(d) Without limiting the generality of the foregoing, each of Equitable and Corebridge agrees that its obligations to hold the Equitable Stockholders Meeting and the Corebridge
Stockholders Meeting, as applicable, pursuant to this
Section 7.4 shall not be affected by the making of a Change of Recommendation by the Equitable Board or the Corebridge Board, as
applicable, and its obligations pursuant to this
Section 7.4 shall not be affected by the commencement of or announcement or disclosure of or communication to Equitable or Corebridge, as
applicable, of any Acquisition Proposal (including any Superior Proposal) or the occurrence or disclosure of an Intervening Event as to Equitable or Corebridge, as applicable.
(e) The only matters to be voted upon at the Equitable Stockholders Meeting and the Corebridge Stockholders Meeting are (i) in the case of Equitable, the Requisite Equitable Vote
and routine proposals required in connection with such vote and (ii) in the case of Corebridge, the Requisite Corebridge Vote and routine proposals required in connection with such vote.
7.5 Cooperation; Efforts to Consummate.
(a) On the terms and subject to the conditions set forth in this Agreement (including
Section 7.2), Equitable and
Corebridge shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably
necessary, proper or advisable on its part under this Agreement and applicable Law to cause the conditions to the Closing set forth in
Article VIII to be satisfied and consummate and make effective the Transactions, in each case, as soon
as reasonably practicable, including preparing and filing as promptly as reasonably practicable and advisable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as reasonably practicable all
consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party or any Governmental Entity in order to consummate the Transactions.
(b) Without limiting the general applicability of
Section 7.5(a), each of Equitable and Corebridge shall, in
consultation and cooperation with the other and as promptly as reasonably practicable, file (i) in no event later than forty five (45) days following the date of this Agreement, with the United States Federal Trade Commission and the Antitrust
Division of the United States Department of Justice the notification and report form, if any, required under the HSR Act with respect to the Transactions, (ii) in no event later than twenty (20) days following the date of this Agreement, with
applicable Insurance Regulators, each Insurance Approval that is a “Form A” exemption request or equivalent exemption request, (iii) in no event later than forty five (45) days following the date of this Agreement, with applicable Insurance
Regulators, the Insurance Approvals (other than (x) any “Form A” exemption request or equivalent exemption request or (y) to the extent required, biographical affidavits, fingerprint cards and background checks, business plans and financial
projections, which shall follow as promptly as reasonably practicable thereafter), and (iv) all other authorizations, consents, orders, approvals, filings and declarations and all expirations of waiting periods listed in
Exhibit G of this
Agreement (each of the foregoing clauses (i) through (iv), collectively, the “
Requisite Regulatory Approvals”);
provided that, neither
Equitable nor Corebridge shall submit a “Form A” exemption request or equivalent exemption request to an Insurance Regulator that has requested to receive a “Form A” Acquisition of Control Statement in connection with the Transactions;
provided,
further, that, in the event a “Form A” exemption request or equivalent exemption request is filed and not approved, each of Corebridge and Equitable shall, in consultation and cooperation with the other and as promptly as reasonably
practicable, file in no event later than twenty (20) days following receipt of notice of such non-approval (and in any case, no later than sixty five (65) days following the date of this Agreement), such “Form A” Acquisition of Control Statement
in connection with the Transactions. All such filings shall comply in all material respects with the requirements of applicable Law.
(c) Equitable and Corebridge shall jointly develop and consult with one another on and consider in good faith the views of one another in connection with, all of the information
relating to Equitable or Corebridge, as applicable, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the Transactions
(including the Registration Statement and the Proxy/Prospectus). Neither Equitable nor Corebridge shall permit any of its Representatives to participate in any substantive meeting (whether live or virtual) with any Governmental Entity in respect
of any filings, investigation or other inquiry relating to the Transactions unless it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend and
participate in such meeting. Subject to applicable Law, each of Equitable and Corebridge and any of their respective Subsidiaries shall not agree
to any actions, restrictions or conditions with respect to
obtaining any consents, registrations, approvals, permits, expirations of waiting periods or authorizations in connection with the Transactions, and neither Party shall directly or indirectly extend any waiting period under the HSR Act or enter
into any agreement with a Governmental Entity related to this Agreement or the Transactions, in each case, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). In
exercising the foregoing rights, each of Equitable and Corebridge shall act reasonably and as promptly as reasonably practicable.
(d) Without limiting the generality of the undertakings pursuant to this
Section 7.5, but on the terms and subject to
the conditions set forth in this Agreement, including
Section 7.5(e), each of Equitable and Corebridge agree to use reasonable best efforts to take or cause to be taken the following
actions:
(i) subject to applicable Law, the prompt provision to each and every federal, state, local or foreign court or Governmental Entity with
jurisdiction over enforcement of any applicable Antitrust Law (each, a “
Governmental Antitrust Entity”) of non-privileged information and documents
relating to Equitable or Corebridge, as applicable, and any of their respective Subsidiaries requested by any Governmental Antitrust Entity or that are necessary, proper or advisable to permit consummation of the Transactions; and
(ii) all reasonably necessary, proper or advisable steps to (A) avoid the entry of, and (B) resist, vacate, modify, reverse, suspend, prevent,
eliminate or remove any actual, anticipated or threatened temporary, preliminary or permanent injunction or other order, decree, decision, determination or judgment entered or issued, or that becomes reasonably foreseeable to be entered or
issued, in any Proceeding or inquiry of any kind, in the case of
each of the foregoing clauses (A) and
(B), that would reasonably be expected to delay, restrain, prevent, enjoin or
otherwise prohibit or make unlawful the consummation of the Transactions, including, except as Equitable and Corebridge may otherwise agree, the proffer of its willingness and agreement by Equitable or Corebridge, as applicable, to (1) sell,
lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, assets, operations, rights, product lines, Licenses, businesses or interests
therein of Equitable or Corebridge or either of their respective Subsidiaries (and the entry into agreements with, and submission to orders of, the relevant Governmental Antitrust Entity giving effect thereto) or (2) make any capital commitment
or capital guarantee or keep well or similar capital maintenance undertaking with respect to an Insurance Subsidiary (each such action in clause (1) or clause (2), a “
Regulatory
Remedy”) if such Regulatory Remedy should be reasonably necessary, proper or advisable so as to permit the consummation of the Transactions.
(e) Notwithstanding anything in this
Section 7.5 to the contrary, neither this
Section 7.5 nor the “reasonable best efforts” standard herein shall require, or be construed to require, Equitable or Corebridge or any of their respective Subsidiaries or other Affiliates to (i) waive any of the conditions
set forth in
Article VIII as they apply to such Party, (ii) commence any litigation against any Governmental Antitrust Entity or Insurance Regulator, (iii) take, effect or agree to any
Regulatory Remedy unless such Regulatory Remedy is conditioned upon the occurrence of the Closing or is effective on or after the Closing or (iv) take, effect or agree to any Regulatory Remedy that individually or in the aggregate with any other
Regulatory Remedy that would, after giving effect to the Mergers (and after giving effect to any reasonably expected proceeds from effecting any Regulatory Remedy), result in, or reasonably be expected to result in, an Effect that, individually
or in the aggregate with any other Effect, have a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of HoldCo and its Subsidiaries, taken as a whole (
provided that for purposes of
determining the foregoing, the business, assets, condition (financial or otherwise) or results of operations of HoldCo and its Subsidiaries, taken as a whole, shall be deemed to be of the same scale as those of Corebridge and its Subsidiaries,
taken as a whole).
(f) For the avoidance of doubt, Equitable and Corebridge shall cooperate with each other and work in good faith in formulating any Regulatory Remedy.
7.6 Status; Notifications. Subject to applicable Law and as otherwise
required by any Governmental Entity, each of Equitable and Corebridge shall keep the other apprised of the status of matters relating to completion of the Transactions, including promptly furnishing the other with copies of notices or other
communications received by either Equitable or Corebridge, or any of its Subsidiaries, from any third party and/or any Governmental Entity with respect to such Transactions. Each of Equitable and Corebridge shall give prompt notice to the other
of any Effect that, individually or in the aggregate with any other Effect, has had, or would reasonably be expected to have, a Material Adverse Effect on such Party, or of any failure of any condition to the other Party’s obligations to effect
the Mergers to be satisfied;
provided that the failure to comply with this sentence of this
Section 7.6 shall not constitute the failure of any condition set forth in
Section 8.2(b) or
Section 8.3(b) to be satisfied unless the underlying breach would independently result in the failure of a condition set forth in
Section
8.2(b) or
Section 8.3(b) to be satisfied;
provided,
further, that the delivery of any notice pursuant to this sentence
of this
Section 7.6 shall not limit or otherwise affect the remedies available under this Agreement to the other Party.
7.7 Financing and Indebtedness.
(a) Subject in all respects to the following provisions of this
Section 7.7, during the period from the date of this Agreement to the Corebridge Effective Time:
(i) the Parties hereto shall cooperate in good faith to mutually determine and implement any necessary, appropriate or desirable arrangements, in
anticipation of the consummation of the Transactions, regarding (A) each Party’s indentures or other documents governing or relating to Indebtedness of the Parties and (B) any incremental Indebtedness in connection with the Transactions (each, a
“
Debt Financing”);
(ii) in furtherance of the foregoing, at any Party’s request, each of the other Parties shall, and shall cause each of
its Subsidiaries and their respective Representatives to, (A) reasonably cooperate with the first Party with respect to the arrangement of an amendment, waiver, supplement, modification, refinancing or replacement, in form and substance
reasonably satisfactory to each Party, to any or all of the revolving credit facilities, letter of credit facilities or similar bank facilities set forth on
Exhibit H (the “
Specified Debt Agreements”) to (I) waive (or have the same
effect as a waiver) any “Change of Control” (as defined in each Specified Debt Agreement) that will occur at the Closing, (II) otherwise permit consummation of the Transactions and (III) further modify the Specified Debt Agreements as the Parties
may reasonably agree (each, a “
Specified Debt Amendment”), and (B) provide all reasonable assistance and cooperation in connection with each Specified Debt Amendment and each Specified Debt Agreement (including delivering or causing a
Subsidiary to deliver any notices, agreements, documents or instruments necessary, proper or advisable to comply with the terms thereof and taking such other actions as are necessary, proper or advisable thereunder in respect of the
Transactions); and
(iii) in the event that any Specified Debt Agreement is not expected to survive the Closing, the relevant Party shall use reasonable best efforts to
deliver (or cause to be delivered) to the other Parties on or prior to the Closing Date a fully executed copy of a customary payoff letter (each, a “
Payoff Letter”) with respect to the obligations under such Specified Debt Agreement which,
as of the date that is ten (10) Business Days prior to the anticipated Closing Date, is not anticipated to survive the Closing.
(b) Notwithstanding anything in this
Section 7.7 to the contrary, in no event shall any Party be required in connection with its obligations under this
Section 7.7
to (i) amend or agree to amend any Specified Debt Agreement, which amendment is not conditioned on the Closing, (ii) incur any liability in connection therewith prior to the Corebridge Effective Time unless contingent upon the occurrence of the
Closing or indemnified by one or more of the other Parties to such Party’s reasonable satisfaction, (iii) take any actions that would unreasonably interfere with or unreasonably disrupt the normal operations and management of such Party and its
Subsidiaries, (iv) take any actions that such Party reasonably believes could (A) violate its or its Subsidiaries’ Organizational Documents, (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of such Party or its Subsidiaries or to a loss of any benefit to which such Party or its Subsidiaries is entitled under any provision of, any Contract (so long as such Contract
was not entered into in contemplation of avoiding such obligations), or (D) result in the creation or imposition of any Encumbrance on any asset of such Party or its Subsidiaries, (v) waive or amend any terms of this Agreement, (vi) take any
action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in
Article VIII to fail to be satisfied or
otherwise cause any breach of this Agreement, (vii) provide access to or disclose information that such Party determines would jeopardize any attorney-client privilege of such Party or any of its Subsidiaries;
provided that such Party and
any other applicable Subsidiary shall use its reasonable best efforts to permit such disclosure in a manner that would not result in the loss or waiver of any such attorney-client privilege, (viii) fund any repayment, redemption, cash
collateralization or provide any “backstop” letters of credit prior to the Closing or (ix) result in any of such Party’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this
Section
7.7.
(c) Each Party acknowledges and agrees that notwithstanding anything in this Agreement to the contrary, the obligations to perform its agreements hereunder, including to
consummate the Closing subject to the terms and conditions hereof, are not conditioned on obtaining any Debt Financing or any Specified Debt Amendments. Each Party shall be deemed to be in compliance with this
Section 7.7 for purposes of
Section 8.2(b) and
Section 8.3(b), as applicable, so long as such Party is not in Willful Breach of its obligations under this
Section 7.7.
7.8 Information; Access and Reports.
(a) Subject to applicable Law and the other provisions of this
Section 7.8, each of Equitable and Corebridge shall (and
shall cause its Subsidiaries to), upon written request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or
advisable in connection with the Proxy/Prospectus, the Registration Statement or any other statement, filing, notice or application made by or on behalf of Equitable, Corebridge or any of their respective Subsidiaries to any third party or any
Governmental Entity in connection with the Transactions, and shall (and shall cause its Subsidiaries to), upon giving of reasonable notice by the other Party, afford the other Party’s officers and other authorized Representatives reasonable
access, during normal business hours following reasonable advance notice throughout the period prior to the Closing, to its officers, Employees, agents, Contracts, books and records (including the work papers of such Party’s independent
accountants upon receipt of any required consents from such accountants), as well as properties, offices and other facilities, and, during such period, each shall (and shall cause its Subsidiaries to) furnish promptly to the other all information
concerning its business, properties and personnel as may reasonably be requested, in each case for the purpose of consummating the Transaction.
(b) The foregoing provisions of this
Section 7.8 shall not require and shall not be construed to require either
Equitable or Corebridge to permit any access to any of its officers, Employees, agents, Contracts, books or records, or its properties, offices or other facilities, or to permit any inspection, review, invasive or subsurface environmental
sampling or testing of environmental media, audit, or to disclose or otherwise make available any information that in the reasonable judgment of Equitable or Corebridge, as applicable, would (i) result in the disclosure of any trade secrets of
any third parties, competitively sensitive information, information concerning the valuation of Equitable, Corebridge or any of their respective Subsidiaries or violate the terms of any confidentiality provisions in any agreement with a third
party entered into prior to the date of this Agreement, (ii) result in a violation of applicable Law, including any fiduciary duty, (iii) waive the protection of any attorney‑client privilege or (iv) result in the disclosure of any personal
information that would expose the Party to the risk of liability. In the event that Equitable or Corebridge, as applicable, objects to any request submitted pursuant to and in accordance with this
Section 7.8 and withholds information on the basis of the foregoing clauses
(i) through
(iv), Equitable or Corebridge, as applicable, shall inform the other Party as to the
general nature of what is being withheld and Equitable and Corebridge shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments,
including through the use of reasonable best efforts to (A) obtain the required consent or waiver of any third party required to provide such information and (B) implement appropriate and mutually agreeable measures to permit the disclosure of
such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, redaction or entry into a customary joint defense agreement with respect to any information to be so provided, if
the Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Each of Equitable and Corebridge, as it deems advisable and necessary, may reasonably
designate competitively sensitive material provided to the other as “Outside Counsel Only Material” or with similar restrictions. Such materials and the information contained therein shall be given only to the outside legal counsel of the
recipient, or otherwise as the restriction indicates, and be subject to any additional confidentiality or joint defense agreement between the Parties. All requests for information made pursuant to this
Section 7.8 shall be directed to the executive officer or other Person designated by Equitable or Corebridge, as applicable. All information exchanged or made available shall be governed by the terms of the Confidentiality
Agreement.
(c) To the extent that any of the information or material furnished pursuant to this
Section 7.8 or otherwise in
accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, including those concerning pending or threatened Proceedings, the Parties
understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any
way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client
privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.
(d) No exchange of information or investigation by Equitable or its Representatives shall affect or be deemed to affect, modify or waive the representations and
warranties of Corebridge set forth in this Agreement. No investigation by Corebridge or its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of Equitable set
forth in this Agreement.
7.9 Stock Exchange Listing and Delisting. Each of Equitable and
Corebridge shall use its reasonable best efforts to cause the shares of HoldCo Common Stock, any sub-series of Series 1 HoldCo Preferred Stock and Series 2 HoldCo Preferred Stock to be issued in the Mergers to be approved for listing on the NYSE,
subject to official notice of issuance, prior to the Closing. Prior to the Closing, Equitable shall cooperate with Corebridge and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things,
reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the NYSE to enable the delisting by the Equitable Surviving Corporation of the shares of Equitable Common Stock and
any series of Equitable Preferred Stock from the NYSE and the deregistration of the shares of Equitable Common Stock and
any series of Equitable Preferred Stock under the Exchange Act
as promptly as practicable after the Closing. Prior to the Closing, Corebridge shall cooperate with Equitable and use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary,
proper or advisable on its part under applicable Laws and rules and policies of the NYSE to enable the delisting by the Corebridge Surviving Corporation of the shares of Corebridge Common Stock and Corebridge Preferred Stock from the NYSE and the
deregistration of the shares of Corebridge Common Stock and Corebridge Preferred Stock under the Exchange Act as promptly as practicable after the Closing.
7.10 Publicity. The initial press release with respect to the Mergers
and the other Transactions shall be a single press release issued jointly by Equitable and Corebridge and thereafter each of Equitable and Corebridge shall consult with the other, and provide reasonable opportunity for review and give due
consideration to reasonable comment by the other, prior to issuing any press releases or otherwise making planned public statements with respect to the Transactions and shall not issue any such press release or make any such public statement
without the prior consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except (i) as may be required by applicable Law or by obligations pursuant to any listing agreement with or rules of the NYSE,
(ii) with respect to any Change of Recommendation made in accordance with this Agreement or Equitable’s or Corebridge’s response thereto or any action taken by Equitable or the Equitable Board or Corebridge or the Corebridge Board, as applicable,
pursuant to and in accordance with
Section 7.2, (iii) in connection with any dispute between the Parties regarding this Agreement or the Transaction or (iv) to the extent the content of
any such disclosure, announcement or statement is consistent with any previous disclosure, announcement or statement made in accordance with this Agreement. Each of Equitable and Corebridge may make any public statements in response to questions
by the press, analysts, investors or those attending industry conferences or analyst or investor conference calls, so long as such statements are consistent with previous statements made jointly by Equitable and Corebridge.
(a) The Parties agree that (i) the Employees of Equitable and its Subsidiaries at
the Equitable Effective Time who continue to remain employed with
Equitable or its Subsidiaries (the “
Equitable Continuing Employees”) and
(ii) the Employees of Corebridge and its
Subsidiaries at the Corebridge Effective Time who continue to remain employed with Corebridge or its Subsidiaries (the “
Corebridge Continuing Employees”,
together with Equitable Continuing Employees, “
Continuing Employees”) shall, during the period commencing at the applicable Effective Time and ending on the 12-month
anniversary of the Closing Date, be provided with (i) a base salary or base wage rate, as applicable, that is no less favorable than the base salary or base wage rate, as applicable, provided to such Continuing Employee immediately prior to the
applicable Effective Time, (ii) target annual cash bonus and long-term incentive opportunities that are no less favorable than the target annual cash bonus and long-term incentive opportunities provided to such Continuing Employee immediately
prior to the applicable Effective Time, (iii) severance payments and benefits that are no less favorable than the severance payments and benefits applicable to such Continuing Employee immediately prior to the applicable Effective Time and (iv)
other compensation and benefits (excluding for this purpose, defined benefit pension, post-employment welfare benefits, equity-based compensation and change of control, retention or other one-time awards) that are substantially comparable in the
aggregate to the compensation and benefits provided to such Continuing Employee immediately prior to the applicable Effective Time;
provided that the requirements of this sentence shall not apply to Continuing Employees who are covered by
a collective bargaining agreement
. For the avoidance of doubt, Equitable and Corebridge acknowledge and agree that the consummation of the Transactions will result in a change in control of Equitable and
Corebridge (or any other words or terms of similar import) for purposes of all Equitable Benefit Plans and Corebridge Benefit Plans.
(b) With respect to any Benefit Plan in which any Continuing Employee first becomes eligible to participate on or after the applicable Effective Time, each Party shall use
reasonable best efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any of its group health plans to be waived with respect to the other Party’s Continuing Employees and their eligible dependents,
(ii) give the other Party’s Continuing Employees credit for the plan year in which the applicable Effective Time occurs (or the plan year in which the Continuing Employee first becomes eligible to participate in the applicable Benefit Plan, if
later) towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred during the plan year but prior to the applicable Effective Time (or eligibility date, as applicable), for which payment has been made and (iii)
give the other Party’s Continuing Employees service credit for such Continuing Employee’s employment with the other Party for purposes of vesting, benefit accrual and eligibility to participate under each applicable Benefit Plan, as if such
service had been performed with such Party, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits (unless otherwise required under applicable Law) or to the extent it
would result in a duplication of benefits.
(c) From the date hereof through the Closing Date, neither Party nor its Subsidiaries shall
make any material (i) written communications to its own
Designated Executives or (ii) broad-based written communications to its own employees, in each case, pertaining to compensation or benefit matters that are affected by the Transactions without first providing the other Party with a copy of the
intended communication and a reasonable period of time to review and comment on such communication, with any reasonable comments to be considered in good faith.
(d) Nothing contained in this Agreement is intended to (i) be treated as an amendment of any particular Equitable Benefit Plan or Corebridge Benefit Plan, (ii) prevent Equitable, Corebridge, the Surviving
Corporations or any of their Affiliates from amending or terminating any of their respective Benefit Plans in accordance with their terms, (iii) prevent Equitable, Corebridge, the Surviving Corporations or any of their Affiliates, after the
applicable Effective Time, from terminating the employment of any Equitable Continuing Employee or Corebridge Continuing Employee or (iv) create any third-party beneficiary rights in any Employee of Equitable, Corebridge or any of their
Subsidiaries, any beneficiary or dependent thereof, or any collective bargaining representative thereof, in connection with or arising out of this Agreement and the Transactions, including with respect to the compensation, terms and conditions of
employment and/or benefits that may be provided to any Corebridge Continuing Employee or Equitable Continuing Employee by Equitable, Corebridge, the Surviving Corporations or any of their Affiliates or under any Benefit Plan which Equitable,
Corebridge, the Surviving Corporations or any of their Affiliates may maintain.
(a) Equitable and Corebridge shall, and shall cause their respective Subsidiaries to, use their reasonable best efforts to cause the Mergers to qualify for the Intended Tax
Treatment, and Equitable and Corebridge shall not, and shall cause their respective Subsidiaries to not, take any action (for the avoidance of doubt, other than those actions expressly required by this Agreement) that would be reasonably likely
to prevent or impede the Mergers from qualifying for the Intended Tax Treatment. The Parties intend to report, and intend to cause their respective Subsidiaries to report, the Mergers for U.S. federal income tax purposes consistent with the
Intended Tax Treatment;
provided that none of Equitable, Corebridge or any Subsidiary of thereof shall have any liability or obligation to any holder of Equitable Stock or Corebridge Stock, including former holders of such stock and
holders of any interest in HoldCo, should the Mergers fail to qualify for the Intended Tax Treatment.
(b) Each of Equitable and Corebridge shall, upon written request by the other, use reasonable best efforts and reasonably cooperate with one another in connection with (i) the
issuance of the Equitable Tax Opinion (as defined in
Section 8.2(d)) and the Corebridge Tax Opinion (as defined in
Section 8.3(d)) and (ii) the issuance to Equitable or Corebridge of any other opinion of external counsel relating
to the Intended Tax Treatment (including if the SEC requires an opinion regarding the Intended Tax Treatment to be prepared and submitted in connection with the declaration of effectiveness of the Proxy/Prospectus), such opinion to be prepared by
Paul, Weiss, Rifkind, Wharton & Garrison LLP, Skadden, Arps, Slate, Meagher & Flom LLP or such other counsel as each Party may reasonably select (each, a “
Tax Counsel”). In
connection with the foregoing, each of Equitable and Corebridge shall deliver to Tax Counsel, upon written request therefor, a certificate (dated as of the necessary date and signed by an officer of Equitable or Corebridge, as applicable), in
form and substance consistent with the applicable certificate set forth in
Section 7.12(b) of the Equitable Disclosure Letter (in the case of Equitable) and
Section 7.12(b) of Corebridge Disclosure Letter (in the case of
Corebridge). Each of Equitable and Corebridge shall use its reasonable best efforts not to, and not permit any Subsidiary to, take or cause to be taken any action, other than an action expressly required by this Agreement, that would cause to be
untrue (or fail to take or cause not to be taken any action which inaction would cause to be untrue) any of the representations and covenants made to counsel in the certificates set forth in
Section 7.12(b) of the Equitable Disclosure
Letter (in the case of Equitable) and
Section 7.12(b) of Corebridge Disclosure Letter (in the case of Corebridge).
7.13 Expenses. Except as otherwise provided
in
Section 9.5(b) or
Section 9.5(c), whether or not the Mergers are consummated, all costs and expenses incurred in connection
with the preparation, negotiation, execution and performance of this Agreement and the Transactions, including all fees and expenses of its Representatives, shall be paid by the Party incurring such expense, except that expenses incurred in
connection with any filing fees in connection with the HSR Act, any other Antitrust Law or other Requisite Regulatory Approval, the Registration Statement, the printing and mailing of the Proxy/Prospectus and the Exchange Agent shall be shared
equally by Equitable and Corebridge.
7.14 Indemnification; Directors’ and Officers’
Insurance.
(a) From and after the Effective Time, HoldCo and the Surviving Corporations shall, jointly and severally, indemnify and hold harmless to the fullest
extent permitted under applicable Law, each present and former (determined as of the Effective Time) director and officer of Equitable or Corebridge or any of their respective Subsidiaries or any Person who prior to the Closing served at the
request of Equitable or Corebridge, as applicable, or any of their respective Subsidiaries, as a director or officer of another Person in
which Equitable or Corebridge or any of its Subsidiaries has an equity
investment, in each case, when acting in such capacity (the “Indemnified Parties”), against any costs or expenses
(including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with, arising out of or otherwise related to any Proceeding, in connection with, arising out of or otherwise related to
matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including in connection with (i) the Transactions and (ii) actions to enforce this provision or any other
indemnification or advancement right of any Indemnified Party. HoldCo and the Surviving Corporations shall advance expenses to each Indemnified Party as incurred to the fullest extent permitted under applicable Law; provided that any
Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification.
(b) Prior to the Closing, each of Equitable and Corebridge shall, effective as of the Closing, obtain and fully pay the premium for “tail” insurance
policies for the extension of its insurance policies covering directors’ and officers’ liability, errors and omissions liability, cyber liability and employment practices liability (“
Tail
Insurance”), in each case, for claims reporting or discovery period of six (6) years from and after the Closing (such period, the “
Tail Period”) with terms, conditions,
retentions and limits of liability that are at least as favorable to the insureds thereunder as such Party’s insurance policies in effect as of immediately prior to the Closing, with respect to claims arising out of acts, omissions and other
matters existing or occurring at or prior to the Closing (including in connection with this Agreement or the Transactions)
.
(c) During the Tail Period, all rights to indemnification and exculpation from liabilities for acts, omissions or other matters occurring at or prior to the Closing and rights to
advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the Organizational Documents of Equitable or Corebridge and their respective Subsidiaries, as applicable, and its Subsidiaries or any
indemnification agreement between such Indemnified Party and Equitable or Corebridge, as applicable, or any of their respective Subsidiaries, as applicable, in each case, as in effect on the date of this Agreement, shall survive the Transactions
unchanged and shall not be amended, restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party, except to the extent required by applicable Law.
(d) If HoldCo or either Surviving Corporation or any of their respective successors or assigns (i) shall consolidate with or merge into any other Person and shall not be the
continuing or surviving Person of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and
assigns of HoldCo or such Surviving Corporation, as the case may be, shall assume all of their respective obligations set forth in this
Section 7.14.
(e) The rights of the Indemnified Parties under this
Section 7.14 are in addition to any rights such Indemnified Parties may have under the Organizational Documents of
Equitable or Corebridge any of their respective Subsidiaries, as applicable, or under any applicable Contracts of Equitable or Corebridge, applicable, or Laws.
(f) This
Section 7.14 is intended to be for the benefit of, and from and after the Effective Time shall be enforceable by, each of the Indemnified Parties, who shall be
third-party beneficiaries of this
Section 7.14.
7.15 Takeover Statutes. If any Takeover Statute is or may become
applicable to the Transactions, each of the Parties hereto and its respective board of directors shall grant such approvals and take such actions as are necessary and legally permissible so that the Transactions may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize the effects of such statute or regulation on the Transactions.
7.16 Dividends. Each of Equitable and Corebridge shall coordinate with
each other the declaration, setting of record dates and payment dates of dividends on shares in respect of Equitable Common Stock, Corebridge Common Stock,
series of Equitable Preferred Stock or Corebridge
Preferred Stock so that holders of shares of Equitable Common Stock, Corebridge Common Stock,
series of Equitable Preferred Stock or Corebridge Preferred Stock do not receive, in any calendar
quarter, two dividends, or fail to receive one dividend, with respect to their shares of
Equitable Common Stock, Corebridge Common Stock,
series of Equitable
Preferred Stock or Corebridge Preferred Stock (as applicable), on the one hand, and
any shares of HoldCo Common Stock, series of Series 1 HoldCo Preferred Stock
or Series 2 HoldCo Preferred Stock
(as applicable) any such holder receives in exchange therefor in the Mergers, on the other hand; provided that (a) the declaration and payment of any
dividends on shares of Equitable Common Stock or series of Equitable Preferred Stock shall be subject to applicable Law and the approval of the Equitable Board and (b) the declaration and payment of any dividends on shares of Corebridge Common
Stock or Corebridge Preferred Stock shall be subject to applicable Law and the approval of the Corebridge Board.
7.17 Section 16 Matters. HoldCo, Equitable and Corebridge, and the
HoldCo Board, the Equitable Board and the Corebridge Board (or duly formed committees thereof consisting of non-employee directors (as such term is defined for the purposes of Rule 16b‑3 promulgated under the Exchange Act)), shall, prior to the
applicable Effective Time, take all such actions as may be necessary or appropriate to cause the Transactions and any other dispositions of equity securities of Equitable or Corebridge (including derivative securities) or acquisitions of equity
securities of HoldCo (including derivative securities) in connection with the Transactions by any individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Equitable or Corebridge or will become
subject to such reporting requirements with respect to HoldCo, to be exempt under Rule 16b‑3 promulgated under the Exchange Act, to the extent permitted by applicable Laws.
7.18 Stockholder Litigation. Each of Equitable and Corebridge shall
promptly advise the other Party of any litigation commenced after the date hereof against such Party or any of its directors (in their capacity as such) by any stockholders of such Party (on their own behalf or on behalf of such Party) relating
to this Agreement or the Transactions, and shall keep the other Party reasonably informed regarding any such litigation. Each of Equitable and Corebridge shall give the other Party the opportunity to participate in the defense or settlement of
any such stockholder litigation, and no such settlement shall be agreed to without the other Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). For purposes of this paragraph, “participate”
means that the non-litigating party will be kept apprised of proposed strategy and other significant decisions with respect to the litigation by the litigating party (to the extent the attorney-client privilege between the litigating party and
its counsel is not undermined or otherwise affected), and the non-litigating party may offer comments or suggestions with respect to the litigation but will not be afforded any decision making power or other authority over the litigation except
for the settlement consent set forth above.
7.19
Investment Advisory Agreement Consents.
(a)
Clients Other than Funds. Each Party shall use reasonable best efforts to obtain, in accordance with applicable Law and the applicable Investment Advisory Agreement,
as promptly as reasonably practicable after the date of this Agreement, the consent of each of such Party’s Clients (other than a Fund) for which consent to the assignment or deemed assignment of such Client’s Investment Advisory Agreement with
such Party or any of such Party’s Subsidiaries is required by applicable Law or by such Client’s Investment Advisory Agreement as a result of the Transactions (such consents, the “
Non-Fund Client Consents”). In furtherance thereof, except
in the case of an Affirmative Consent Client, as promptly as reasonably practicable after the date of this Agreement and in no event less than forty five (45) days prior to the Closing Date, such Party shall, and shall cause its Subsidiaries to,
as applicable, send a written notice (the “
Negative Consent Notice”), in accordance with applicable Law and the applicable Investment Advisory Agreement, which
shall be in form and substance reasonably satisfactory to the other Party, to such Clients informing each such Client: (i) of the Transactions; (ii) of the intention to complete the Transactions, which will result in an assignment or deemed
assignment of such Investment Advisory Agreement; (iii) of the intention of such Party or its applicable Subsidiary to continue to provide the advisory services pursuant to the existing Investment Advisory Agreement with such Client after the
Closing if such Client does not terminate such agreement prior to the Closing; and (iv) that the consent of such Client will be deemed to have been granted if such Client does not terminate its Investment Advisory Agreement, within forty five
(45) days after the sending of the Negative Consent Notice (or such longer period as may be required under the Investment Advisory Agreement). If the applicable Investment Advisory Agreement or applicable Law requires the written consent of the
Client to the assignment or deemed assignment of such Client’s Investment Advisory Agreement with such Party or any of its Subsidiaries, then such Party shall, and shall cause its Subsidiaries to, as applicable, as promptly as reasonably
practicable after the date of this Agreement, send a written notice, in accordance with applicable Law, and the applicable Investment Advisory Agreement, which shall be in form and substance reasonably satisfactory to the other Party, informing
such Client (an “
Affirmative Consent Client”) of the Transactions and requesting written consent to the assignment or deemed assignment of such Client’s
Investment Advisory Agreement.
(b)
Private Funds. Each Party shall use reasonable best efforts to obtain with respect to each of such Party’s Private Funds, in accordance
with applicable Law and the applicable Fund Documents, as promptly as reasonably practicable after the date of this Agreement, the consent of such Private Fund (or some percentage of the Private Fund’s board of directors, advisory committee,
investment committee or investors therein, as applicable) for which consent to the assignment or deemed assignment of such Private Fund’s Investment Advisory Agreement with such Party or any of its Subsidiaries is required by applicable Law or by
such Private Fund’s Fund Documents as a result of the Transactions.
(i) Each Party shall, and shall cause their respective Investment Adviser Subsidiaries to, use their respective reasonable best efforts to, in accordance with applicable Law,
(A) as promptly as practicable after the date of this Agreement obtain the requisite approval of each of the Public Fund Boards of such Party’s Public Funds (“
Public
Fund Board Approval”) of the Public Fund Board Approval Items and the Sub-Advised Fund Board Approval Items, and (B) request that such Party’s Public Funds obtain, as promptly as practicable following such approval of the Public Fund
Boards, the requisite approval of the shareholders of each Public Fund (“
Public Fund Shareholder Approval”) of the Public Fund Shareholder
Approval Items and of each Sub-Advised Fund of the Sub-Advised Fund Shareholder Approval Items (except if not required under manager-of-managers exemptive orders granted under the Investment Company Act with respect to any Sub-Advised Funds).
(ii) As promptly as practicable following the Public Fund Board Approval as described in
Section 7.19(c)(i), each Party (or one of such Party’s Subsidiaries) shall (in
coordination with the applicable Public Fund and under the general direction of the applicable Public Fund Board) jointly cooperate to (A) prepare and file all proxy materials necessary to comply in all material respects with applicable Law for
the Public Fund shareholder meeting to approve the Public Fund Shareholder Approval Items as contemplated by
Section 7.19(c)(i), (B) use reasonable best efforts to promptly clear all SEC comments and (C) use reasonable best efforts to
ensure that such Public Fund Board (it being understood for all purposes of this Agreement that neither Party controls any Public Fund Board) submits, as promptly as practicable following the mailing of the proxy materials, to the shareholders of
such Public Fund for a vote at a shareholders meeting the proposal to approve the Public Fund Shareholder Approval Items. Each Party shall have an opportunity to review all drafts of the proxy materials (and any SEC comments thereto) on a timely
basis and the right to review in advance of submission to the SEC the proxy materials (and any amendment or supplement thereto) to be furnished to the shareholders of any Public Fund and to (I) approve information or data that is provided by or
on behalf of such Party or its Subsidiaries specifically for inclusion in such proxy materials, and (II) provide reasonable comments on such proxy materials, which the other Party (in coordination with the applicable Public Fund and under the
general direction of the applicable Public Fund Board) shall consider in good faith for inclusion therein.
(iii) As soon as possible following the date of this Agreement, each Party shall use their reasonable best efforts to cause each of such Party’s Public Funds then engaged in a
public offering of its shares to (A) file supplements or amendments to its prospectus forming a part of its registration statement then currently in use, which supplements or amendments shall disclose the Transactions to the extent required by
applicable Law, and (B) make any other filing necessary under any applicable Law to satisfy in all material respects disclosure requirements in connection with the public distribution of the shares of that Public Fund. The other Party shall have
the right to provide reasonable comments on such materials to the same extent as provided in
Section 7.19(c)(ii).
(iv) Each Party agrees that the information in the proxy materials to be furnished to the shareholders of any Public Fund (other than information that is or will be provided by or
on behalf of any third party specifically for inclusion in such proxy materials) will not contain, as of the date of such proxy materials, any untrue statement of a material fact, or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading;
provided that in the case of a Public Fund that is not sponsored by a Sub-Advised Fund, the foregoing agreement of such Party shall apply only
to information provided by it or its Subsidiaries in writing specifically for inclusion in such proxy materials.
(v) In addition to the agreements described in this
Section 7.19(c) and notwithstanding anything to the contrary, concurrently with seeking the Public Fund Board
Approvals, each Party shall each seek an Interim Public Fund IAA Approval with respect to each of its Public Funds, including each of its Sub-Advised Funds. The Parties shall cooperate and use their reasonable best efforts to obtain an Interim
Public Fund IAA Approval in respect of each Public Fund, including each Sub-Advised Fund. In no event shall seeking or obtaining an Interim Public Fund IAA Approval in respect of a Public Fund relieve the Parties of their obligations under
Section
7.19(c)(i)-(iv) with respect to such Public Fund.
(vi) Each Party shall, and shall cause their respective Investment Adviser Subsidiaries to, use their respective reasonable best efforts to cause the Investment Advisory Agreement
of each Public Fund as of Closing (or as agreed by such Party or any of its Subsidiaries to be in effect upon or after the Closing) to be on terms and conditions substantially similar as the terms and conditions under such Investment Advisory
Agreement in effect as of the date hereof.
(d) In connection with obtaining the Client consents and other actions required by this
Section 7.19, at all
times prior to the applicable Effective Time, each Party shall take reasonable steps to keep the other Party promptly informed of the status of obtaining such Client consents. In no event shall any Party or any of its Subsidiaries be required or
authorized (except with the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed) to offer or grant any material accommodation or material alteration of terms (financial or otherwise)
in respect of any Client (it being acknowledged that any accommodation or alteration of terms in respect of a Client that leads to a reduction in revenue on an annualized basis of less than 10% relative to the revenue on an annualized basis prior
to such accommodation or alteration shall be deemed not to be a material accommodation or material alteration of terms) for the purpose of obtaining the Client consents contemplated by this
Section 7.19.
(e) In connection with obtaining the consents required under this
Section 7.19, each Party shall have the right to review in advance of distribution any written notices
or other written materials to be distributed by the other Party or its respective Subsidiaries to Clients (including as not expressly addressed by this
Section 7.19) and shall have the right to (i) approve information or data that is
provided by or on behalf of such Party or its Subsidiaries specifically for inclusion in such written notices or other written materials, and (ii) provide any comments, which comments shall be considered in good faith by the other Party;
provided
that the distribution of written materials substantially the same as written materials previously reviewed by a Party shall not require further review by such Party for any subsequent distribution.
(f) Each Party hereto shall (i) reasonably cooperate with and assist each other Party hereto and their respective Subsidiaries in connection with
obtaining the approvals and consents sought pursuant to this
Section 7.19, (ii) promptly provide to the other applicable Parties in writing all information concerning such Party and its Subsidiaries as is reasonably required or otherwise
reasonably requested in order to solicit each Public Fund Board and otherwise seek to obtain the approvals and consents to be sought pursuant to this
Section 7.19 (including all information as is customarily included in such
solicitations, or requests for approvals and consents, prepared in connection with transactions similar to the Transaction), and (iii) make available to the other applicable Parties copies of all such executed Client consents upon written request
(other than where obtained by sending a “negative” consent notice).
(g) Prior to the Closing, without the prior written consent of the other Parties, each Party and its Subsidiaries and Representatives shall not contact any Client of the other
Party or any of its Subsidiaries or, in the case of a Client that is a Fund, any Person which such Party and its Subsidiaries and Representatives know is an officer, director, managing member or general partner of such Fund (or any Fund Investor)
or any advisory committee or similar body (or any member thereof) with respect to such Fund in connection with the Transactions;
provided that, notwithstanding the foregoing, nothing in this Agreement shall prohibit or limit a Party or
its Subsidiaries from contacting any of the other Party’s Clients or any officer, director, managing member or general partner of a Fund (or Fund Investor) of the other Party or any advisory committee or similar body (or any member thereof) with
respect to a Fund of the other Party in the ordinary course of business unrelated to the Transactions.
7.20 Section 15(f) of the Investment Company Act.
(a) The Parties acknowledge that Equitable and Corebridge have entered into this Agreement in reliance upon the benefits and protections provided by Section 15(f) of the
Investment Company Act. In furtherance (and not limitation) of the foregoing, HoldCo shall, and shall cause its Subsidiaries to, use reasonable best efforts after the Effective Time to conduct its business to enable the following to be true
regarding Section 15(f) of the Investment Company Act in relation to any Public Fund for which any Investment Adviser Subsidiary of any Party or HoldCo or any of its Subsidiaries provides investment advisory or sub-advisory services: (i) for a
period of not less than three years after the Effective Time (and provided the seventy five percent (75%) standard for disinterested directors is in effect at the Closing), no more than twenty five (25%) of the members of the board of directors
or trustees of any Public Fund shall be “interested persons” (as defined in the Investment Company Act) of HoldCo or any of its Subsidiaries or any other investment adviser for such Public Fund and (ii) for a period of not less than two years
after the Effective Time, neither HoldCo nor any of its Subsidiaries shall impose an “unfair burden” (within the meaning of the Investment Company Act, including any interpretations or no-action letters of the SEC) on any such Public Fund as a
result of the Transactions or any express or implied terms, conditions or understandings applicable thereto.
(b) For a period of three years after the Closing Date, HoldCo shall not engage, and shall cause its Subsidiaries not to engage, in any transaction that would constitute an
“assignment” (as that term is defined under applicable provisions of the Investment Company Act and interpreted by the SEC) to a third party of any Investment Advisory Agreement between HoldCo or any of its Subsidiaries and any Public Fund,
without first using reasonable best efforts to obtain from the counterparty to such transaction a covenant in all material respects comparable to that contained in this
Section 7.20;
provided that if HoldCo or any of its
Subsidiaries obtains an exemptive order from the SEC as contemplated by Section 15(f)(3) of the Investment Company Act, then this covenant shall be deemed to be modified to the extent necessary to permit HoldCo and its Subsidiaries to act in a
manner consistent with such SEC exemptive order.
8.1 Conditions to Each Party’s Obligation to Effect the Mergers. The
respective obligation of each Party to effect the Mergers is subject to the satisfaction at the Closing or waiver at or prior to the Closing of each of the following conditions:
(a)
Equitable Stockholder Approval. The Requisite Equitable Vote shall have been obtained in accordance with applicable Law and the Organizational Documents of Equitable.
(b)
Corebridge Stockholder Approval. The Requisite Corebridge Vote shall have been obtained in accordance with applicable Law and the Organizational Documents of
Corebridge.
(c)
Listing. The shares of HoldCo Common Stock, any sub-series of Series 1 HoldCo Preferred Stock and Series 2 HoldCo Preferred Stock issuable in accordance with this
Agreement (including the shares of HoldCo Common Stock issuable upon the exercise of any Converted Equitable Options or Converted Corebridge Options) shall have been approved for listing on the NYSE, subject to official notice of issuance.
(d)
Government Approvals. (i) The waiting period (and any extension thereof) applicable to the consummation of the Transactions under the HSR Act shall have expired or
been earlier terminated,
and (ii) all the other Requisite Regulatory Approvals shall have been obtained and shall be in full force and effect.
(e)
Laws or Governmental Orders. No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Governmental
Order (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Transactions (it being understood and agreed by the Parties that, with respect to any such
Law or Governmental Order, only a Governmental Entity of competent jurisdiction in a jurisdiction listed on
Exhibit G shall constitute a Governmental Entity of competent jurisdiction for purposes of this
Section
8.1(e)) (such Law or Governmental Order, a “
Relevant Legal Restraint”).
(f)
Registration Statement. The Registration Statement shall have become effective in accordance with the provisions of the Securities Act. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and remain in effect, and no Proceedings for that purpose shall have commenced or be threatened in writing by the SEC, unless subsequently withdrawn.
(g)
Client Consent Percentage. The Equitable Client Consent Percentage shall be at least seventy five percent (75%).
8.2 Conditions to Obligations of Equitable. The obligations of
Equitable to effect the Equitable Merger are also subject to the satisfaction at the Closing or waiver by Equitable at or prior to the Closing of the following conditions:
(a)
Representations and Warranties. (i) Each of the representations and warranties of Corebridge set forth in
Section 5.1
(
Organization, Good Standing and Qualification),
Section 5.3 (
Corporate Authority; Approval),
Section 5.12
(
Takeover Statutes),
Section 6.5 (
Corebridge Capital Structure) (other than the first three sentences thereof),
Section 6.6 (
HoldCo, Equitable Merger Sub and Corebridge Merger Sub) and
Section 6.8 (
Corebridge Brokers and Finders) shall
have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as
of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all material respects as of such particular date or period of time); (ii) the first three sentences of
Section 6.5 (
Corebridge Capital Structure) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, except
for inaccuracies that, in the aggregate, result in a
de minimis increase in the total fully diluted equity capitalization of Corebridge (except to the extent that any such representation and warranty
expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all material respects as of such particular date or period of time); (iii) the representations and
warranties of Corebridge set forth in
Section 5.7(b) (
Absence of Certain Changes or Events) shall have been true and correct in all respects as of the date of this Agreement and shall be true and
correct in all respects as of the Closing Date; and (iv) each other representation and warranty of Corebridge set forth in
Article V and
Article VI
shall be true and correct in all respects (without giving effect to any qualification by materiality or Material Adverse Effect contained therein) as of the date of this Agreement and as of the Closing Date (except to
the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all respects as of such particular date or
period of time), except, in the case of this clause (iv), for any failure of any such representation and warranty to be so true and correct that has not had and would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Corebridge.
(b)
Performance of Obligations of Corebridge, HoldCo, Equitable Merger Sub and Corebridge Merger Sub. Each of Corebridge, HoldCo, Equitable Merger Sub and Corebridge
Merger Sub shall have performed or complied in all material respects with the obligations required to be performed or complied with by it under this Agreement at or prior to the Closing.
(c)
No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to Corebridge that is continuing.
(d)
Equitable Tax Opinion. Equitable shall have received a written opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, or, if Paul,
Weiss, Rifkind, Wharton & Garrison LLP is unable, or declines, to deliver such opinion, of Skadden, Arps, Slate, Meagher & Flom LLP or other Tax Counsel, dated as of the Closing Date,
and in form and
substance reasonably satisfactory to Equitable, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Mergers will qualify for the Intended Tax Treatment (the “
Equitable Tax
Opinion”). In rendering the Equitable Tax Opinion, Tax Counsel shall be entitled to receive and rely upon the certificates that shall be provided to it by each of Equitable and Corebridge pursuant to
Section 7.12(b).
(e)
Certificate. Equitable shall have received a certificate of the Chief Executive Officer or the Chief Financial Officer of Corebridge, certifying that the conditions
set forth in
Section 8.2(a),
Section 8.2(b) and
Section 8.2(c) have been
satisfied.
8.3 Conditions to Obligations of Corebridge, HoldCo, Equitable Merger Sub
and Corebridge Merger Sub. The obligations of Corebridge, HoldCo, Equitable Merger Sub and Corebridge Merger Sub to effect the Mergers are also subject to the satisfaction at the Closing or waiver by Corebridge at or prior to the Closing of
the following conditions:
(a)
Representations and Warranties. (i) Each of the representations and warranties of Equitable set forth in
Section 5.1
(
Organization, Good Standing and Qualification),
Section 5.3 (
Corporate Authority; Approval),
Section 5.12
(
Takeover Statutes),
Section 6.1 (
Equitable Capital Structure) (other than the first three sentences thereof) and
Section 6.3 (
Equitable Brokers and Finders) shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material
respects as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true and correct in all
material respects as of such particular date or period of time); (ii) the first three sentences of
Section 6.1 (
Equitable Capital Structure) shall have been true and correct in all material
respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date, except for inaccuracies that, in the aggregate, result in a
de minimis increase in
the total fully diluted equity capitalization of Equitable (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true
and correct in all material respects as of such particular date or period of time); (iii) the representations and warranties of Equitable set forth in
Section 5.7(b) (
Absence
of Certain Changes or Events) shall have been true and correct in all respects as of the date of this Agreement and shall be true and
correct in all respects as of the Closing Date; and (iv) each other
representation and warranty of Equitable set forth in Article V and Article VI shall be true and correct in all respects (without giving effect to any qualification by materiality or Material Adverse Effect contained therein) as
of the date of this Agreement and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty shall be so true
and correct in all respects as of such particular date or period of time), except, in the case of this clause (iv), for any failure of any such representation and warranty
to be so true and correct that has not had and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Equitable.
(b)
Performance of Obligations of Equitable. Equitable shall have performed or complied in all material respects with the obligations required
to be performed or complied with by it under this Agreement at or prior to the Closing.
(c)
No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Material Adverse Effect with respect to Equitable that is continuing.
(d)
Corebridge Tax Opinion. Corebridge shall have received a written opinion of Skadden, Arps, Slate, Meagher
& Flom LLP, or, if Skadden, Arps, Slate, Meagher & Flom LLP is unable, or declines, to deliver such opinion, of Paul, Weiss, Rifkind, Wharton & Garrison LLP or other Tax Counsel, dated as of the Closing Date, and in form and substance
reasonably satisfactory to Corebridge, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Mergers will qualify for the Intended Tax Treatment (the “
Corebridge Tax Opinion”).
In rendering the Corebridge Tax Opinion, Tax Counsel shall be entitled to receive and rely upon the certificates that shall be provided to it by each of Equitable and Corebridge pursuant to
Section 7.12(b).
(e)
Certificate. Corebridge shall have received a certificate of the Chief Executive Officer or the Chief Financial Officer of Equitable, certifying that the conditions
set forth in
Section 8.3(a),
Section 8.3(b) and
Section 8.3(c) have been
satisfied.
9.1 Termination by Mutual Written Consent. This Agreement may be
terminated and the Mergers may be abandoned at any time prior to the Corebridge Effective Time by mutual written consent of Equitable and Corebridge by action of the Equitable Board and the Corebridge Board.
9.2 Termination by Either Equitable or Corebridge. This Agreement may
be terminated and the Mergers may be abandoned at any time prior to the Corebridge Effective Time by either Equitable or Corebridge, if:
(a) the Mergers shall not have been consummated on or before 5:00 p.m. (Eastern Time) on December 26, 2026 (the “
Outside
Date”);
provided that if the Corebridge Effective Time has not occurred prior to or on such date by reason of nonsatisfaction of the conditions set forth in
Section 8.1(d) or
Section 8.1(e) (to the extent relating to
Requisite Regulatory Approvals) but all other conditions to the Closing set forth
Article VIII have been satisfied or (to the extent permitted by applicable Law) waived by the Party or Parties entitled to the benefits thereof (other than
those conditions that by their nature are to be satisfied or (to the extent permitted by applicable Law) waived at the Closing (so long as such conditions are reasonably capable of being satisfied at the Closing)), then the Outside Date shall
automatically, without any action on the part of the Parties hereto, be extended up to two (2) times, in each case, by an additional period of three (3) months, and such date as so extended shall be the “Outside Date” for all purposes hereunder;
provided,
further, that the right to terminate this Agreement pursuant to this
Section 9.2(a) shall not be available to any Party that has breached in any material respect
any of its obligations under this Agreement so as to result in the failure of a condition to the consummation of the Mergers to be satisfied;
(b) a Relevant Legal Restraint permanently restraining, enjoining or otherwise prohibiting consummation of the Transactions shall become final and non-appealable;
provided
that the right to terminate this Agreement pursuant to this
Section 9.2(b) shall not be available to any Party that has breached in any material respect any of its obligations under this
Agreement so as to result in the failure of the condition set forth in
Section 8.1(e) (
Laws or Governmental Orders) (to the extent relating to
Requisite Regulatory Approvals) to the consummation of the Mergers to be satisfied; or
(c) (i) if the Requisite Equitable Vote shall not have been obtained at the Equitable Stockholders Meeting (or, if the Equitable Stockholders Meeting has been adjourned or
postponed in accordance with this Agreement, at the final adjournment or postponement thereof), in each case, at which a vote on the adoption of this Agreement was taken or (ii) if the Requisite Corebridge Vote shall not have been obtained at the
Corebridge Stockholders Meeting (or, the Corebridge Stockholders Meeting has been adjourned or postponed in accordance with this Agreement, at the final adjournment or postponement thereof), in each case, at which a vote on the adoption of the
Agreement was taken.
9.3 Termination by Equitable. This Agreement may be terminated and the
Mergers may be abandoned at any time prior to the Corebridge Effective Time by Equitable:
(a) if
the Corebridge Board shall have made a Change of Recommendation; or
(b) if at any time prior to the Corebridge Effective Time, there has been a breach by Corebridge of any of its representations, warranties, covenants or agreements set forth in
this Agreement such that the conditions in
Section 8.2(a) or
Section 8.2(b) would not be satisfied (and such breach is not curable
prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) days after the giving of written notice thereof by Equitable to Corebridge or (ii) three (3) Business Days prior to the
Outside Date);
provided that the right to terminate this Agreement pursuant to this
Section 9.3(b) shall not be available if Equitable has breached in any material respect any of
its obligations under this Agreement so as to result in failure of a condition to the consummation of the Mergers to be satisfied.
9.4 Termination by Corebridge. This Agreement may be terminated and the
Mergers may be abandoned at any time prior to the Corebridge Effective Time by action of the Corebridge Board:
(a) if
the Equitable Board shall have made a Change of Recommendation; or
(b) if at any time prior to the Corebridge Effective Time, there has been a breach by Equitable of any of its representations, warranties, covenants or agreements set forth in
this Agreement such that the conditions in
Section 8.3(a) or
Section 8.3(b) would not be satisfied (and such breach is not curable
prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) days after the giving of written notice thereof by Corebridge to Equitable or (ii) three (3) Business Days prior to the
Outside Date);
provided that the right to terminate this Agreement pursuant to this
Section 9.4(b) shall not be available if Corebridge has breached in any material respect any of
its obligations under this Agreement so as to result in the failure of a condition to the consummation of the Mergers to be satisfied.
9.5 Effect of Termination and Abandonment.
(a) Except to the extent provided in
Section 9.5(b) and
Section 9.5(c)
below, in the event of termination of this Agreement and the abandonment of the Mergers pursuant to this
Article IX, this Agreement shall become void and of no effect with no liability to
any Person on the part of any Party (or any of its Representatives or Affiliates);
provided,
however, and notwithstanding anything in this Agreement to the contrary, (i) no such termination shall
relieve any Party of any liability or damages to any other Party resulting from any Willful Breach of this Agreement and (ii) the provisions set forth in Article X (Miscellaneous
and General), Section 7.13 (Expenses), this Section 9.5 (Effect of Termination and Abandonment) and the Confidentiality Agreement shall survive the termination of this Agreement.
(b) In the event that this Agreement is terminated:
(i) by either Equitable or Corebridge pursuant to
Section 9.2(a) (
Outside Date)
or
Section 9.2(c)(i) (
Requisite Corebridge Vote Not Obtained), or by Equitable pursuant to
Section 9.3(b) (
Corebridge Material Breach), and, in each case,
(A) a
bona fide Acquisition Proposal with respect to Corebridge shall have been made to the Corebridge Board or publicly made directly
to the stockholders of Corebridge or shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to Corebridge
(and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (1) at least four (4) Business Days prior to the date of such termination, with
respect to any termination pursuant to
Section 9.2(a) (
Outside Date) or
Section 9.3(b) (
Corebridge Material Breach), or (2) at least four (4) Business Days prior to the date of the Corebridge Stockholders Meeting, with respect to termination pursuant to
Section 9.2(c)(i) (
Requisite Corebridge Vote Not Obtained)), and
(B) within twelve (12) months after such termination, (1) Corebridge or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any
Acquisition Proposal with respect to Corebridge or (2) there shall have been consummated any Acquisition Proposal with respect to Corebridge (in each case of clauses
(1) and
(2), with
fifty percent (50%) being substituted in lieu of ten percent (10%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the
foregoing clauses (B) (1) or (B)(2), or
(ii) by Equitable pursuant to
Section 9.3(a) (
Corebridge Change of Recommendation),
then promptly, but in no event later than three (3) Business Days after the date of such termination, or
(iii) by either Equitable or Corebridge pursuant to
Section 9.2(c)(i) (
Requisite Corebridge Vote Not
Obtained) (and, at the time of such termination pursuant to
Section 9.2(c)(i) (
Requisite Corebridge Vote Not Obtained), Corebridge had the right to terminate this Agreement pursuant to
Section
9.3(a) (
Corebridge Change of Recommendation)), then promptly, but in no event later than, in the case of such termination by Corebridge, three (3)
Business Days or, in the case of such termination by Equitable, one (1) Business Day after the date of such termination, Corebridge shall, in the case of
Section 9.5(b)(i),
Section 9.5(b)(ii) or
Section 9.5(b)(iii), pay the termination fee of $475,000,000 (the “
Corebridge Termination Fee”),
to Equitable or its designee by wire transfer of immediately available cash funds. In no event shall Corebridge be required to pay the Corebridge Termination Fee on more than one occasion.
(c) In the event that this Agreement is terminated:
(i) by either Equitable or Corebridge pursuant to
Section 9.2(a) (
Outside Date)
or
Section 9.2(c)(ii) (
Requisite Equitable Vote Not Obtained), or by Corebridge pursuant to
Section 9.4(b) (
Equitable Material Breach), and, in each case,
(A) a
bona fide Acquisition Proposal with respect to Equitable shall have been made to the Equitable Board or publicly made directly to
the stockholders of Equitable or shall otherwise have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to Equitable (and such Acquisition
Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (1) at least four (4) Business Days prior to the date of such termination, with respect to any termination pursuant to
Section 9.2(a) (
Outside Date) or
Section 9.4(b) (
Equitable Material Breach),
or (2) at least four (4) Business Days prior to the date of the Equitable Stockholders Meeting, with respect to termination pursuant to
Section 9.2(c)(ii) (
Requisite Equitable Vote Not Obtained)),
and
(B) within twelve (12) months after such termination, (1) Equitable or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to any
Acquisition Proposal with respect to Equitable or (2) there shall have been consummated any Acquisition Proposal with respect to Equitable (in each case of clauses
(1) and
(2), with fifty
percent (50%) being substituted in lieu of ten percent (10%) in each instance thereof in the definition of “Acquisition Proposal”), then immediately prior to or concurrently with the occurrence of either of the events described in the foregoing
clauses (B)(1) or (B)(2),
(ii) by Corebridge pursuant to
Section 9.4(a) (
Equitable Change of Recommendation),
then promptly, but in no event later than three (3) Business Days after the date of such termination, or
(iii) by either Equitable or Corebridge pursuant to
Section 9.2(c)(ii) (
Requisite Equitable Vote Not
Obtained) (and, at the time of such termination pursuant to
Section 9.2(c)(ii) (
Requisite Equitable Vote Not Obtained), Corebridge had the right to terminate this Agreement pursuant to
Section
9.4(a) (
Equitable Change of Recommendation)), then promptly, but in no event later than, in the case of such termination by Corebridge, three (3)
Business Days or, in the case of such termination by Equitable, one (1) Business Day after the date of such termination,
Equitable shall, in the case of
Section 9.5(c)(i),
Section 9.5(c)(ii) or
Section 9.5(c)(iii), pay the termination fee
of $475,000,000 (the “
Equitable Termination Fee”), to Corebridge or its designee by wire transfer of immediately available cash funds. In no event shall Equitable be required to pay the Equitable
Termination Fee on more than one occasion.
(d) The Parties hereby acknowledge and agree that the agreements contained in this
Section 9.5 are an integral part of
the Transactions, and that, without these agreements, the other Parties would not enter into this Agreement; accordingly, if Equitable or Corebridge, as applicable, fails to promptly pay the amount due pursuant to this
Section 9.5, and, in order to obtain such payment, Equitable or Corebridge, as applicable, commences a suit that results in a judgment against Equitable or Corebridge, as applicable, for the fees set forth in
this
Section 9.5 or any portion of such fees, such paying Party shall pay the other Party its reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) in
connection with such suit, together with interest on the amount of the fee at the prime rate as published by
The Wall Street Journal (in effect on the date such payment was required to
be made) from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that
any termination fee becomes payable by, and is paid by, Equitable or becomes payable by, and is paid by, Corebridge, as applicable, such fee shall be the receiving Party’s sole and exclusive remedy for damages against the other Parties and
their respective former, current or futures stockholders, directors, officers, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this
Agreement or the failure of the Transactions to be consummated; provided that no such payment shall relieve any Party of any liability or damages to any other Party resulting from any Willful Breach of this Agreement.
MISCELLANEOUS AND GENERAL
10.1 Survival. This
Article X
and the agreements of the Parties contained in
Article II (
Merger Consideration; Effect of the Mergers on Capital Stock),
Article III (
Delivery of Merger Consideration; Procedures for Surrender),
Section 4.1 (
HoldCo Governance and Additional Matters),
Section 7.11 (
Employee Benefits),
Section 7.13 (
Expenses) and
Section 7.14 (
Indemnification; Directors’ and Officers’ Insurance) shall survive the
consummation of the Mergers. All other representations, warranties, covenants and agreements in this Agreement or in any instrument or other document delivered pursuant to this Agreement shall not survive the consummation of the Mergers.
10.2 Amendment; Waiver. Subject to the provisions of applicable Laws and
the provisions of
Section 7.14 (
Indemnification; Directors’ and Officers’ Insurance), at any time prior to the Corebridge Effective Time, this Agreement may be amended, modified or waived if, and
only if, such amendment, modification or waiver is in writing and signed, in the case of an amendment, modification or waiver, by the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective;
provided,
however, that, after the Requisite Equitable Vote and/or Requisite Corebridge Vote shall have been obtained, no such amendment, modification or waiver shall be made that pursuant to applicable Law requires further approval by the
stockholders of Corebridge or Equitable, as applicable, without such further approval. The conditions to each of the respective Parties’ obligations to consummate the Transactions are for the sole benefit of such Party and may be waived by such
Party in whole or in part to the extent permitted by applicable Law;
provided that any such waiver shall only be effective if made in writing and executed by the Party against whom the waiver is to be effective. No failure or delay by any
Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.
10.3 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic
transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
10.4 Governing Law and Venue; Submission to Jurisdiction; Selection of
Forum; Waiver of Trial by Jury.
(a) This Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the Law of the State of Delaware
without regard to the conflict of law principles thereof (or any other jurisdiction) to the extent that such principles would result in the application of the Law of another jurisdiction.
(b) Each of the Parties agrees that it shall bring any action or Proceeding in respect of any claim arising under or relating to this Agreement or
the Transactions exclusively in the Court of Chancery for the State of Delaware in and for New Castle County, Delaware (or, in the event that such court does not have subject matter jurisdiction over such action or Proceeding, the United States
District Court for the District of Delaware) (the “
Chosen Court”) and, solely in connection with such claims, (i) irrevocably submits to the exclusive jurisdiction of the Chosen
Court, (ii) waives any objection to the laying of venue in any such action or Proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees
that mailing of process or other papers in connection with any such action or Proceeding in the manner provided in
Section 10.6 or in such other manner as may be permitted by Law shall be
valid and sufficient service thereof.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY BE IN CONNECTION WITH, ARISE OUT OF OR OTHERWISE RELATE TO THIS AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT
DELIVERED PURSUANT TO THIS AGREEMENT OR OTHER DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT
DELIVERED PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY HEREBY ACKNOWLEDGES AND CERTIFIES (I) THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF ANY ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE TRANSACTIONS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, ACKNOWLEDGMENTS AND CERTIFICATIONS CONTAINED IN THIS
SECTION 10.4(c).
10.5 Specific Performance. Each of the Parties acknowledges and agrees
that the rights of each Party to consummate the Transactions are special, unique and of extraordinary
character and that if for any reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable harm or damage would be caused for which money damages would not be an adequate remedy. Accordingly, each Party agrees that, in addition to any other available
remedies a Party may have in equity or at Law, each Party shall be entitled to enforce specifically the terms and provisions of this Agreement and to obtain an injunction restraining any breach or violation or threatened breach or violation of
the provisions of this Agreement in the Chosen Court without necessity of posting a bond or other form of security. In the event that any action or Proceeding should be brought in equity to enforce the provisions of this Agreement, no Party
shall allege, and each Party hereby waives the defense, that there is an adequate remedy at Law.
10.6 Notices. All notices, requests, instructions or other
communications or documents to be given or made hereunder by any Party to the other Parties shall be in writing and shall be deemed to have been duly given when (a) served by personal delivery or by an internationally recognized overnight courier
service upon the Party or Parties for whom it is intended, (b) delivered by registered or certified mail, return receipt requested or (c) sent by e-mail (to the extent that no “bounce back” or similar message indicating non-delivery is received
with respect thereto);
provided that the transmission of the email is promptly confirmed by telephone or response email:
If to Equitable:
Equitable Holdings, Inc.
1345 Avenue of the Americas
New York, NY 10105
| |
Attention:
|
Mark Pearson
Kurt Meyers
|
With a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
| |
Attention:
|
Andrew D. Krause
Adam M. Givertz
Scott A. Barshay
|
|
E-mail:
|
akrause@paulweiss.com
agivertz@paulweiss.com
sbarshay@paulweiss.com
|
If to Corebridge:
Corebridge Financial, Inc.
30 Hudson Street, 17th Floor
Jersey City, NJ 07302
|
Attention:
|
Marc Costantini
Polly N. Klane
|
With a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
|
Attention:
|
Todd E. Freed
Patrick J. Lewis
Elena M. Coyle
|
|
Email:
|
todd.freed@skadden.com
patrick.lewis@skadden.com
elena.coyle@skadden.com
|
or to such other Person or addressees as has been designated in writing by the party to receive such notice provided above.
(a) For purposes of this Agreement, the following terms (including, with correlative meaning, their singular and plural variations) shall have the following meanings:
“
401(k) Plan” means a Benefit Plan that is a defined contribution plan with a qualified cash or deferred arrangement within the meaning of Section
401 of the
Code.
“
Acquisition Proposal” means any proposal, offer, inquiry or indication of interest (whether or not in writing) with respect to any (i)
direct
or indirect acquisition or purchase of any business or assets of Equitable or Corebridge, as applicable, or any of its Subsidiaries that, individually or in the aggregate, constitutes ten percent (10%) or more of the net revenues, net income,
EBITDA or assets (based on the fair market value thereof) of Equitable or Corebridge, as applicable, and any of their respective Subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase of ten percent (10%) or more of any
class of equity securities (or any equity securities convertible into, or exchangeable or redeemable for, any such equity or voting securities) of Equitable or Corebridge, as applicable, or any of their respective Subsidiaries whose business
constitutes ten percent (10%) or more of the net revenues, net income, EBITDA or assets (based on the fair market value thereof) of Equitable or Corebridge, as applicable, and any of their respective Subsidiaries, taken as a whole, (iii) tender
offer or exchange offer that, if consummated, would result in any Person (other than Equitable or Corebridge or any of their Subsidiaries) or group (as defined in Section 13 of the Exchange Act) beneficially owning ten percent (10%) or more of
any class of equity securities (or any equity securities convertible into, or exchangeable or redeemable for, any such equity or voting securities) of Equitable or Corebridge, as applicable, or any of their respective Subsidiaries whose
business constitutes ten percent (10%) or more of the net revenues, net income, EBITDA or assets (based on the fair market value thereof) of Equitable or Corebridge, as applicable, and any of their respective Subsidiaries, taken as a whole, or
(iv) merger, consolidation, business combination, joint venture, partnership, recapitalization, liquidation, dissolution or similar transaction involving Equitable or Corebridge, as applicable, or any of their respective Subsidiaries whose
business constitutes ten percent (10%) or more of the net revenue, net income, EBITDA or assets (based on the fair market value thereof) of Equitable or Corebridge, as applicable, and any of their respective Subsidiaries, taken as a whole,
other than the Transactions.
“Advisers Act” means the Investment Advisers Act of 1940.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first
Person; provided that no Fund will be deemed to be an Affiliate of any Party.
“AI Technology” means all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural
networks, all other artificial intelligence tools or methodologies, and all Software implementations of any of the foregoing.
“AllianceBernstein” means, collectively, each of AllianceBernstein L.P. and AllianceBernstein Holding L.P.
“AllianceBernstein Holding Units” means the Units Representing Assignments of Beneficial Ownership of Limited Partnership Interest in AllianceBernstein Holding L.P.
“AllianceBernstein Units” means the Units of Limited Partnership Interest in AllianceBernstein L.P.
“Antitrust Law” means the Sherman Antitrust Act of 1890, the Clayton Act of 1914, the HSR Act and all other United States or non-United States antitrust, competition or other Laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Base Date” means February 28, 2026.
“Base Date Equitable Client AUM” means, for any Equitable Client, the assets under management with respect to such Equitable Client as of the Base Date, as determined by the applicable Equitable Investment
Adviser Subsidiary consistent with past practice, excluding any portion of the assets under management attributable to a request from an investor in an Equitable Fund to withdraw or redeem its invested capital or account balance that has been
delivered to Equitable, one of its Subsidiaries or an Equitable Fund as of the date of this Agreement.
“Base Date Equitable Client Revenue Run-Rate” means the aggregate Equitable Client Revenue Run-Rate for all Equitable Clients determined as of the Base Date.
“Benefit Plan” means any benefit or compensation plan, program, policy, practice, agreement, Contract, arrangement or other obligation, whether or not in writing and whether or not funded, in each case, that
is sponsored or maintained by, or required to be contributed to, or with respect to which any potential liability is borne by Equitable or Corebridge or any of their respective Subsidiaries. Benefit Plans include, but are not limited to,
“employee benefit plans” within the meaning of ERISA, employment, non-compete and/or non-solicit, consulting, retirement, severance, termination or change in control agreements, deferred compensation, equity-based, incentive, bonus,
supplemental retirement, profit sharing, insurance, medical, health, welfare, fringe or other benefits or remuneration of any kind.
“Broker-Dealer Subsidiary” means each Subsidiary of a Party that is registered, or required to be registered, as a broker-dealer under the Exchange Act or the MSRB, as applicable.
“Business Day” means any day ending at 11:59 p.m. (Eastern Time) other than a Saturday or Sunday or a day on which banks in the City of New York are required or authorized by Law to close.
“Client” means any Person to which any Party or any of its Subsidiaries provides investment management, investment advisory services (including any sub-advisory services) or other services, whether pursuant
to an Investment Advisory Agreement, a brokerage agreement or any other agreement (excluding, for the avoidance of doubt, any Fund Investors in their capacity as such).
“Closing Equitable Client Revenue Run-Rate” means the aggregate Equitable Client Revenue Run-Rate for all Equitable Consenting Clients.
“Company Intellectual Property” means all Intellectual Property owned or purported to be owned by, as applicable, Equitable and its Subsidiaries or Corebridge and its Subsidiaries.
“Contract” means, with respect to a Person, any oral or written contract, agreement, lease, license, note, mortgage, indenture, arrangement or other obligation to which such Person is a party or by which
such Person is otherwise bound.
“
Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section
302 of ERISA, (iii) under Sections
412 and
4971 of the Code and (iv) as a result of a failure to comply with the continuation coverage requirements of Section
601
et seq. of ERISA and Section 4980B of the Code.
“Corebridge Benefit Plan” means any Benefit Plan that is sponsored or maintained by, or required to be contributed to, or with respect to which any potential liability is borne by Corebridge or any of its
Subsidiaries.
“Corebridge Common Stock” means shares of Corebridge common stock, par value $0.01 per share.
“Corebridge Compensation Committee” means the Compensation and Management Development Committee of the Corebridge Board.
“Corebridge Eligible Shares” means the Corebridge Eligible Common Shares and Corebridge Eligible Preferred Shares, collectively.
“Corebridge ESPP” means the Corebridge 2026 Employee Stock Purchase Plan.
“Corebridge ESPP Approval” means the requisite stockholder approval of the Corebridge ESPP during Corebridge’s 2026 Annual Meeting of Stockholders.
“Corebridge Excluded Shares” means shares of Corebridge Common Stock owned by Corebridge, Equitable or any of their respective wholly-owned Subsidiaries of Corebridge (or are held in treasury by Corebridge),
excluding any such shares of Corebridge Common Stock owned by a Corebridge Benefit Plan, held on behalf of third parties or held by a Fund.
“Corebridge Leased Real Property” means Leased Real Property of Corebridge.
“Corebridge Owned Real Property” means Owned Real Property of Corebridge.
“Corebridge Preferred Stock” means shares of Corebridge’s 6.875% Fixed Rate Reset Non-Cumulative Preferred Stock, Series A, par value $1.00 per share.
“Corebridge Stock” means the Corebridge Common Stock and the Corebridge Preferred Stock.
“Corebridge Stock Plan” means Corebridge Financial, Inc. Omnibus Incentive Plan, effective as of September 6, 2022, as amended on February 16, 2023, which, for the avoidance of doubt, shall include any sub
plans issued thereunder, including, but not limited to, Corebridge Financial, Inc. Long Term Incentive Plan, effective as of September 6, 2022, as amended and restated on November 15, 2023.
“Corebridge Stockholders Meeting” means the meeting of stockholders of Corebridge to be held in connection with the Corebridge Merger, as may be adjourned or postponed from time to time.
“Designated Executive” means, with respect to a Party, each individual in the positions scheduled on Section 10.7(a)(i) of the Party’s Disclosure Letter.
“Domiciliary Department of Insurance” means (i) the domiciliary state insurance regulatory of the applicable Insurance Subsidiary or (ii) for any Insurance Subsidiary organized in Bermuda, the Bermuda
Monetary Authority.
“DTC” means The Depositary Trust Company.
“Effect” means any effect, event, development, change, state of facts, condition, circumstance or occurrence.
“Eligible Shares” means the Eligible Common Shares and Eligible Preferred Shares, collectively.
“Employee” means any current or former employee, officer, director or independent contractor (who is a natural person) of Equitable or Corebridge or any of their respective Subsidiaries, as applicable.
“Environmental Law” means any Law relating to: (i) pollution or the protection of the environment or natural resources, (ii) the protection of worker or human health and safety (to the extent worker or human
health and safety relates to exposure to Hazardous Materials), and (iii) the handling, use, presence, disposal, release or threatened release of, transport, contamination by, or exposure to, any Hazardous Materials.
“Equitable Benefit Plan” means any Benefit Plan that is sponsored or maintained by, or required to be contributed to, or with respect to which any potential liability is borne by Equitable or any of its
Subsidiaries.
“Equitable Client” means any Client of Equitable or any of its Subsidiaries.
“Equitable Client Consent Percentage” means a fraction (expressed as a percentage), the numerator of which is the Closing Equitable Client Revenue Run-Rate and the denominator of which is the Base Date
Equitable Client Revenue Run-Rate.
“
Equitable Client Revenue Run-Rate” means, with respect to any Equitable Client, the aggregate annualized investment advisory, investment management, subadvisory or other similar
recurring fees for such Equitable Client (but excluding performance-based, incentive, contingent or similar fees or fulcrum fee adjustments, distribution and servicing fees, securities lending fees, transaction revenues and fund administration
fees (
provided that in the case of Equitable Funds that pay a unitary management fee, the entire unitary management fee shall be included) payable to Equitable or any of its Subsidiaries as of the Base Date, determined by multiplying (i)
the Base Date Equitable Client AUM for such Equitable Client
by (ii) the applicable annual fee rate for such Equitable Client under the applicable Investment Advisory Agreement as of the Base Date).
“Equitable Common Stock” means the shares of Equitable common stock, par value $0.01 per share.
“Equitable Compensation Committee” means the Compensation and Talent Committee of the Equitable Board.
“Equitable Consenting Client” means any Equitable Client for which the consent contemplated by Section 7.19 has been obtained; provided that the consent of a Fund Investor (or SMA Client) in
an Equitable Fund shall be deemed to have not been given if such consent is revoked in writing by such Fund Investor (or SMA Client) and not reinstated prior to the Closing Date.
“Equitable Eligible Shares” means the Equitable Eligible Common Shares and Equitable Eligible Preferred Shares, collectively.
“Equitable ESPP” means The AXA Equitable Holdings, Inc. Stock Purchase Plan, effective as of December 1, 2018.
“Equitable Excluded Shares” means shares of Equitable Common Stock owned by Equitable, Corebridge or any of their respective wholly-owned Subsidiaries (or are held in treasury by Equitable), excluding any
such shares of Equitable Common Stock owned by an Equitable Benefit Plan, held on behalf of third parties or held by a Fund.
“Equitable Fund” means each Fund and SMA that is party to an Investment Advisory Agreement with Equitable or any of its Subsidiaries.
“Equitable Leased Real Property” means Leased Real Property of Equitable.
“Equitable Owned Real Property” means Owned Real Property of Equitable.
“Equitable Series A Preferred Stock” means shares of Equitable’s Series A Fixed Rate Noncumulative Perpetual Preferred Stock, par value $1.00 per share.
“
Equitable Series C Preferred Stock” means shares of Equitable’s
Series C Fixed Rate Noncumulative Perpetual Preferred Stock, par value $1.00 per share.
“Equitable Stock Plan” means Equitable 2019 Omnibus Incentive Plan, effective as of January 1, 2019, as amended on each of February 28, 2019, March 18, 2020 and February 16, 2021, and amended and restated as
of May 21, 2025.
“Equitable Stockholders Meeting” means the meeting of stockholders of Equitable to be held in connection with the Equitable Merger, as may be adjourned or postponed from time to time.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“
ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with Equitable or Corebridge or any of their respective Subsidiaries, as applicable, as a “single employer”
within the meaning of Section
414 of the Code.
“ERISA Plans” means each Benefit Plan that is an “employee benefit plans” within the meaning of Section 3(3) of ERISA, excluding “multiemployer plans” within the meaning of Section 3(37) of ERISA.
“Exchange Act” means the Securities Exchange Act of 1934.
“FASB” means the Financial Accounting Standards Board.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Fund” means any Public Fund or Private Fund; provided that solely for purposes of Section 5.24 and Section 5.26, the term “Fund” shall not include any Sub-Advised Fund.
“Fund Documents” means with respect to a Fund, the then-current limited partnership agreement, limited liability company agreement, operating agreement, shareholders’ agreement, memorandum and articles of
association, agreement and declaration of trust or similar governing document governing the operations of any entities that comprise such Fund, the then-current Investment Advisory Agreements, managed account agreements, sponsorship or other
agreements in respect of the management thereof, as amended from to time to time, as well as the then-current offering documents (if any) of such Fund.
“Fund Investor” means, with respect to each Fund, each limited partner, shareholder, equityholder, partnership interest holder or other investor of such Fund (in each case, excluding any special limited
partner and any Fund general partner, managing member or similar Person in their capacity as such).
“Governmental Entity” means any United States, non-United States, supranational or transnational governmental (including public international organizations), quasi-governmental, regulatory or self-regulatory
authority, agency, commission, body, department or instrumentality or any court, tribunal or arbitrator, arbitration panel or other entity or subdivision thereof or other legislative, executive or judicial entity or subdivision thereof, in each
case, of competent jurisdiction.
“
Governmental Order” means any order, writ, judgment, temporary, preliminary or permanent injunction, decree, direction, settlement, ruling, stipulation, determination, judicial
decision, verdict or award, whether civil, criminal or administrative, in each case, that is entered, issued, made or rendered by or with any Governmental Entity.
“Group Entities” means, with respect to either Equitable or Corebridge, such Party and each of its Subsidiaries.
“Hazardous Materials” means any chemical, material, substance or waste that is classified or regulated as “hazardous,” “toxic,” “corrosive,” “radioactive,” or as a “pollutant” or “contaminant,” or words of
similar meaning or import under, or for which liability or standards of conduct may be imposed pursuant to, any Environmental Law, including petroleum, petroleum products and by-products, per- and polyfluoroalkyl substances, asbestos and
asbestos-containing materials, lead, polychlorinated biphenyls, urea formaldehyde, radioactive materials and radiation.
“HoldCo ESPP” means, as applicable, the Equitable ESPP as converted at the Effective Time or the Corebridge ESPP, as converted at the Effective Time.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvement Act of 1976.
“Indebtedness” means, with respect to any Person, without duplication, all obligations or undertakings by such Person (i) for borrowed money (including deposits or advances of any kind to such Person); (ii)
evidenced by bonds, debentures, notes or similar instruments; (iii) for capitalized leases or to pay the deferred and unpaid purchase price of property or equipment; (iv) pursuant to securitization or factoring programs or arrangements; (v)
pursuant to guarantees and arrangements having the economic effect of a guarantee of any Indebtedness of any other Person (other than between or among any of Equitable and its wholly owned Subsidiaries or between or among Corebridge and its
wholly owned Subsidiaries); (vi) to maintain or cause to be maintained the financing, financial position or covenants of others or to purchase the obligations or property of others; (vii) net cash payment obligations of such Person under swaps,
options, derivatives and other hedging Contracts or arrangements that will be payable upon termination thereof (assuming termination on the date of determination); or (viii) letters of credit, bank guarantees, and other similar Contracts or
arrangements entered into by or on behalf of such Person.
“
Insurance Contracts” means any insurance or annuity policies and contracts, together with any binder, slip, rider, endorsement or certificate, and forms with respect thereto, in
each case issued, renewed, ceded or assumed by any Insurance Subsidiary.
“Insurance Law” means all applicable Laws applicable to the business of insurance or reinsurance or the regulation of insurance or reinsurance companies or producers, whether federal, national, provincial,
state, local foreign or multinational, and all applicable orders, directives of, and market conduct recommendations resulting from market conduct or other examinations by, Insurance Regulators.
“Insurance Regulator” means, with respect to any jurisdiction, the Governmental Entity charged with the supervision of insurance or reinsurance companies or branches in such jurisdiction (and where more than
one such Governmental Entity supervises insurance companies or reinsurance companies or branches in such jurisdiction, each Governmental Entity).
“Insurance Subsidiaries” means, with respect to either Equitable or Corebridge, each of its Group Entities which, by virtue of its operations and activities, is required to be licensed as an insurance or
reinsurance company in accordance with applicable Law.
“Intellectual Property” means all intellectual property anywhere in the world (whether foreign, state or domestic, registered or unregistered), including rights in and to: (i) patents and utility models of
any kind, patent applications, including provisional applications, statutory invention registrations, inventions, discoveries and invention disclosures (whether or not patented), and all continuations, continuation-in-part, divisions, reissues,
re-examinations, substitutions, and extensions thereof, (ii) trademarks, service marks, trade dress, logos, Internet domain names, and other similar identifiers of origin, trade names and corporate names, whether registered or unregistered, any
registrations and applications for registration thereof, and all goodwill associated with any of the foregoing, (iii) works of authorship (whether or not copyrightable), copyrights, rights under copyrights and industrial designs, proprietary
rights in Software, databases and other compilations of data or information whether registered or unregistered, and any registrations, renewals and applications for registration for any of the foregoing and all moral rights with respect to the
foregoing, (iv) trade secrets and other rights in know-how and confidential or proprietary information, (v) proprietary rights in technical data, specifications, designs, techniques, processes, methods, inventions, discoveries and algorithms
and (vi) all other intellectual property or proprietary rights.
“Interim Public Fund IAA Approval” means approval by a Public Fund Board of an interim investment advisory agreement approved in accordance with Rule 15a-4 under the Investment Company Act, including
approval of any interim subadvisory agreement.
“
Intervening Event” means any material Effect that was not known to or reasonably foreseeable by the Equitable Board or the Corebridge Board, as applicable, on the date of this Agreement (or, if known to or
reasonably foreseeable, the consequences of which were not known to or reasonably foreseeable by such board of directors as of the date of this Agreement), which Effect or consequences, as applicable, become known by such board of directors
prior to the time Equitable receives the Requisite Equitable Vote or Corebridge receives the Requisite Corebridge Vote, as applicable;
provided that in no event shall any Effect that relates to (i) an Acquisition Proposal or a Superior
Proposal or any inquiry or communications relating thereto, (ii) any changes in the market price or trading volume of Equitable Common Stock or Corebridge Common Stock or any ratings upgrade or change in ratings outlook for Equitable,
Corebridge or any of their Subsidiaries or (iii) Equitable or Corebridge, respectively, or any of their respective Subsidiaries (A) meeting, exceeding or failing to meet internal or publicly announced financial projections, forecasts, estimates
or predictions of revenues, earnings or other financial or operating metrics for any period, or any predictions or expectations of any securities analysts of Equitable or Corebridge, be taken into account for purposes of determining whether an
Intervening Event has occurred (it being understood that the facts or occurrences giving rise or contributing to the matters described in clause
s (ii) and (iii) that are not otherwise excluded from the definition of
“Intervening Event” may be taken into account).
“Investment Adviser Subsidiaries” means, with respect to any Party, each Subsidiary of such Party that is registered or required to be registered as an investment adviser under the Advisers Act as of the
date of this Agreement.
“Investment Advisory Agreement” means a Contract under which any Party or any of its Subsidiaries acts as an investment advisor or sub-advisor to, or manages any investment or trading account of, any Client
and any other Contract subject to Section 205 of the Advisers Act.
“
Investment Assets” means all bonds, stocks, other securities, mortgage loans and other investments owned, held or made
by a Party’s Insurance Subsidiaries in such Insurance Subsidiaries’ general accounts, non-insulated separate accounts and guaranteed separate accounts.
“Investment Company Act” means the Investment Company Act of 1940.
“IT Assets” means all computers, hardware, servers, workstations, databases, networks, telecommunications systems, websites, interfaces, platforms, routers, hubs, switches, networks, data communications
lines and all other information technology equipment and all associated documentation and Software stored thereon.
“
Knowledge” (i) with respect to Corebridge or any of its Subsidiaries means the actual knowledge of the Persons listed on
Section 10.7(a)(ii) of the Corebridge Disclosure
Letter and (ii) with respect to Equitable or any of its Subsidiaries means the actual knowledge of the Persons listed on
Section 10.7(a)(ii) of the Equitable Disclosure Letter.
“
Laws” means any federal, state, local, foreign, international or transnational law, statute, ordinance, common law, rule, regulation, standard, judgment, determination,
Governmental Order, writ, injunction, decree, arbitration award, treaty, agency requirement, authorization, license or permit of any Governmental Entity.
“Leased Real Property” with respect to Equitable or Corebridge, means all leasehold or subleasehold estates and other rights to use and occupy any land, buildings, structures, improvements, fixtures or other
interest in Real Property held by Equitable and any of its Subsidiaries or Corebridge and any of its Subsidiaries, as applicable.
“Licenses” means all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity.
“
Material Adverse Effect” with respect to Equitable or Corebridge, means any Effect that, individually or in the aggregate with any other Effect is, or would reasonably be
expected to (i) have a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of such Party and its Subsidiaries, taken as a whole or (ii) prevent the consummation of, or materially impair
such Party’s ability to consummate, the Transactions by the Outside Date;
provided that, for the purposes of clause
(i), none of the following, alone or in combination, shall be deemed to constitute, or be
taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur:
(A) Effects generally affecting (1) the economy, credit, capital, securities or financial markets (including changes generally in prevailing interest rates, currency exchange rates,
credit markets and price levels or trading volumes), or (2) political, regulatory or business conditions, in each case, in the United States or elsewhere in the world;
(B) changes in trade regulations, such as the imposition of new or increased trade restrictions, tariffs, trade policies, sanctions or disputes, or changes in, or any consequences
resulting from, any “trade war” or similar actions in the United States or elsewhere in the world;
(C) Effects that are the result of factors generally affecting the industry, markets or geographical areas in which such Party and its Subsidiaries operate;
(D) any Effect resulting from the entry into, announcement or consummation of this Agreement or the pendency of the Mergers and the Transactions, including the loss of, or Effect in, the
relationship of such Party or any of its Subsidiaries, contractual or otherwise, with customers, Employees, Clients, unions, suppliers, distributors, financing sources, reinsurers, partners or similar relationship, or departure of any employee
or officer of such Party or any of its Subsidiaries (provided that the exception in this clause (D) shall not apply to the representations and warranties contained in Section 5.4(b)
or the related Closing condition);
(E) any action taken (or not taken) by such Party or any of its Subsidiaries that is expressly required to be taken (or not to be taken) by this Agreement or at the express written
request of the other Party or with the other Party’s prior written consent (except for any obligation hereunder to operate in the Ordinary Course or similar obligation);
(F) changes or modifications, and prospective changes or modifications, in any applicable Law, GAAP, SAP or in accounting standards (including changes prescribed or permitted by the
applicable Insurance Regulators and accounting pronouncements by the SEC, the NAIC and FASB), including the repeal thereof, or changes or modifications in the interpretation or enforcement thereof, after the date of this Agreement;
(G) any failure by such Party to meet any internal or publicly announced financial projections, forecasts, estimates or predictions of revenues, earnings or other financial or operating
metrics for any period, or any predictions or expectations of any securities analysts;
provided that the exception in this clause (G) shall not prevent or otherwise affect a determination that any Effect underlying such failure has
resulted in, or contributed to, or would reasonably be expected to result in, or contribute to, a Material Adverse Effect (if not otherwise falling within any of the exceptions in clauses (A) through
(E) and
(G) through
(I));
(H) any Effect resulting from acts of war (whether or not declared), civil disobedience, civil or political unrest, hostilities, sabotage, cyber-terrorism (including cyber-terrorism data
breaches) or terrorism, military actions or the escalation or worsening of any of the foregoing, any hurricane, flood, tornado, earthquake or other weather or natural or manmade disaster, or any outbreak of illness, pandemic, epidemic or other
public health event or any other force majeure event (and any governmental or industry responses thereto), including any worsening of such conditions, whether or not caused by any Person;
(I) any Proceeding arising from allegations of any breach of fiduciary duty or allegations of violation of Law, in each case, relating to this Agreement or the Transactions (provided
that the underlying causes of any such Proceeding, to the extent not otherwise excluded from the definition of Material Adverse Effect, may be taken into consideration when determining whether a Material Adverse Effect has occurred); or
(J) (1) a decline in the market price, or change in trading volume, of the shares of common stock of such Party on the NYSE or (2) any ratings downgrade or change in ratings outlook for
such Party or any of its Subsidiaries;
provided that the exceptions in this clause (J) shall not prevent or otherwise affect a determination that any Effect underlying such decline or change has resulted in, or contributed to, or would
reasonably be expected to result in, or contribute to, a Material Adverse Effect (if not otherwise falling within any of the exceptions in clauses (A) through
(I));
provided, further, that, with respect to clauses (A), (B), (C), (F) and (H), such Effect will be taken into account in determining whether a
Material Adverse Effect has occurred to the extent it disproportionately adversely affects such Party and its Subsidiaries, taken as a whole, compared to other companies and their respective Subsidiaries, taken as a whole, operating in the
industries in which such Party and its Subsidiaries operate.
“Merger Consideration” means the Common Stock Merger Consideration and the Preferred Stock Merger Consideration.
“MSRB” means the Municipal Securities Rulemaking Board.
“NAIC” means the National Association of Insurance Commissioners.
“NYSE” means the New York Stock Exchange, Inc.
“Open Source Software” means Software that is licensed under a license approved by the Open Source Initiative, Free Software Foundation, the Open Source Foundation, or any similar license, including the GNU
General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the
Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL).
“
Ordinary Course” means, with respect to an action taken by any Person, that such action is generally consistent with the ordinary course of business and past practices of such
Person.
“Organizational Documents” means (i) with respect to any Person that is a corporation, its articles or certificate of incorporation, memorandum and articles of association, as applicable, and bylaws, or
comparable documents, (ii) with respect to any Person that is a partnership, its certificate of partnership and partnership agreement, or comparable documents, (iii) with respect to any Person that is a limited liability company, its
certificate of formation and limited liability company or operating agreement, or comparable documents, (iv) with respect to any Person that is a trust or other entity, its declaration or agreement of trust or other constituent document or
comparable documents and (v) with respect to any other Person that is not an individual, its comparable organizational documents.
“Owned Real Property” with respect to Equitable or Corebridge, means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and
interests appurtenant thereto, owned by Equitable and any of its Subsidiaries or Corebridge and any of its Subsidiaries, as applicable, excluding any of the foregoing held as an Investment Asset by an Insurance Subsidiary in accordance with
applicable Investment Guidelines.
“Permitted Accounting Practices” means, with respect to each Insurance Subsidiary, all accounting practices that depart from the National Association of Insurance Commissioners’ Accounting Practices and
Procedures Manual, as adopted by the Domiciliary Department of Insurance applicable to such Insurance Subsidiary.
“
Permitted Encumbrances” means (i) mechanics’, materialmen’s, carriers’, workmen’s, repairmen’s, vendors’, operators’ or other like Encumbrances, if any, arising or incurred in the Ordinary Course that (A)
relate to obligations as to which there is no default on the part of Equitable, Corebridge or any of their Subsidiaries, as applicable, and that do not materially detract from the value of or materially interfere with the use of any of the
assets of the Party and its Subsidiaries as presently conducted or (B) are being contested in good faith through appropriate Proceedings and for which adequate reserves have been established in accordance with GAAP; (ii) Encumbrances arising
under original purchase price conditional sales contracts and equipment leases with third parties entered into in the Ordinary Course; (iii) Rights-of-Way, covenants, conditions, restrictions and other similar matters of record affecting title
and other title defects of record or Encumbrances (other than those constituting Encumbrances for the payment of Indebtedness), if any, that do not or would not, individually or in the aggregate, impair in any material respect the value of or
continued use or occupancy of the assets of the Party and its Subsidiaries, taken as a whole or that would otherwise be disclosed on or uncovered by a title commitment, title policy, title report or survey; (iv) Encumbrances for Taxes or other
governmental charges that are not yet due or payable or, if due and payable, may thereafter be paid without penalty or that are being contested in good faith through appropriate Proceedings and for which adequate reserves have been established
in accordance with GAAP; (v) Encumbrances supporting surety bonds, performance bonds and similar obligations issued in connection with the businesses of the Party and its Subsidiaries; (vi) Encumbrances not created by the Party or its
Subsidiaries that affect the underlying fee interest of an Equitable Leased Real Property (in the case of Equitable) or Corebridge Leased Real Property (in the case of Corebridge); (vii) Encumbrances that are disclosed on the most recent
consolidated balance sheet of the Party included in the Reports or notes thereto or securing liabilities reflected on such balance sheet; (viii) Encumbrances arising under or pursuant to the Organizational Documents of the Party or any of its
Subsidiaries; (ix) grants to others of Rights-of-Way, surface leases or crossing rights and amendments, modifications, and releases of Rights-of-Way, surface leases or crossing rights in the Ordinary Course that are of public record which do
not materially interfere with the value of or continued use and operation of any of the assets of the Party and its Subsidiaries as presently conducted; (x) with respect to Rights-of-Way, restrictions on the exercise of any of the rights under
a granting instrument that are set forth therein or in another executed agreement, that is of public record or to which the Party or any of its Subsidiaries otherwise has access, between the parties thereto; (xi) as to Equitable or Corebridge,
Encumbrances resulting from any facts or circumstances relating to the other Party or any of its Affiliates; (xii) Encumbrances that do not and would not reasonably be expected to materially impair, in the case of Equitable, the continued use
of an Equitable Owned Real Property or an Equitable Leased Real Property as presently operated, and in the case of Corebridge, the continued use of a Corebridge Owned Real Property or a Corebridge Leased Real Property as presently operated;
(xiii) with respect to Equitable Leased Real Property, Encumbrances arising from any Equitable Leased Real Property and with respect to the Corebridge Leased Real Property, Encumbrances arising from any Corebridge Leased Real Property; (xiv)
non-exclusive licenses to Intellectual Property granted in the Ordinary Course; and (xv) specified Encumbrances described in
Section 10.7(a)(iii) of such Party’s Disclosure Letter.
“Person” means an individual, corporation (including not-for-profit), Governmental Entity, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization,
unincorporated organization, other entity of any kind or nature or group (as defined in Section 13(d)(3) of the Exchange Act).
“Personal Data” means any information or data in any media that, alone or together with other information held by a Party and its Subsidiaries, (i) allows the identification of a natural person, or any
information associated with an identifiable natural person or (ii) constitutes “personal information,” “personal data,” “personally identifiable information,” or any other equivalent term as defined under applicable Law relating to the
collection, storage, sharing, data protection, data security, privacy, use, transfer and any other processing of information.
“Preferred Stock” means Equitable Preferred Stock and Corebridge Preferred Stock.
“Private Fund” means each vehicle for collective investment (in whatever form of organization, including the form of a corporation, company, limited liability company, partnership, association, trust or
other entity, and including each separate portfolio or series of any of the foregoing) (i) that is not registered or required to be registered with the SEC as an investment company under the Investment Company Act, and (ii) for which any Party
or one or more of its Subsidiaries, acts as the sponsor, general partner, managing member, trustee, investment manager, investment advisor, sub-advisor, or in a similar capacity; provided that solely for purposes of Section 5.20,
the term “Private Fund” shall not include any entity with which any Party or one or more of its Subsidiaries have solely a Sub-Advisory Relationship and do not otherwise act as sponsor, general partner, managing member, trustee, investment
manager or investment advisor to such Private Fund.
“Proceeding” means any action, cause of action, claim, investigation, demand, litigation, suit, grievance, citation, summons, subpoena, inquiry, audit, hearing, originating application to a tribunal,
arbitration or other similar proceeding of any nature, civil, criminal, regulatory, administrative or otherwise, whether in equity or at law, in contract, in tort or otherwise.
“Public Fund” means each vehicle for collective investment (in whatever form of organization, including the form of a corporation, company, limited liability company, partnership, association, trust or other
entity, and including each separate portfolio or series of any of the foregoing) (i) that is registered or required to be registered with the SEC as an investment company under the Investment Company Act (including any business development
company regulated as such under the Investment Company Act), and (ii) for which any Party or one or more of its Subsidiaries acts as the sponsor, general partner, managing member, trustee, investment manager, investment advisor, sub-advisor, or
in a similar capacity; provided that the term “Public Fund” shall not include any entity with which any Party or one or more of its Subsidiaries have solely a Sub-Advisory Relationship and do not otherwise act as sponsor, general
partner, managing member, trustee, investment manager or investment advisor to such Public Fund (such Funds, the “Sub-Advised Funds”).
“Public Fund Board” means the board of directors or trustees (or Persons performing similar functions) of a Public Fund.
“Public Fund Board Approval Items” means, with respect to a Public Fund, the requisite approval of the applicable Public Fund Board (except with respect to any Sub-Advised Funds, in which case the items for
approval are set out in “Sub-Advised Fund Board Approval Items”):
|
(a) |
in accordance with Section 15(a) and 15(c) of the Investment Company Act of a New Investment Advisory Agreement with Delaware Management Company, Inc., to be effective as of the Closing Date (“Public Fund IAA Approval”); provided
that the term “Public Fund IAA Approval” shall not include an Interim Public Fund IAA Approval; and
|
|
(b) |
of new subadvisory agreements with such Public Fund’s existing external subadvisers (except if not required under a manager-of-managers exemptive order granted under the Investment Company Act by the SEC).
|
“Public Fund IAA Approval” has the meaning set forth in the definition of “Public Fund Board Approval Items.”
“Public Fund SEC Documents” means the forms, statements, reports and documents required to be filed by any Public Fund with, or required to be furnished by any Public Fund to, the SEC pursuant to the
Investment Company Act, the Securities Act, the Exchange Act or other applicable Law (including any exhibits or amendments thereto).
“Public Fund Shareholder Approval Items” means, with respect to a Public Fund, the requisite approval by the applicable Public Fund shareholders (i) of the Public Fund IAA Approval; and (ii) of new
subadvisory agreements with such Public Fund’s existing external subadvisers (except if not required under a manager-of-managers exemptive order granted under the Investment Company Act by the SEC).
“Real Property” means, collectively, the Owned Real Property and the Leased Real Property.
“Registered Intellectual Property” means all Intellectual Property owned or purported to be owned by, as applicable, Equitable or any of its Subsidiaries or Corebridge or any of its Subsidiaries, in each
case, that is registered, issued or filed under the authority of, with or by any Governmental Entity or Internet domain name registrar in any jurisdiction, including pending applications for any of the foregoing.
“Rights-of-Way” means easements, licenses, rights-of-way, permits, servitudes, leasehold estates, instruments creating an interest in real property, and other similar real estate interests.
“SAP” means, as to any Insurance Subsidiary, the statutory accounting practices prescribed by the applicable Domiciliary Department of Insurance as in effect at the relevant time.
“
Significant Subsidiary” has the meaning ascribed to such term in Rule
1.02(w) of Regulation S-X promulgated pursuant to the Exchange Act.
“SMA” means any Client established as a separate managed account.
“Software” means all computer software and computer programs (including software implementations of algorithms, models and methodologies), including all source code or object code versions thereof and
related documentation (including developer notes).
“Stockholders Meeting” means, with respect to Corebridge, the Corebridge Stockholders Meeting, and with respect to Equitable, the Equitable Stockholder Meeting.
“Sub-Advised Fund Board” means the board of directors or trustees (or Persons performing similar functions) of a Sub-Advised Fund.
“Sub-Advised Fund Board Approval Items” means, with respect to a Sub-Advised Fund, the requisite approval of the applicable Sub-Advised Fund Board of a new sub-advisory agreement with the applicable
Investment Adviser Subsidiary.
“Sub-Advised Fund Shareholder Approval Items” means, with respect to a Sub-Advised Fund, requisite approval by the applicable Sub-Advised Fund shareholders of new sub-advisory agreements with the applicable
Investment Adviser Subsidiary (except if not required under a manager-of-managers exemptive order granted under the Investment Company Act by the SEC).
“Sub-Advised Funds” has the meaning set forth in the definition of “Public Fund.”
“Sub-Advisory Relationship” means any Contract pursuant to which any Party or one or more of its Subsidiaries provides sub-advisory services to any investment fund or other collective investment vehicle
(including any general or limited partnership, trust, or limited liability company and whether or not dedicated to a single investor) or any account whose sponsor, principal advisor, general partner, managing member or manager is any Person who
is not a Party or any of their Subsidiaries.
“
Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power
to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by such Person or by one or more of its Subsidiaries; for the avoidance of doubt, AllianceBernstein and
its Subsidiaries are Subsidiaries of Equitable.
“Superior Proposal” means an unsolicited, bona fide written Acquisition Proposal (except that the references in the definition thereof to “ten percent (10%) or
more” shall be deemed to be references to “a majority”) made by a third Person (or group of Persons) on or after the date of this Agreement that the Equitable Board or the Corebridge Board, as applicable, has determined in good faith, after
consultation with its financial advisor and its outside legal counsel (i) if consummated, would result in a transaction more favorable to Equitable’s stockholders or Corebridge’s stockholders, as applicable, than the Transactions (after taking
into account any revisions to the terms of this Agreement proposed by Equitable or Corebridge, as applicable, pursuant to Section 7.2(d)(ii) and the time likely to be required to
consummate such Acquisition Proposal), (ii) is reasonably likely to be consummated on the terms proposed (including being reasonably likely to receive all required governmental approvals), taking into account any legal, financial, regulatory
and stockholder approval requirements, the sources, availability and terms of any financing, financing market conditions and the existence of a financing contingency, the likelihood of termination, the timing of closing, any termination fees, expense reimbursement provisions, conditions to closing, the identity of the Person or Persons making the proposal and any other aspects considered relevant by the Equitable Board or the Corebridge
Board, as applicable, and (iii) for which, if applicable, financing is fully committed or reasonably determined to be available by the Equitable Board or the Corebridge Board, as applicable.
“Tax” means all federal, state, local and foreign income, windfall or other profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, transfer, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise, production, value added, and other taxes, duties or assessments, in each case in the nature of a tax, together with all interest, penalties and additions with respect
thereto.
“Tax Matters Agreement” means that certain tax matters agreement by and among American International Group, Inc. and Corebridge dated as of September 14, 2022.
“Tax Return” means all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to any Tax authority relating to Taxes.
“Treasury Regulations” means Part 1 of Title 26, Chapter I, Subchapter A of the Code of Federal Regulations.
“U.S. Government” means the government of the United States of America, its agencies and instrumentalities.
“Willful Breach” means a material breach of this Agreement by a Party that is the consequence of a deliberate act or a deliberate omission by such Party with the actual knowledge that the taking of such act
or failure to take such act would, or would reasonably be expected to, cause such material breach of this Agreement.
(b) The following terms are defined elsewhere in this Agreement, as indicated below:
|
Term
|
Section
|
|
Advertisement
|
5.26(c)
|
|
Affirmative Consent Client
|
7.19(a)
|
|
Agreement
|
Preamble
|
|
AllianceBernstein GP
|
4.1(h)
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|
Alternative Acquisition Agreement
|
7.2(d)(i)(D)
|
|
Anti-Corruption Laws
|
5.11(e)
|
|
Applicable Date
|
Article V
|
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Approvals
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5.4(a)
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Bankruptcy and Equity Exception
|
5.3
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Blocked Person
|
5.11(h)
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|
Board Recommendation Notice
|
7.2(d)(ii)
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|
Book-Entry Shares
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2.4(b)
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|
Capitalization Date
|
6.1
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CEA
|
5.28
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|
Certificates
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2.4(b)
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Certificates of Merger
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1.3
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|
CFTC
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5.28
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|
Change of Recommendation
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7.2(d)(i)(E)
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Chosen Court
|
10.4(b)
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|
Closing
|
1.2
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|
Closing Date
|
1.2
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|
Code
|
Recitals
|
|
Common Book-Entry Shares
|
2.4(a)
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|
Common Stock Certificates
|
2.4(a)
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|
Common Stock Merger Consideration
|
2.2(a)
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|
Company Owned Software
|
5.15(g)
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|
Comprehensively Sanctioned Jurisdictions
|
5.11(d)
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|
Confidentiality Agreement
|
10.8
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|
Contaminants
|
5.15(h)
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|
Continuing Employees
|
7.11(a)
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|
Converted Corebridge DSU Award
|
2.8(b)(iv)
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|
Converted Corebridge ESPP Option
|
2.8(b)(vi)
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|
Converted Corebridge Option
|
2.8(b)(i)
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Converted Corebridge PSU Award
|
2.8(b)(iii)
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|
Converted Corebridge RSU Award
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2.8(b)(ii)
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|
Converted Equitable ESPP Option
|
2.8(a)(v)(B)
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|
Converted Equitable Option
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2.8(a)(i)
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|
Converted Equitable Performance Share
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2.8(a)(iii)
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|
Converted Equitable RSU Award
|
2.8(a)(ii)
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|
Corebridge
|
Preamble
|
|
Corebridge Board
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Recitals
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|
Corebridge Certificate of Merger
|
1.3
|
|
Corebridge Common Book-Entry Share
|
2.4(a)
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|
Corebridge Common Stock Certificate
|
2.4(a)
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|
Corebridge Common Stock Merger Consideration
|
2.2(a)
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|
Corebridge Continuing Employees
|
7.11(a)
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|
Corebridge Designees
|
4.1(b)
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|
Corebridge Disclosure Letter
|
Article V
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|
Corebridge DSU
|
2.8(b)(iv)
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|
Corebridge Effective Time
|
1.3
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Corebridge Eligible Common Shares
|
2.2(a)
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|
Corebridge Eligible Preferred Shares
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2.2(c)
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|
Corebridge Equity Awards
|
2.8(d)
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|
Corebridge ESPP Option
|
2.8(b)(vi)
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|
Corebridge Exchange Ratio
|
2.2(a)
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|
Corebridge Merger
|
Recitals
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|
Corebridge Merger Sub
|
Preamble
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|
Corebridge Option
|
2.8(b)(i)
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|
Corebridge Preferred Book-Entry Share
|
2.4(b)
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|
Corebridge Preferred Stock Certificate
|
2.4(b)
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Corebridge Preferred Stock Merger Consideration
|
2.2(c)
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|
Corebridge PSU
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2.8(b)(iii)
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|
Corebridge Recommendation
|
6.7
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|
Corebridge RSU
|
2.8(b)(ii)
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|
Corebridge Surviving Corporation
|
Recitals
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|
Corebridge Surviving Corporation Charter
|
4.3(a)
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|
Corebridge Tax Opinion
|
8.3(d)
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|
Corebridge Termination Fee
|
9.5(b)(iii)
|
|
Current Corebridge CEO
|
4.1(b)
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|
Current Corebridge Chair
|
4.1(d)
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Current Equitable CEO
|
4.1(b)
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|
Debt Financing
|
7.7(a)(i)
|
|
DGCL
|
Recitals
|
|
Disclosure Letter
|
Article V
|
|
Effective Time
|
1.3
|
|
Eligible Common Shares
|
2.2(a)
|
|
Eligible Preferred Shares
|
2.2(c)
|
|
Encumber
|
6.1
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|
Encumbrance
|
6.1
|
|
Equitable
|
Preamble
|
|
Equitable Board
|
Recitals
|
|
Equitable Certificate of Merger
|
1.3
|
|
Equitable Common Book-Entry Share
|
2.3(a)
|
|
Equitable Common Stock Certificate
|
2.3(a)
|
|
Equitable Common Stock Merger Consideration
|
2.1(a)
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|
Equitable Continuing Employees
|
7.11(a)
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|
Equitable Designees
|
4.1(b)
|
|
Equitable Disclosure Letter
|
Article V
|
|
Equitable Effective Time
|
1.3
|
|
Equitable Eligible Common Shares
|
2.1(a)
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|
Equitable Eligible Preferred Shares
|
2.1(d)
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|
Equitable Eligible Series A Preferred Shares
|
2.1(c)
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|
Equitable Eligible Series C Preferred Shares
|
2.1(d)
|
|
Equitable Equity Awards
|
2.8(c)
|
|
Equitable ESPP Exercise Date
|
2.8(a)(v)(A)
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|
Equitable ESPP Option
|
2.8(a)(v)(B)
|
|
Equitable Exchange Ratio
|
2.1(a)
|
|
Equitable Fund Schedule
|
6.4
|
|
Equitable Merger
|
Recitals
|
|
Equitable Merger Sub
|
Preamble
|
|
Equitable Option
|
2.8(a)(i)
|
|
Equitable Performance Share
|
2.8(a)(iii)
|
|
Equitable Preferred Book-Entry Share
|
2.3(b)
|
|
Equitable Preferred Stock
|
6.1
|
|
Equitable Preferred Stock Certificate
|
2.3(b)
|
|
Equitable Preferred Stock Merger Consideration
|
2.1(d)
|
|
Equitable Recommendation
|
6.2
|
|
Equitable RSU
|
2.8(a)(ii)
|
|
Equitable Series A Preferred Stock Merger Consideration
|
2.1(c)
|
|
Equitable Series C Preferred Stock Merger Consideration
|
2.1(d)
|
|
Equitable Stock
|
6.1
|
|
Equitable Surviving Corporation
|
Recitals
|
|
Equitable Surviving Corporation Charter
|
4.2(a)
|
|
Equitable Tax Opinion
|
8.2(d)
|
|
Equitable Termination Fee
|
9.5(c)(iii)
|
|
Exchange Agent
|
3.1
|
|
Exchange Fund
|
3.1
|
|
Exchange Ratios
|
2.2(a)
|
|
Form A
|
5.4(a)
|
|
GAAP
|
5.5(d)
|
|
Governmental Antitrust Entity
|
7.5(d)(i)
|
|
HoldCo
|
Preamble
|
|
HoldCo Board
|
4.1(b)
|
|
HoldCo Bylaws
|
4.1(a)
|
|
HoldCo CEO
|
4.1(c)
|
|
HoldCo Charter
|
4.1(a)
|
|
HoldCo Common Stock
|
2.1(a)
|
|
HoldCo Executive Chair
|
4.1(c)
|
|
HoldCo Lead Independent Director
|
4.1(d)
|
|
IMA
|
5.22(c)
|
|
Indemnified Parties
|
7.14(a)
|
|
Insurance Approvals
|
5.4(a)
|
|
Insurance Licenses
|
5.23(c)
|
|
Intended Tax Treatment
|
2.9
|
|
Investment Guidelines
|
5.22(a)
|
|
IRS
|
5.9(d)
|
|
Letter of Transmittal
|
3.2(a)
|
|
Material Contract
|
5.16(a)(xi)
|
|
Mergers
|
Recitals
|
|
Negative Consent Notice
|
7.19(a)
|
|
NFA
|
5.28
|
|
Non-DTC Book-Entry Share
|
3.2(b)
|
|
Non-Fund Client Consents
|
7.19(a)
|
|
Non-U.S. Benefit Plans
|
5.9(k)
|
|
OFAC
|
5.11(d)
|
|
Original Date
|
7.4(c)
|
|
Outside Counsel Only Material
|
7.8(b)
|
|
Outside Date
|
9.2(a)
|
|
Parties
|
Preamble
|
|
Party
|
Preamble
|
|
Payoff Letter
|
7.7(a)(iii)
|
|
Preferred Stock Merger Consideration
|
2.2(c)
|
|
Privacy Requirements
|
5.15(k)
|
|
Producers
|
5.23(e)
|
|
Proprietary Code
|
5.15(g)
|
|
Proxy/Prospectus
|
7.3(a)
|
|
Public Fund Board Approval
|
7.19(c)(i)
|
|
Public Fund Shareholder Approval
|
7.19(c)(i)
|
|
Registration Statement
|
7.3(a)
|
|
Registration Statement Clearance Date
|
7.3(a)
|
|
Regulatory Remedy
|
7.5(d)(ii)
|
|
Reinsurance Agreement
|
5.21(a)
|
|
Relevant Legal Restraint
|
8.1(e)
|
|
Reports
|
5.5(a)
|
|
Representatives
|
7.2(a)
|
|
Requisite Corebridge Vote
|
5.3
|
|
Requisite Equitable Vote
|
5.3
|
|
Requisite Regulatory Approvals
|
7.5(b)
|
|
SEC
|
2.8(e)
|
|
Securities Act
|
2.8(e)
|
|
Security Breach
|
5.15(j)
|
|
Series 1 HoldCo Preferred Stock
|
2.1(d)
|
|
Series 1-A HoldCo Preferred Stock
|
2.1(c)
|
|
Series 1-C HoldCo Preferred Stock
|
2.1(d)
|
|
Series 2 HoldCo Preferred Stock
|
2.2(c)
|
|
Specially Designated National
|
5.11(h)
|
|
Specified Debt Agreements
|
7.7(a)(ii)
|
|
Specified Debt Amendment
|
7.7(a)(ii)
|
|
Standing Committee
|
4.1(f)
|
|
Statutory Statements
|
5.6(b)
|
|
Surviving Corporations
|
Recitals
|
|
Tail Insurance
|
7.14(b)
|
|
Tail Period
|
7.14(b)
|
|
Takeover Statute
|
5.12
|
|
Tax Counsel
|
7.12(b)
|
|
Transactions
|
Recitals
|
10.8 Entire
Agreement. This Agreement (including any exhibits hereto), the Equitable Disclosure Letter, the Corebridge Disclosure Letter and the Confidentiality Agreement, dated February 23, 2026, between Equitable and Corebridge (together with that
certain Clean Team Confidentiality Agreement, dated February 23, 2026, between Equitable and Corebridge, the “
Confidentiality Agreement”) constitute the entire agreement among the Parties with
respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, negotiations, understandings and representations and warranties, whether oral or written, with respect to such matters, except for the
Confidentiality Agreement, which shall remain in full force and effect until the Closing (except as amended by the last sentence of
Section 7.2(g)).
10.9 Third-Party Beneficiaries. Except for (a) after the applicable
Effective Time, the rights of Equitable’s and Corebridge’s respective stockholders to receive the applicable Merger Consideration and payments pursuant to
Article II and
Article III, and (b) after the applicable Effective Time,
the rights of Indemnified Parties set forth in
Section 7.14, each Party agrees that (i) their respective representations, warranties, covenants and agreements set forth herein are solely for the benefit of the other Parties, in
accordance with and subject to the terms of this Agreement, and (ii) this Agreement is not intended to, and does not, confer upon any Person other than the Parties, any rights or remedies hereunder, including the right to rely upon the
representations and warranties set forth herein.
10.10 Fulfillment of Obligations. Whenever this Agreement requires a
Subsidiary of Equitable to take any action, such requirement shall be deemed to include an undertaking on the part of Equitable to cause such Subsidiary to take such action and, after the Equitable Effective Time, on the part of HoldCo to cause
such Subsidiary to take such action. Whenever this Agreement requires a Subsidiary of Corebridge to take any action, such requirement shall be deemed to include an undertaking on the part of Corebridge to cause such Subsidiary to take such
action and, after the Corebridge Effective Time, on the part of HoldCo to cause such Subsidiary to take such action. Any obligation of one Party to another Party under this Agreement, which obligation is performed, satisfied or fulfilled by an
Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by such Party.
10.11 Non-Parties. Unless expressly agreed to otherwise by the Parties
in writing, this Agreement may only be enforced against, and any Proceeding in connection with, arising out of or otherwise resulting from this Agreement, any instrument or other document delivered pursuant to this Agreement or the Transactions
may only be brought against a Party and then only with respect to the specific obligations set forth herein with respect to such Party. No past, present or future director, Employee (including any officer), incorporator, manager, member,
partner, stockholder, other equity holder or Persons in a similar capacity, controlling person, Affiliate or other Representative of any Party or of any Affiliate of any Party, or any of their respective successors, Representatives and
permitted assigns, shall have any liability or other obligation for any obligation of any Party under this Agreement or for any Proceeding in connection with, arising out of or otherwise resulting from this Agreement, any instrument or other
document delivered pursuant to this Agreement or the Transactions.
10.12 Severability. The provisions of this Agreement shall be deemed
severable and the illegality, invalidity or unenforceability of any provision shall not affect the legality, validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or the application of such
provision to any Person or any circumstance, is illegal, invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, insofar as may be legal, valid and enforceable, the intent and
purpose of such illegal, invalid or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such illegality, invalidity or
unenforceability, nor shall such illegality, invalidity or unenforceability affect the legality, validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.
10.13 Interpretation; Construction.
(a) The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise
affect any of the provisions hereof. All article, section, subsection, schedule, annex and exhibit references used in this Agreement are to articles, sections, subsections, schedules, annexes and exhibits to this Agreement unless otherwise
specified. The exhibits, schedules and annexes
attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes.
(b) If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as
a verb). Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa. The words “includes” or “including” shall mean “including without
limitation,” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear. Any reference to a Law shall
include any rules and regulations promulgated thereunder and shall mean such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time, except that, for purposes of any
representations and warranties in this Agreement that are made as a specific date, references to any specific Law or License will be deemed to refer to such Law (and all rules and regulations promulgated thereunder) or License as of such date.
(c) All references to any Contract, other agreement, document or instrument (excluding this Agreement) mean such Contract, other agreement, document or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof and, unless otherwise specified therein, include all schedules, annexes, addendums, exhibits and any other documents attached thereto or incorporated therein by
reference.
(d) Currency amounts referenced herein are in U.S. Dollars.
(e) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Whenever any
action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day.
(f) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP and SAP.
(g) The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
(h) References to any information or document being “made available,” “provided” or “furnished” (other than to the SEC) and words of similar import
shall include such information or document having been posted to the online data room referred to as (x) “APEX” hosted on behalf of Corebridge by SmartRoom and (y) “Project Apex” hosted on behalf of Equitable by DFSVenue, in each case, at least
twenty-four (24) hours prior to the execution and delivery of this Agreement by the Parties.
10.14 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors, legal representatives and permitted assigns. No Party may assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part, by operation
of Law or otherwise, directly or indirectly, without the prior written consent of the other Parties, except that HoldCo may cause Equitable Merger Sub and Corebridge Merger Sub, as applicable, to assign any and all of its rights under this
Agreement, by written notice to Equitable and Corebridge, as applicable, to another wholly owned direct or indirect Subsidiary of HoldCo with substantially identical ownership, capitalization and Organizational Documents to be a Party in lieu
of Equitable Merger Sub and Corebridge Merger Sub, as applicable, in which event all references to Equitable Merger Sub and Corebridge Merger Sub, as applicable in this Agreement shall be deemed references to such other Subsidiary, except that
all representations and warranties made in this Agreement with respect to Equitable Merger Sub and Corebridge Merger Sub as of the date of this Agreement shall be deemed representations and warranties made with respect to such other Subsidiary
as of the date of such designation;
provided that any such designation shall not prevent or materially impair or impede or delay the consummation of the Transactions or otherwise materially impair or impede the rights of the
stockholders of Equitable or Corebridge, as applicable, under this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above.
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EQUITABLE HOLDINGS, INC.
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By:
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/s/Mark Pearson
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Name:
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Mark Pearson
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Title:
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President and Chief Executive Officer
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COREBRIDGE FINANCIAL, INC. |
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By:
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/s/Marc Costantini
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Name:
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Marc Costantini
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Title:
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President and Chief Executive Officer
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MOUNTAIN HOLDING, INC.
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By
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/s/Polly Klane
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Name:
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Polly Klane
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Title:
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President
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MARCY HOLDING, INC.
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By
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/s/Polly Klane
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Name:
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Polly Klane
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Title:
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President
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PALISADE HOLDING, INC.
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By
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/s/Polly Klane
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Name:
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Polly Klane
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Title:
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President
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