EXHIBIT (a)(1)
AGREEMENT AND PLAN OF REORGANIZATION
dated as of August 20, 1999
by and among
ALLIANCE CAPITAL MANAGEMENT L.P.,
a Delaware limited partnership,
ALLIANCE CAPITAL MANAGEMENT L.P. II,
a Delaware limited partnership,
ALLIANCE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation
and
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES,
a New York stock life insurance corporation
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is dated
as of August 20, 1999 by and among Alliance Capital Management L.P., a
Delaware limited partnership ("Alliance Holding"), Alliance Capital Management
L.P. II, a Delaware limited partnership ("Alliance Capital"), Alliance Capital
Management Corporation, a Delaware corporation in its capacities as the sole
general partner of each of Alliance Holding and Alliance Capital ("ACMC"), and
The Equitable Life Assurance Society of the United States, a New York stock
life insurance corporation ("Equitable Life"). Capitalized terms have the
meanings specified in Article I.
WHEREAS, Alliance Holding is a limited partnership formed pursuant to
the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") with
Alliance Holding LP Units listed on the New York Stock Exchange;
WHEREAS, Alliance Capital is a private limited partnership recently
formed pursuant to the Delaware Act for the purpose of entering into this
Agreement and consummating the transactions contemplated hereby and continuing
the business of Alliance Holding following the Reorganization;
WHEREAS, the parties desire to effect a reorganization of Alliance
Holding, pursuant to which, among other things, Alliance Holding will (i)
transfer or assign all or substantially all of its assets to Alliance Capital
in exchange for the issuance by Alliance Capital to Alliance Holding of 100%
of the Alliance Capital LP Units and the Alliance Capital GP Interest and the
assumption by Alliance Capital of all or substantially all of the liabilities
of Alliance Holding and (ii) offer to exchange outstanding Alliance Holding LP
Units for Alliance Capital LP Units held by Alliance Holding immediately prior
to the Effective Time, on a one-for-one basis (the "Reorganization");
WHEREAS, in connection with the Reorganization, Alliance Holding,
Alliance Capital and Equitable Life have entered into an Indemnification and
Reimbursement Agreement, dated as of April 8, 1999, pursuant to which
Equitable Life has agreed to indemnify and reimburse, or cause to be
indemnified and reimbursed, Alliance Holding, Alliance Capital and certain of
their affiliates for certain costs and expenses associated with the
Reorganization, and an Exchange Agreement, dated as of April 8, 1999, pursuant
to which Equitable Life has agreed to exchange, and to cause its affiliates to
exchange, substantially all of the Alliance Holding LP Units held by them for
Alliance Capital LP Units (which Exchange Agreement shall be superceded by
this Agreement); and
WHEREAS, the parties desire to specify the steps to be taken in
connection with the Reorganization.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, intending to be legally bound, do hereby agree
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. Unless the context otherwise specifies or
requires, the terms defined in this Section 1.01 shall, for the purposes of
this Agreement, have the meanings herein specified. In the event of any
inconsistency between the meanings assigned to such terms in this Agreement,
the Alliance Holding Partnership Agreement and the Alliance Capital
Partnership Agreement, the meanings assigned to such terms in the Alliance
Holding Partnership Agreement and the Alliance Capital Partnership Agreement
shall control.
"ACMC" has the meaning specified in the Recitals.
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"Alliance Capital" has the meaning specified in the Recitals.
"Alliance Capital Certificate of Limited Partnership" has the meaning
specified in Section 2.04.
"Alliance Capital GP Interest" shall mean a partnership interest
representing a 1% economic interest in Alliance Capital.
"Alliance Capital LP Unit" shall mean a unit representing a
percentage interest in the aggregate partnership interests of the limited
partners of Alliance Capital equal to, at any time, one divided by the total
number of units of limited partner interests in Alliance Capital outstanding
at that time.
"Alliance Capital Partnership Agreement" shall mean the Agreement of
Limited Partnership of Alliance Capital Management L.P. II, dated as of July
7, 1999, as the same may be amended, supplemented or restated from time to
time.
"Alliance Holding" has the meaning specified in the Recitals.
"Alliance Holding GP Units" has the meaning specified in Section
2.01(a).
"Alliance Holding LP Unit" shall mean a unit representing an
assignment of a beneficial interest in a corresponding limited partner
interest in Alliance Holding.
"Alliance Holding Partnership Agreement" shall mean the Agreement of
Limited Partnership of Alliance Capital Management L.P., dated as of November
18, 1987, as the same may be amended, supplemented or restated from time to
time.
"Assumed Liabilities" has the meaning set forth in Section 2.01(d)(i).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banks in New York, New York are required to be closed for
regular banking business.
"Closing" and "Closing Date" have the meanings specified in Section
2.02.
"Consent" shall mean any consent, license, permit, waiver, approval,
authorization or other action of, by or with respect to, or registration,
declaration or filing with, any court, Governmental Authority or Person.
"Delaware Act" has the meaning specified in the Recitals.
"Effective Time" has the meaning specified in Section 2.02.
"Equitable Life" has the meaning specified in the Recitals.
"Equitable Life Exchange" has the meaning specified in Section 2.03.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" has the meaning specified in Section 2.01(e).
"Governmental Approval" shall mean any Consent of, with or to any
Governmental Authority, including the expiration of any waiting or other time
period required to pass before governmental consent or acquiescence may be
assumed or relied upon.
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"Governmental Authority" shall mean any court or governmental
authority, department, commission, board, bureau, agency or instrumentality,
domestic or foreign, any tribunal or arbitrators of competent jurisdiction and
any self-regulatory organization.
"Holdback Interests" has the meaning specified in Section 2.01(d)(ii).
"Investment Advisory Agreement" shall mean any agreement or
arrangement for the performance of investment management or advisory services
for clients by which the relevant partnership may be bound.
"Material Contract" shall mean any contract, agreement, note,
instrument, franchise, lease, license, commitment, arrangement or
understanding, written or oral, to which the relevant partnership is a party
or by which any of its properties is bound which is material to the business
or assets of such partnership, taken as a whole.
"Person" shall mean any individual, corporation, association,
partnership, joint venture, trust, estate or other entity or organization.
"Public Unitholders" shall mean the holders of Alliance Holding LP
Units excluding Equitable Life, its affiliates, other holders of more than 2%
of the currently outstanding Alliance Holding LP Units and Alliance Holding's
executive management.
"Registration Statement" has the meaning specified in Section 7.01(b).
"Reorganization" has the meaning specified in the Recitals.
"SEC" shall mean the Securities and Exchange Commission.
"Taxes" shall mean taxes, fees, levies, duties, tariffs, imposts and
governmental impositions or charges of any kind in the nature of (or similar
to) taxes, payable to any federal, state, provincial, local or foreign taxing
authority, including (without limitation) (i) income, franchise, profits,
gross receipts, ad valorem, net worth, value added, sales, use, service, real
or personal property, special assessments, capital stock, license, payroll,
withholding, employment, social security, workers' compensation, unemployment
compensation, utility, severance, production, excise, stamp, occupation,
premiums, windfall profits, transfer and gains taxes and (ii) interest,
penalties, additional taxes and additions to tax imposed with respect thereto.
"Transferred Assets" has the meaning specified in Section 2.01(d)(i).
"Securities Act" shall mean the Securities Act of 1933, as amended.
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ARTICLE 2
REORGANIZATION AND EXCHANGE
SECTION 2.01. Contribution of Assets, Etc. The parties hereby agree
to take, or cause to be taken, all actions necessary, proper or advisable to
consummate or make effective each of the following actions, each of which
shall be deemed to occur simultaneously at the Effective Time, subject to and
in accordance with the terms set forth in this Agreement:
(a) Conversion of Alliance Holding GP Interest into Units. The
general partner interest in Alliance Holding held by ACMC shall be converted
into a number of units ("Alliance Holding GP Units") determined in accordance
with the following formula:
Number of Alliance total number of Alliance Holding LP Units
Holding GP Units = outstanding immediately prior to the Effective Time
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(b) Partnership Agreements. The parties shall amend and restate the
Alliance Holding Partnership Agreement and the Alliance Capital Partnership
Agreement in substantially the forms attached hereto as Exhibit A and Exhibit
B, respectively.
(c) Amendment of Equitable Life Investment Advisory and Services
Agreements. Equitable Life and Alliance Holding shall cause each of (i) the
Investment Advisory and Management Agreement, dated as of July 22, 1993, by
and among Alliance Holding, Alliance Corporate Finance Group Incorporated, a
wholly owned subsidiary of Alliance Holding, and Equitable Life, as amended,
and (ii) the Accounting, Valuation, Reporting and Treasury Services Agreement,
dated as of July 22, 1993, by and between Alliance Holding and Equitable Life,
to be amended and restated effective as of January 1, 1999 in substantially
the forms attached hereto as Exhibit C and Exhibit D, respectively.
(d) Contribution of Assets.
(i) Assignment. Subject to clause (ii) below, Alliance Holding
will transfer, convey, assign and deliver to Alliance Capital all
right, title and interest of Alliance Holding in and to its properties,
assets and rights of every nature, kind and description, whether
tangible or intangible (including goodwill, cash and receivables),
whether real, personal or mixed, whether accrued, contingent or
otherwise and whether now existing or hereafter acquired prior to the
Effective Time (collectively, the "Transferred Assets"). In exchange
for the contribution of the Transferred Assets, Alliance Capital will
issue to Alliance Holding (A) such number of Alliance Capital LP
Units as shall equal the number of Alliance Holding LP Units
outstanding as of the Effective Time, and (B) the Alliance Capital GP
Interest. In addition, subject to clause (ii) below, Alliance Capital
will assume and agree to pay, honor and discharge all of Alliance
Holding's liabilities of every nature, kind and description, whether
tangible or intangible, whether accrued, contingent or otherwise and
whether now existing or hereafter incurred prior to the Effective
Time, other than liabilities for Taxes for periods ending on or prior
to the Effective Time (collectively, the "Assumed Liabilities").
(ii) Nonassignability. To the extent that any contract, agreement,
permit or other asset included in the Transferred Assets, or any
claim, right, benefit, liability or obligation arising thereunder or
resulting therefrom is not capable of being transferred, conveyed,
assigned or delivered without the Consent of the other party or
parties thereto, the issuer thereof or any third Person (including a
Governmental Authority), or if the transfer, conveyance, assignment
or delivery or attempted transfer, conveyance, assignment or delivery
thereof would constitute a breach thereof or a violation of any law,
decree, order, regulation or
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other governmental edict, then such contract, agreement, permit or
other asset, or such claim, right, benefit, liability or obligation
(collectively, the "Holdback Interests") shall not be transferred,
conveyed, assigned or delivered; provided, however, that ACMC may
determine at any time, in its sole discretion, that the transfer,
conveyance, assignment or delivery of certain Holdback Interests
shall be effected whether or not the applicable Consents have been
obtained or notwithstanding any impediments to transfer.
(iii) Parties To Use Reasonable Efforts. Subject to ACMC's right to
determine that Alliance Holding and Alliance Capital not seek any
Consent or resolve any impediments to transfer, Alliance Holding
shall use all reasonable efforts, and Alliance Capital shall
cooperate with Alliance Holding, to obtain all necessary Consents, or
to resolve any impediments to transfer referred to in Section
2.01(d)(ii) necessary to convey to Alliance Capital each such
Holdback Interest as soon as practicable.
(iv) If Consents Cannot Be Obtained. To the extent any applicable
Consent has not been obtained or an impediment to transfer has not
been resolved by Alliance Holding as of the Effective Time and ACMC
has not determined that the transfer, conveyance, assignment or
delivery of the relevant Holdback Interests should be effected
notwithstanding the absence of such Consent or the existence of such
impediments to transfer, Alliance Holding shall, during the remaining
term of each such Holdback Interest, (1) use all reasonable efforts
to obtain any applicable Consent or resolve any impediment to
transfer with respect to such Holdback Interest; (2) enter into any
reasonable and lawful arrangement designed to provide the benefits of
such Holdback Interest to Alliance Capital so long as Alliance
Capital reasonably cooperates with Alliance Holding in such
arrangement; and (3) enforce, at the request of Alliance Capital and
at the expense and for the account of Alliance Capital, any rights of
Alliance Holding arising from such Holdback Interest against such
issuer thereof or the other party or parties thereto (including the
right to elect to terminate any such Holdback Interest in accordance
with the terms thereof upon the advice of Alliance Capital). To the
extent Alliance Capital is provided the benefits under any such
Holdback Interest, Alliance Capital shall perform for the benefit of
the issuer thereof, or the other party or parties thereto, as the
case may be, the obligations of Alliance Holding thereunder.
(e) Exchange Offer. Alliance Holding shall commence (within the
meaning of Rule 13e-4 under the Exchange Act), as promptly as reasonably
practicable after the special meeting of unitholders of Alliance Holding at
which the Reorganization is approved, an offer to exchange (the "Exchange
Offer") Alliance Holding LP Units held by any holder other than Equitable Life
and its affiliates for an equal number of Alliance Capital LP Units held by
Alliance Holding upon the written request of such holder in such form as
Alliance Holding shall prescribe. However, Alliance Holding shall not be
obligated to accept Alliance Holding LP Units tendered that, if exchanged,
would cause Alliance Holding LP Units to be held by fewer than 1,200 Public
Unitholders or would cause there to be fewer than 40 million Alliance Holding
LP Units to be held by Public Unitholders immediately following the Exchange
Offer. In the event that the number of Alliance Holding LP Units tendered or
the number of unitholders tendering would, if such tenders were accepted,
reduce the number of Public Unitholders below 1,200 or the number of such
Alliance Holding LP Units held by Public Unitholders below 40 million,
Alliance Holding will reject a sufficient number of Alliance Holding LP Units
on a pro rata basis among all tendering unitholders (and Equitable Life and
its affiliates, as contemplated by Section 2.03) in order to avoid either such
event. Alliance Holding may extend the Exchange Offer for any period required
by any rule, regulation, interpretation or position of the SEC or the staff
thereof applicable to the Exchange Offer. Subject to the terms and conditions
of the Exchange Offer, Alliance Holding shall accept for exchange and exchange
for Alliance Capital LP Units, as promptly as practicable after the expiration
of the Exchange Offer, all Alliance Holding LP Units validly tendered and not
withdrawn. ACMC, as the initial general partner of Alliance Capital, hereby
consents to the transfers of Alliance Capital LP Units contemplated by the
Exchange Offer and acknowledges that the transferees thereof shall become
limited partners of Alliance Capital at and as of the time of such transfers.
At the Effective Time, Equitable Life will, or will cause one or more of its
affiliates to, contribute 100,000 Alliance Holding LP Units to ACMC.
(f) Employee Matters. All employees of Alliance Holding will become
employees of Alliance Capital and, as part of the Assumed Liabilities,
Alliance Capital will assume the liabilities of Alliance Holding with respect
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to both current and former employees. In addition, Alliance Capital will
assume sponsorship of the compensation and benefit plans maintained by
Alliance Holding, other than the 1997 Long Term Incentive Plan, 1993 Unit
Option Plan, Century Club Plan and Unit Bonus Plan, each of which will be
retained by Alliance Holding and amended to provide for the grant of awards to
employees of Alliance Capital.
(g) Name Change. Alliance Holding will change its name to "Alliance
Capital Management Holding L.P." and Alliance Capital will change its name to
"Alliance Capital Management L.P."
SECTION 2.02. Closing. The closing of the transactions contemplated
by Section 2.01 hereof (the "Closing") shall take place at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, at 10:00 a.m.
as soon as practicable, but in no event later than five Business Days,
following the satisfaction or waiver of all conditions set forth in Article 8
herein, or at such other place and time as the parties may agree (the "Closing
Date"), and shall be deemed effective for all purposes as of 5:00 p.m. on the
Closing Date (the "Effective Time").
SECTION 2.03. Exchange by Equitable Life and Affiliates. Immediately
after the Effective Time, Equitable Life and its affiliates who hold Alliance
Holding LP Units will exchange, subject to the same terms and conditions as
the Exchange Offer, including any pro rata reduction of Alliance Holding LP
Units accepted in the Exchange Offer, an aggregate number of Alliance Holding
LP Units for Alliance Capital LP Units held by Alliance Holding such that,
after giving effect to such exchange, the Exchange Offer and the other
transactions contemplated by this Agreement, Equitable Life and its
affiliates, as of the effective time of such exchange, would hold (but for the
effect of any pro rata reduction) an aggregate number of Alliance Holding LP
Units equal to at least one percent of the Alliance Holding LP Units then
outstanding, and ACMC will exchange all of its Alliance Holding GP Units for
the Alliance Capital GP Interest held by Alliance Holding (collectively, the
"Equitable Life Exchange"). In addition, pursuant to the right granted to it
under the Alliance Holding Partnership Agreement, as amended and restated in
accordance with Section 2.01(b), ACMC will exchange 100,000 Alliance Holding
LP Units held by it for an equal number of Alliance Holding GP Units.
SECTION 2.04. Partners of Alliance Capital; Consent to Transfers.
ACMC is the general partner of Alliance Capital and Alliance Holding is the
initial limited partner of Alliance Capital under and pursuant to the terms of
the Alliance Capital Partnership Agreement as in effect on the date hereof,
each having no current economic interest in Alliance Capital other than to the
extent of its contributed capital. ACMC, as general partner of Alliance
Capital, consents to the issuance to Alliance Holding of the Alliance Capital
LP Units and the Alliance Capital GP Interest at the Effective Time as herein
provided. Alliance Holding shall be deemed admitted as a limited partner of
Alliance Capital with respect to all such Alliance Capital LP Interests. ACMC
further consents to the transfers of Alliance Capital LP Units in connection
with the applicable exchange transactions provided for in Sections 2.01 and
2.03 and, as of the Effective Time (immediately after the Effective Time in
the case of Equitable Life and its affiliates), consents to the admission of
the transferees of Alliance Holding LP Units in such exchange transactions as
limited partners of Alliance Capital. Alliance Holding shall not be admitted
as a general or limited partner of Alliance Capital with respect to the
Alliance Capital GP Interest, but upon the effectiveness of the exchange by
ACMC of Alliance Holding GP Units for the Alliance Capital GP Interest
immediately after the Effective Time, ACMC shall be deemed to hold the
Alliance Capital GP Interest in its capacity as general partner of Alliance
Capital and such interest shall constitute a general partnership interest in
Alliance Capital.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ALLIANCE HOLDING
Alliance Holding represents and warrants to Alliance Capital, ACMC
and Equitable Life as follows:
SECTION 3.01. Organization; Authority. (a) Alliance Holding is a
limited partnership organized under the Delaware Act, validly existing and in
good standing under the laws of the State of Delaware. Alliance Holding has
the power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Alliance Holding and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action by the general partner of Alliance Holding and by
Alliance Holding. This Agreement constitutes the valid and legally binding
obligation of Alliance Holding, enforceable against Alliance Holding in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and to general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law.
(b) Alliance Holding has full power and authority and possesses all
material rights, authorizations and approvals, governmental or otherwise,
necessary to own, lease or otherwise hold its properties and assets and to
carry on its business as currently conducted. Alliance Holding is duly
qualified, licensed or registered to transact business and is in good standing
in each jurisdiction in which it owns or leases properties or in which the
failure to be so qualified would have a material adverse effect on its ability
to conduct business as currently conducted.
SECTION 3.02. Conflicts. Except as set forth in Schedule 3.02, to the
actual knowledge of Alliance Holding (based upon a reasonable inquiry) as of
the date hereof, the execution, delivery and performance by Alliance Holding
of this Agreement and the consummation of the transactions contemplated hereby
will not: (i) conflict with or result in a breach of any provision of the
Alliance Holding Partnership Agreement, (ii) conflict with or result in a
breach of or default under any provision of any contract, agreement or
investment of any kind to which Alliance Holding is a party or by which
Alliance Holding or any of its assets or properties, including the Transferred
Assets, is bound, except as would not have a material adverse effect on
Alliance Holding's business or the Transferred Assets, taken as a whole, (iii)
give rise to any right of termination, cancellation or acceleration of any
obligations or loss of any benefit affecting, or resulting in the imposition
of any liens on, the Transferred Assets which would have a material adverse
effect on Alliance Holding's business or the Transferred Assets, taken as a
whole, or (iv) result in any conflict with applicable law, except as would not
have a material adverse effect on its ability to conduct business as currently
conducted.
SECTION 3.03. Ownership of Assets. Alliance Holding has good title
to the Transferred Assets.
SECTION 3.04. Consents; Governmental Approvals. Except as disclosed
in Schedule 3.04 and for Consents in respect of contracts which are not
Material Contracts, to the actual knowledge of Alliance Holding (based upon a
reasonable inquiry) as of the date hereof, no Consent or Governmental Approval
is required to be obtained by Alliance Holding in connection with (i) the
execution and delivery by Alliance Holding of this Agreement, (ii) the
performance of its obligations hereunder and (iii) the consummation of the
transactions contemplated hereby.
SECTION 3.05. Brokers. Alliance Holding has not incurred any
liability for any fee or commission to any broker, finder, investment banker
or other intermediary in connection with the transactions contemplated by this
Agreement, other than in connection with the retention of Goldman, Sachs & Co.
as financial advisor to Alliance Holding.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ALLIANCE CAPITAL
Alliance Capital represents and warrants to Alliance Holding, ACMC
and Equitable Life as follows:
SECTION 4.01. Organization; Authority. (a) Alliance Capital is a
limited partnership organized under the Delaware Act, validly existing and in
good standing under the laws of the State of Delaware. Alliance Capital has
the power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all requisite
action by the general partner of Alliance Capital and by Alliance Capital.
This Agreement constitutes the valid and legally binding obligation of
Alliance Capital, enforceable against Alliance Capital in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and to
general principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(b) Alliance Capital has full power and authority and possesses all
rights, licenses, authorizations and approvals, governmental or otherwise,
necessary to entitle it to own, lease or otherwise hold its properties and
assets, and to carry on its business as currently conducted. Alliance Capital
is duly qualified, licensed or registered to transact business and is in good
standing in each jurisdiction in which it owns or leases properties or in
which the failure to be so qualified would have a material adverse effect on
its ability to conduct business as currently conducted.
SECTION 4.02. Conflicts. The execution and delivery by Alliance
Capital of this Agreement and the consummation of the transactions
contemplated hereby will not: (i) conflict with or result in any breach of any
provision of the Alliance Capital Partnership Agreement or (ii) result in any
conflict with applicable law, except as would not have a material adverse
effect on its ability to conduct business as currently conducted.
SECTION 4.03. Consents; Governmental Approvals. No Consent or
Governmental Approval is required to be obtained by Alliance Capital in
connection with (i) the execution and delivery by Alliance Capital of this
Agreement, (ii) the performance of its obligations hereunder and (iii) the
consummation of the transactions contemplated hereby, except as would not have
a material adverse effect on its ability to conduct business as currently
conducted.
SECTION 4.04. Brokers. Alliance Capital has not incurred any
liability for any fee or commission to any broker, finder, investment banker
or other intermediary in connection with the transactions contemplated by this
Agreement.
SECTION 4.05. Alliance Capital Interests. The Alliance Capital LP
Units and the Alliance Capital GP Interest to be issued to Alliance Holding at
the Closing have been duly authorized and, when issued to Alliance Holding
pursuant to this Agreement, will be validly issued. The issuance and delivery
of such Alliance Capital LP Units and the Alliance Capital GP Interest to
Alliance Holding will not conflict with or breach any term or provision of or
constitute a default under the Alliance Capital Partnership Agreement or any
applicable law, rule, regulation, judgment, order or decree of any
Governmental Authority having jurisdiction over Alliance Capital. No Consent,
Governmental Approval or other authorization is required for the valid
authorization, issuance and delivery of such Alliance Capital LP Units or
Alliance Capital GP Interest to Alliance Holding, except for such Consents,
Governmental Approvals or authorizations as shall have been obtained prior to
the Closing.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF EQUITABLE LIFE
Equitable Life represents and warrants to Alliance Holding, Alliance
Capital and ACMC as follows:
SECTION 5.01. Organization; Authority. Equitable Life is duly
organized, validly existing and in good standing under the laws of the state
of its organization. Equitable Life has the power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all requisite action by Equitable Life. This Agreement
constitutes the valid and legally binding obligation of Equitable Life,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors of insurance companies and creditors' rights
generally and to general principles of equity, regardless or whether
enforcement is sought in a proceeding in equity or at law.
SECTION 5.02. Conflicts. The execution and delivery by Equitable Life
of this Agreement and the consummation of the transactions contemplated hereby
will not: (i) conflict with or result in any breach of any provision of the
certificate of incorporation and bylaws (or comparable governing documents) of
Equitable Life or (ii) result in any conflict with applicable law, except as
would not have a material adverse effect on its ability to conduct business as
currently conducted.
SECTION 5.03. Consents; Governmental Approvals. No Consent or
Governmental Approval is required to be obtained by Equitable Life in
connection with (i) the execution and delivery by it of this Agreement, (ii)
the performance of its obligations hereunder and (iii) the consummation of the
transactions contemplated hereby, except as would not have a material adverse
effect on its ability to conduct business as currently conducted.
SECTION 5.04. Brokers. Equitable Life has not incurred any liability
for any fee or commission to any broker, finder, investment banker or other
intermediary in connection with the transactions contemplated by this
Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF ACMC
ACMC represents and warrants to Equitable Life, Alliance Holding and
Alliance Capital as follows:
SECTION 6.01. Organization; Authority. ACMC is duly organized,
validly existing and in good standing under the laws of the state of its
organization. ACMC has the power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all requisite action by ACMC. This Agreement constitutes the
valid and legally binding obligation of ACMC, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and to general principles of equity, regardless or whether
enforcement is sought in a proceeding in equity or at law.
SECTION 6.02. Conflicts. The execution and delivery by ACMC of this
Agreement and the consummation of the transactions contemplated hereby will
not: (i) conflict with or result in any breach of any provision of the
certificate of incorporation and bylaws (or comparable governing documents) of
ACMC or (ii) result in any conflict with applicable law, except as would not
have a material adverse effect on its ability to conduct business as currently
conducted.
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SECTION 6.03. Consents; Governmental Approvals. No Consent or
Governmental Approval is required to be obtained by ACMC in connection with
(i) the execution and delivery by it of this Agreement, (ii) the performance
of its obligations hereunder and (iii) the consummation of the transactions
contemplated hereby, except as would not have a material adverse effect on its
ability to conduct business as currently conducted.
SECTION 6.04. Brokers. ACMC has not incurred any liability for any
fee or commission to any broker, finder, investment banker or other
intermediary in connection with the transactions contemplated by this
Agreement.
ARTICLE 7
COVENANTS
SECTION 7.01. Further Actions. Each of the parties agrees to use its
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective the transactions contemplated by this Agreement, including,
without limitation:
(a) to make, or cause to be made, all such filings and submissions
under any applicable law and give such reasonable undertakings, as may be
required to consummate the contribution of the Transferred Assets (including
the Holdback Interests), the Exchange Offer, the Equitable Life Exchange and
the other transactions contemplated hereby;
(b) to use its reasonable efforts to obtain, or cause to be
obtained, all Governmental Approvals and other Consents necessary to be
obtained in order to consummate the contribution of the Transferred Assets
(including the Holdback Interests, subject to the determination by ACMC, in
its sole discretion, that the contribution of certain Holdback Interests shall
be effected notwithstanding any impediments to transfer or in the absence of
applicable Consents), the Exchange Offer, the Equitable Life Exchange and any
related transactions, including, without limitation, the solicitation of the
approval of the unitholders of Alliance Holding with respect to the
Reorganization and the solicitation of all Consents required under Alliance
Holding's Investment Advisory Contracts (each in accordance with agreed upon
standards and procedures for obtaining such consents); and
(c) to use its reasonable efforts to take, or cause to be taken, all
other actions necessary, proper or advisable in order to fulfill its
obligations in respect of this Agreement and the transactions contemplated
hereby.
Each of the parties will coordinate and cooperate with the other
parties in exchanging such information and supplying such reasonable
assistance as may be requested by the other parties in connection with the
filings and other actions contemplated by this Section 7.01.
ARTICLE 8
CONDITIONS PRECEDENT
SECTION 8.01. Conditions to Obligations of Each Party. The obligation
of each party to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment on or prior to the Closing Date of the
following conditions:
(a) No Injunction, etc. Consummation of the transactions
contemplated by this Agreement shall not have been restrained, enjoined or
otherwise prohibited by any applicable law, including any order, injunction,
decree or judgment of any court or other Governmental Authority, and no action
or proceeding shall be pending or threatened by any Governmental Authority on
the Closing Date before any court or other Governmental Authority
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to restrain, enjoin or otherwise prevent the consummation of the transactions
contemplated hereby or to recover any material damages or obtain other
material relief as a result of such transactions. There shall not have been
promulgated, entered, issued, or determined by any court or other Governmental
Authority to be applicable to this Agreement any applicable law making illegal
the consummation of the transactions contemplated hereby, and no proceeding
with respect to the application of any such applicable law shall be pending.
(b) Effectiveness of the Registration Statement. The Registration
Statement on Form S-4 filed with the SEC by Alliance Holding and Alliance
Capital relating to the special meeting of Alliance Holding unitholders to be
held to approve the Reorganization and to the Exchange Offer (including the
proxy statement and prospectus constituting a part thereof, the "Registration
Statement") shall have become and remain effective under the Securities Act.
No stop order suspending the effectiveness of the Registration Statement shall
have been issued by the SEC and no proceedings for that purpose and no similar
proceedings in respect of the Registration Statement shall have been initiated
or threatened by the SEC.
(c) Requisite Approvals. The requisite approvals of the unitholders
of Alliance Capital with respect to the Reorganization shall have been
obtained.
(d) Opinions. The following opinions, dated as of the Effective
Time, shall have been delivered to Equitable Life, Alliance Holding and ACMC:
(i) the opinion of Morris, Nichols, Arsht & Tunnell as to limited
liability, in the form attached hereto as Exhibit E;
(ii) the opinion of Davis Polk & Wardwell as that the reorganization
will not be an assignment of investment contracts for purposes of the
Investment Company Act of 1940 or the Investment Advisory Act of
1940, in the form attached hereto as Exhibit F;
(iii) the opinion of Davis Polk & Wardwell as to certain tax matters,
in the form attached hereto as Exhibit G; and
(iv) the opinion of Debevoise & Plimpton as to the enforceability of
the Investment Advisory Agreement and the Services Agreement referred
to in Section 2.01(c), in the form attached hereto as Exhibit H.
(e) Exemptive Order. Alliance Holding shall have received an
exemptive order from the Securities and Exchange Commission from Sections
3(a)(I)(c) and 7(a) of the Investment Company Act of 1940 with respect to its
interests in Alliance Capital.
ARTICLE 9
TERMINATION
SECTION 9.01. Termination. This Agreement may be terminated at any
time prior to the Closing Date (i) by the written agreement of the parties
hereto or (ii) by any of Alliance Holding, Alliance Capital, ACMC or Equitable
Life if any condition specified in Article IX shall not have been satisfied or
waived prior to June 30, 2000. In addition, notwithstanding the approval of
the Reorganization by the unitholders of Alliance Holding, ACMC may terminate
this Agreement and abandon the transactions contemplated by this Agreement,
including the Reorganization and the Exchange Offer, at any time prior to
their consummation if it determines that the consummation of such transactions
is no longer in the best interests of Alliance Holding and its unitholders.
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SECTION 9.02. Effect of Termination. In the event of the termination
of this Agreement pursuant to Section 9.01, this Agreement shall become void
and have no effect, without any liability to any Person in respect hereof or
of the transactions contemplated hereby on the part of any party hereto, or
any of its directors, officers, employees, agents, consultants,
representatives, advisers, stockholders or Affiliates, except for any
liability resulting from such party's breach of this Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Remedies. Each party acknowledges that it will be
impossible to measure the damages that would be suffered by the other parties
if such party fails to comply with the covenants set forth in this Agreement
and that in the event of any such failure, the other parties will not have an
adequate remedy at law. Each party shall, therefore, be entitled in addition
to any other rights and remedies to obtain specific performance of the other
parties obligations hereunder and to obtain immediate injunctive relief
without having to post a bond. No party shall assert, as a defense to any
proceeding for such specific performance or injunctive relief, that the other
parties have an adequate remedy at law.
SECTION 10.02. Successors. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall not be assignable by
any party with the written consent of the other parties.
SECTION 10.03. Headings. The headings in this Agreement are inserted
for convenience of reference only and shall not be a part of or control or
affect the meaning hereof.
SECTION 10.04. Entire Agreement. This Agreement supersedes any and
all oral or written agreements heretofore made relating to the subject matter
hereof and constitutes the entire agreement of the parties relating to the
subject matter hereof.
SECTION 10.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware,
without giving effect to any conflicts or choice of law provisions that would
make applicable the substantive laws of any other jurisdiction.
SECTION 10.06. Amendments. This Agreement may be amended only with
the prior written consent of each party hereto.
SECTION 10.07. Interpretation. When a reference is made in this
Agreement to a Section or Exhibit, such reference will be to a Section of, or
an Exhibit to, this Agreement unless otherwise indicated. Whenever the words
"include," "includes" or "including" are used in this Agreement, they will be
deemed to be followed by the words "without limitation." The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Agreement will refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms used in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case
of statutes) by succession of comparable successor statutes and references to
all attachments thereto and instruments incorporated therein. References to
any person are also to its permitted successors and assigns.
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SECTION 10.08. Waivers. No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by the party giving
such waiver. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any
subsequent, same or different breach.
SECTION 10.09. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
SECTION 10.10. Severability. To the extent possible, each provision
of this Agreement shall be interpreted in a manner as to be valid, legal and
enforceable. Any determination that any provision of this Agreement or any
application thereof is invalid, illegal or unenforceable in any respect or in
any instance shall be effective only to the extent of such invalidity,
illegality or unenforceability and shall not affect the validity, legality or
enforceability of any other provision of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management Corporation
its general partner
By: /s/ David R. Brewer, Jr.
---------------------------------------
Name: David R. Brewer, Jr.
Title: Senior Vice President and
General Counsel
ALLIANCE CAPITAL MANAGEMENT L.P. II
By: Alliance Capital Management Corporation
its general partner
By: /s/ David R. Brewer, Jr.
---------------------------------------
Name: David R. Brewer, Jr.
Title: Senior Vice President and
General Counsel
ALLIANCE CAPITAL MANAGEMENT CORPORATION
By: /s/ David R. Brewer, Jr
---------------------------------------
Name: David R. Brewer, Jr.
Title: Senior Vice President and
General Counsel
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES
By: /s/ Stanley B. Tulin
---------------------------------------
Name: Stanley B. Tulin
Title: Vice Chairman and Chief
Financial Officer
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SCHEDULES 3.02 AND 3.04
CONFLICTS; CONSENTS; GOVERNMENTAL APPROVALS
Schedules 3.02 and 3.04 shall be deemed to include those contracts,
agreements and investments set forth on Annexes A and B hereto that are
identified as requiring consent or governmental approval and those contracts
and agreements that are identified as requiring consent or governmental
approval with the clients of Alliance Holding set forth on Annexes C, D and E
hereto.
S-1
