EXHIBIT (a)(9)
PASS-THROUGH AGREEMENT
This PASS-THROUGH AGREEMENT is dated as of October 29, 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"), and Alliance Capital Management Corporation,
a Delaware corporation in its capacities as the sole general partner of each of
Alliance Holding and Alliance Capital ("ACMC"). Capitalized terms not defined
herein have the meanings specified in the Plan of Reorganization (as defined
below).
W I T N E S S E T H :
WHEREAS, pursuant to the terms and conditions of the Agreement and Plan of
Reorganization dated as of August 20, 1999 among The Equitable Life Assurance
Society of the United States, a New York stock life insurance corporation
("Equitable Life"), ACMC, Alliance Holding and Alliance Capital (the "Plan of
Reorganization"), Alliance Holding intends to reorganize (the "Reorganization")
its business by transferring substantially all of its assets and liabilities to
Alliance Capital in exchange for all outstanding units of Alliance Capital; and
WHEREAS, concurrently herewith, Alliance Holding and Alliance Capital have
entered into a Global Assignment and Assumption Agreement (the "Assignment and
Assumption Agreement"), pursuant to which Alliance Holding will, except as set
forth therein, transfer, convey, assign and deliver to Alliance Capital all
right, title and interest of Alliance Holding in and to the Transferred Assets
(as defined in the Plan of Reorganization), and Alliance Capital will assume
and agree to pay, honor and discharge all of the Assumed Liabilities (as
defined in the Plan of Reorganization), as of the Effective Time; and
WHEREAS, as contemplated by the Plan of Reorganization, the parties have
determined that, due to an inability to obtain a Consent or otherwise resolve
an impediment to transfer, or for other reasons determined by ACMC in its sole
discretion, legal title to certain of Alliance Holding's assets (the "Holdback
Interests", as identified on Schedule A hereto) shall not be transferred from
Alliance Holding to Alliance Capital as of the Effective Time; and
WHEREAS, pursuant to the Plan of Reorganization, the parties have agreed
that Alliance Holding and Alliance Capital shall enter into an arrangement
designed to pass through the beneficial ownership of such Holdback Interests,
including the economic benefit associated therewith, to Alliance Capital and to
require Alliance Capital to perform the obligations of Alliance Holding
thereunder;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements herein contained, and for other good and valuable consideration, the
adequacy of which is acknowledged, the parties hereto agree as follows:
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SECTION 1. Pass-through Arrangement. (a) Alliance Holding hereby agrees to
transfer, convey, assign and deliver all of the economic rights and benefits
associated with each Holdback Interest to Alliance Capital promptly following
the accrual of such right or benefit, and Alliance Capital hereby agrees to
accept all of the economic rights and benefits associated with each Holdback
Interest and further agrees to assume and to pay, perform and discharge
promptly and fully when due all of the liabilities associated with each
Holdback Interest. Alliance Holding shall retain legal title to, but shall have
no other interest whatsoever in, each Holdback Interest.
(b) Alliance Holding hereby agrees to 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 or relating to any Holdback Interest against
such issuer thereof or the other party or parties thereto (including the right
to terminate any such Holdback Interest in accordance with the terms thereof
upon the advice of Alliance Capital), and Alliance Capital agrees to perform
for the benefit of the issuer thereof, or the other party or parties thereto,
as the case may be, all of the obligations of Alliance Holding to be performed
thereunder.
(c) The obligations of Alliance Holding and Alliance Capital set forth in
clauses (a) and (b) above shall remain in effect with respect to each Holdback
Interest until the earlier of (i) the expiration of the term or the termination
of such Holdback Interest in accordance with the terms thereof or (ii) such
time as Alliance Holding shall have transferred, conveyed, assigned and
delivered all of the right, title and interest of Alliance Holding in, to and
under such Holdback Interest to Alliance Capital or an assignee of Alliance
Capital.
SECTION 2. Future Assignment of Holdback Interests. (a) Subject to ACMC's
right to determine that Alliance Holding and Alliance Capital not seek any
Consent or attempt to 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 as necessary to convey to Alliance Capital legal title
to each Holdback Interest as soon as practicable.
(b) With respect to any Holdback Interest for which Consent to transfer
legal title shall have been obtained, impediments to transfer of legal title
shall have been resolved or ACMC shall have otherwise determined in its sole
discretion that transfer of legal title is appropriate after the date hereof
notwithstanding the absence of such Consent or the existence of such impediment
to transfer, Alliance Holding hereby agrees that it shall transfer, assign and
deliver to Alliance Capital all of its right, title and interest in, to and
under such Holdback Interest, and Alliance Capital hereby agrees that it shall
accept all the right, title and interest of Alliance Holding in, to and under
such Holdback Interest, as of such date on the terms and conditions set forth
in the Assignment and Assumption Agreement.
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SECTION 3. Reimbursement and Indemnification. Alliance Capital shall
indemnify and hold Alliance Holding harmless from and against any and all
losses arising from or in connection with the administration of the Holdback
Interests or otherwise in connection with the transactions contemplated herein
or the enforcement hereof as set forth in Section 6.14 of the Amended and
Restated Agreement of Limited Partnership of Alliance Capital dated as of the
date hereof.
SECTION 4. Representations and Warranties of Alliance Holding. Alliance
Holding represents and warrants to Alliance Capital and ACMC as follows:
(a) Partnership Existence; Authorization. Alliance Holding is a limited
partnership duly organized, validly existing and in good standing under the
laws of Delaware. The execution, delivery and performance by Alliance Holding
of this Agreement and the consummation of the transactions contemplated hereby
are within Alliance Holding's partnership powers and have been duly authorized
by all necessary partnership action. The execution, delivery and performance by
Alliance Holding of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency or official. This Agreement constitutes the valid and
binding obligation of Alliance Holding.
(b) Noncontravention. The execution, delivery and performance by Alliance
Holding of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) contravene or conflict with its limited
partnership agreement or (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree binding upon or applicable to it, except
as would not have a material adverse effect on its ability to conduct business
as currently conducted.
SECTION 5. Representations and Warranties of Alliance Capital. Alliance
Capital represents and warrants to Alliance Holding and ACMC as follows:
(a) Partnership Existence; Authorization. Alliance Capital is a limited
partnership duly organized, validly existing and in good standing under the
laws of Delaware. The execution, delivery and performance by Alliance Capital
of this Agreement and the consummation of the transactions contemplated hereby
are within Alliance Capital's partnership powers and have been duly authorized
by all necessary partnership action. The execution, delivery and performance by
Alliance Capital of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency or official. This Agreement constitutes the valid and
binding agreement of Alliance Capital.
(b) Noncontravention. The execution, delivery and performance by Alliance
Capital of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) contravene or conflict with its limited
partnership agreement or (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree binding
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upon or applicable to it, except as would not have a material adverse effect on
its ability to conduct business as currently conducted.
SECTION 6. Representations and Warranties of ACMC. ACMC represents and
warrants to Alliance Holding and Alliance Capital as follows:
(a) Organization; Authorization. ACMC is duly incorporated, validly
existing and in good standing under the laws of the state of its incorporation.
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 necessary corporate action by ACMC. This Agreement constitutes the valid
and binding obligation of ACMC.
(b) The execution, delivery and performance by ACMC of this Agreement and
the consummation of the transactions contemplated hereby do not and will not
(i) contravene or conflict with any provision of its certificate of
incorporation and bylaws or (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree binding upon or applicable to it, except
as would not have a material adverse effect on its ability to conduct business
as currently conducted.
SECTION 7. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and
shall be given to Alliance Capital Management L.P. or Alliance Capital
Management L.P. II, as the case may be, c/o Alliance Capital Management
Corporation, 1345 Avenue of the Americas, New York, New York 10105, Attn:
General Counsel, Fax: (212) 969-1334, or to Alliance Capital Management
Corporation at the same address, with a copy to Davis Polk & Wardwell, 450
Lexington Avenue, New York, New York 10017, Attn: Phillip R. Mills, Fax: (212)
450-4800. All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place
of receipt.
SECTION 8. Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement, or in
the case of a waiver, by the party against whom the waiver is to be effective;
provided that any amendment that would materially affect the rights and
obligations of the parties hereto shall require the unanimous approval of the
board of directors of ACMC. 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
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remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
SECTION 11. Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any New York State court sitting in New York City, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 7 shall be
deemed effective service of process on such party.
SECTION 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other parties hereto.
SECTION 14. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this
Agreement.
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SECTION 15. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
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
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION
By: /s/ Robert H. Joseph, Jr.
---------------------------------------
Name: Robert H. Joseph, Jr.
Title: Senior Vice President and Chief
Financial Officer
