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UNIT PURCHASE AGREEMENT
Dated as of June 28, 1994
By and Among
ALLIANCE CAPITAL MANAGEMENT L.P.
OVERSEA-CHINESE BANKING CORPORATION LIMITED
and
EASTERN HOLDINGS LIMITED
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UNIT PURCHASE AGREEMENT ("this Agreement") dated as of June 28, 1994
by and among ALLIANCE CAPITAL MANAGEMENT L.P. ("Alliance"), a limited
partnership organized under the laws of Delaware, OVERSEA-CHINESE BANKING
CORPORATION LIMITED ("OCBC"), a banking corporation incorporated under the laws
of Singapore, and EASTERN HOLDINGS LIMITED, a corporation organized under the
laws of Hong Kong and a wholly-owned subsidiary of OCBC ("Eastern").
W I T N E S S E T H :
WHEREAS, OCBC and Eastern believe that a strategic equity investment
in Alliance by Eastern would be desirable;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
PURCHASE OF UNITS
Section 1.1 PURCHASE OF UNITS. On the Closing Date (as defined
below), subject to the terms and conditions set forth in this Agreement,
Alliance shall issue and sell to Eastern, and Eastern shall purchase from
Alliance, a number of Units equal to the number resulting after dividing U.S.
$50,000,000 (the "Purchase Price") by a number equal to the weighted average
sale price (adjusted for any subdivisions of, or combinations with respect to,
the Units) for all sales of Units on the New York Stock Exchange for the 30
trading days immediately preceding the second trading day preceding the Closing
Date. Such sales price data shall be obtained directly from the New York Stock
Exchange at the expense of Alliance. "Units" and "Limited Partnership
Interests" shall have the respective meanings set forth in the Agreement of
Limited Partnership of Alliance (As Amended And Restated) as of the date hereof
(the "Limited Partnership Agreement"). The Units Alliance is so obligated to
issue and sell to Eastern are referred to herein as the "OCBC Units."
Section 1.2 CLOSING. (a) The sale and purchase of the OCBC
Units referred to in Section 1.1 (the "Closing") shall take place at 10:00 A.M.
at the offices of White & Case, 1155 Avenue of the Americas, New York, New York
on July 1, 1994, or at such other time and place, or on such other date, as the
parties hereto shall agree in writing. Such date is herein referred to as the
"Closing Date."
(b) At the Closing, (i) Alliance shall deliver to Eastern (A) a
certificate or certificates for the OCBC Units registered in the name of Eastern
and in such denominations as Eastern shall designate in writing to Alliance at
least five days prior to the Closing and (ii) Eastern shall make payment of the
Purchase Price by wire transfer of immediately available funds to an account
designated by Alliance in writing at least 48 hours prior to the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF ALLIANCE.
Alliance hereby represents and warrants to OCBC and Eastern as follows:
(a) ORGANIZATION, AUTHORITY. (i) Alliance is a limited partnership
organized under the Delaware Revised Uniform Limited Partnership Act, as
amended, validly existing and in good standing under the laws of the State of
Delaware. Alliance has the power and authority to execute and deliver this
Agreement and each other agreement, document or instrument to be delivered by it
pursuant hereto, to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and each other agreement, document or instrument to
be delivered by it pursuant hereto, and the consummation of the transactions
contemplated hereby and thereby, have been or will be by Closing duly authorized
by all requisite action by Alliance and the General Partner.
(ii) Alliance has full power and authority and possesses all rights,
licenses, authorizations and approvals, governmental or otherwise (collectively,
"Authorizations"), necessary to entitle it to own, lease or otherwise hold its
properties and assets, and to carry on its business as currently conducted
except where the failure to obtain such Authorizations would not have a material
adverse effect on the Alliance Group, taken as a whole. Alliance is duly
qualified, licensed or registered to transact business and is in good standing
in each jurisdiction in which its ownership or leasing of property requires such
qualification, license or registration or in which the failure to be so
qualified would have a material adverse effect on its ability to conduct
business as currently conducted.
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(b) NO CONFLICTS. The execution and delivery by Alliance of this
Agreement and each other agreement, document or instrument to be delivered by it
pursuant hereto and the consummation of the transactions contemplated hereby and
thereby will not: (i) conflict with or result in any breach of any provision of
the Limited Partnership Agreement, (ii) conflict with or result in any breach of
or default under any provision of any contract, agreement or investment of any
kind to which Alliance is a party or by which Alliance or any of its assets or
properties is bound or (iii) result in any conflict with Applicable Law.
(c) CONSENTS; GOVERNMENTAL APPROVALS. Except for the approval of the
New York Stock Exchange of the listing of the OCBC Units, which shall have been
obtained prior to the Closing Date subject only to official notice of issuance
of the OCBC Units, no Consent or Governmental Approval is required to be
obtained by Alliance in connection with (i) the execution and delivery by
Alliance of this Agreement and each other agreement, document or instrument to
be delivered by it pursuant hereto, (ii) the performance of its obligations
hereunder and thereunder, and (iii) the consummation of the transactions
contemplated hereby and thereby.
(d) BROKERS. Alliance 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.
(e) FINANCIAL STATEMENTS. Alliance has delivered or made available to
OCBC complete and correct copies of Alliance's Financial Statements for the
fiscal years ended December 31, 1991, 1992 and 1993, and for the three month
period ended March 31, 1994, respectively. Such annual Financial Statements
have been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with previous periods (except as disclosed in such
Financial Statements or footnotes thereto). Such Financial Statements present
fairly the financial position of Alliance as of the date of each such Financial
Statement and the results of Alliance's operations and cash flows during the
period covered by each such Financial Statement. Since the date of Alliance's
Financial Statements for the three month period ended March 31, 1994, there has
been no change in the financial position or operations of Alliance, other than
changes in the ordinary course of business (and changes of a general or economic
nature) that, individually and in the aggregate, have not had and would not have
a material adverse
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effect on the business or operations of the Alliance Group, taken as a whole.
Since December 31, 1993, there has been no material change in Alliance's
accounting principles or related methodology.
(f) FEDERAL AND STATE SECURITIES LAWS. (i) Alliance is duly
registered as an investment adviser under the Advisers Act. Alliance is duly
registered or licensed under applicable law as an investment adviser in each
state or other jurisdiction in which the nature of its business so requires and
where the failure to be so duly registered or licensed would have a material
adverse effect on the Alliance Group, taken as a whole.
(ii) Alliance has filed on a timely basis and in a proper manner all
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K, Registration Statements on Form ADV, and such other filings as
Alliance is obligated to make under the Exchange Act, the Securities Act, the
Investment Company Act or Advisers Act or under any applicable state blue sky
laws and securities regulations where the failure to make such filing would have
a material adverse effect on the Alliance Group, taken as a whole (collectively,
"Alliance's Regulatory Filings"). Alliance's Regulatory Filings contain all the
information required by such Federal or state securities laws to be included
therein and do not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made.
(g) UNITS. (i) The OCBC Units have been or will be, prior to the
Closing, duly authorized and, when issued to Eastern pursuant to this Agreement
will be validly issued, free and clear of any liens, encumbrances, equities or
claims. The holders of the OCBC Units will be entitled to the same rights
(including rights to any subdivisions thereof or distributions thereon, subject
to Section 3.6) as all other holders of Limited Partnership Interests and Units
of Alliance other than the holders of the Class A Limited Partnership Interest
and the Class B Limited Partnership Interest (such Interests being provided for
in the Limited Partnership Agreement). Subject only to the provisions of
Applicable Law, Eastern, as holder of the OCBC Units, will have no liability to
Alliance or any of its creditors. The issuance of the OCBC Units to Eastern is
not subject to preemptive rights of any partner in, or any Affiliate or creditor
of, Alliance or any other person. The issuance and delivery of the OCBC Units
by Alliance do not and will not
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conflict with or breach any term or provision of or constitute a default under
the Limited Partnership Agreement or the certificate of limited partnership, or
any other agreement or instrument to which Alliance is a party or by which any
of Alliance's properties is bound or any applicable law, rule, regulation,
judgment, order or decree of any government, governmental agency or
instrumentality or court, domestic or foreign, having jurisdiction over Alliance
or any of its properties. No Consent, Governmental Approval or authorization or
order of any Governmental Authority is required for the valid authorization,
issuance and delivery of the OCBC Units by Alliance to Eastern, except such
Consents, Governmental Approvals or authorizations as shall have been obtained
at the time of the Closing.
(ii) Subject to and in reliance upon the representation given in Section
3.1, the issuance of the OCBC Units by Alliance pursuant to this Agreement will
be exempt from registration under the Securities Act.
(iii) There are no preemptive or similar rights on the part of any
holders of any class of securities of Alliance. Except for this Agreement, the
Alliance Capital Management L.P. Unit Option Plan, the Alliance Capital
Management L.P. 1993 Unit Option Plan, the Alliance Capital Management L.P. Unit
Bonus Plan, the Alliance Capital Management L.P. Century Club Plan, the Alliance
Capital Management L.P. Shields/Regent Retention Unit Bonus Plan, the Class A
Limited Partnership Interest, the Class B Limited Partnership Interest, the
Contribution Agreement, dated May 6, 1994, between Alliance and The Equitable
Life Assurance Society of the United States, and the 8 Per Cent Unsecured Loan
Notes 1996 of Alliance Capital Management Corporation of Delaware constituted by
an Instrument dated 7 November 1991, no subscriptions, options, warrants,
conversion or other rights, agreements, commitments, arrangements or
understandings of any kind obligating Alliance, contingently or otherwise, to
issue or sell, or cause to be issued or sold, any partnership interests or units
of any class, or any securities convertible into or exchangeable for any such
interests or units, are or will at the Closing be outstanding; and no
authorization therefore has or will have been given. There are no outstanding
contractual obligations of Alliance to repurchase, redeem or otherwise acquire
or reacquire any outstanding Limited Partnership interests or Units except for
the right to acquire any Units that are forfeited by any employee or former
employee of Alliance or a Subsidiary of Alliance under any Alliance employee
plan or agreement.
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Section 2.2 REPRESENTATIONS AND WARRANTIES OF OCBC AND EASTERN.
In addition to the representation and warranty set forth in Section 3.1, OCBC
and Eastern represent and warrant to Alliance as follows:
(a) ORGANIZATION, AUTHORITY. OCBC is a banking corporation duly
organized, validly existing and in good standing under the laws of Singapore,
and Eastern is a corporation duly organized, validly existing and in good
standing under the laws of Hong Kong. OCBC and Eastern have full power and
authority to execute and deliver this Agreement and each other agreement,
document or instrument to be delivered by either of them pursuant hereto, to
perform their obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and each other agreement, document or instrument to be delivered
by OCBC or Eastern pursuant hereto, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all requisite
corporate action of OCBC and Eastern.
(b) NO CONFLICTS. The execution and delivery by OCBC and Eastern
of this Agreement and each other agreement, document or instrument to be
delivered by either of them pursuant hereto and the consummation of the
transactions contemplated hereby and thereby will not: (i) conflict with or
result in any breach of any provision of their respective organizational,
charter or governing documents, (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 OCBC or Eastern is a party or by which OCBC or Eastern or any of their
respective assets or properties are bound which would have a material adverse
effect on OCBC and its Subsidiaries, taken as whole or (iii) result in any
conflict with Applicable Law.
(c) CONSENTS; GOVERNMENT APPROVALS. No Consent or Governmental
Approval is required to be obtained by or on behalf of OCBC or Eastern or any
Affiliate of OCBC or Eastern in connection with (i) the execution and delivery
by OCBC and Eastern of this Agreement and each other agreement, document or
instrument to be delivered by either of them pursuant thereto, (ii) the
performance of each of their obligations hereunder and thereunder, and (iii) the
consummation of the transactions hereby and thereby.
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ARTICLE III
TRANSFER AND OWNERSHIP OF UNITS
Section 3.1 PURCHASE FOR INVESTMENT. OCBC and Eastern represent
and warrant to Alliance that Eastern is acquiring the OCBC Units for its own
account for investment only and not with a view to, or for sale in connection
with, any distribution thereof within the meaning of the Securities Act.
Eastern acknowledges that the OCBC Units have not been registered under the
Securities Act and may not be transferred in the absence of such registration or
pursuant to an exemption from the registration requirements of the Securities
Act. Eastern also acknowledges that any certificate evidencing the OCBC Units
shall carry a legend to such effect. Eastern will not at any time sell, pledge,
assign, encumber or otherwise transfer any OCBC Units in a manner which would
violate the provisions of the Securities Act.
Section 3.2 TWO-YEAR HOLDING PERIOD. Subject to the provisions
of Section 3.4, Eastern shall not, during the first two years following the
Closing Date (the "Holding Period"), sell, pledge, assign, encumber or otherwise
transfer any of the OCBC Units other than (i) with the prior written consent of
Alliance or (ii) to one or more members of the OCBC Group which agree in writing
to be bound by all of the terms of this Agreement applicable to Eastern with
respect to transfer of the OCBC Units.
Section 3.3 REGISTRATION RIGHTS. Eastern and all other OCBC
Persons shall be entitled to the registration rights set forth in Exhibit A
hereto.
Section 3.4 SALE TO STRATEGIC PARTNER. In the event that at any
time (whether during or after the Holding Period) any member of the Alliance
Group enters into an agreement ("Relationship Agreement") with a Strategic
Partner (as hereinafter defined) to participate in a strategic regional
relationship relating to the distribution of investment funds in ASEAN countries
or to engage in the investment management business in respect of securities of
ASEAN issuers in ASEAN countries (i) Alliance will give OCBC at least 30 days
advance written notice regarding any acquisition by the Strategic Partner from
Alliance of Units or equity securities of Alliance, or options thereon, in
connection with the Relationship Agreement within 180 days after the
Relationship Agreement becomes effective ("Alliance Notice"), and (ii) the OCBC
Persons who are members of the
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OCBC Group shall have the right by written notice to Alliance within 150 days of
the Alliance Notice ("OCBC Notice") to sell up to an aggregate number of OCBC
Units to a Designated Alliance Purchaser (as hereinafter defined) equal (or in
the case of other equity securities, substantially equivalent) to the number of
Units or other securities to be acquired by the Strategic Partner at a sales
price per OCBC Unit calculated in accordance with the formula set forth in
Section 1.1, unless the per Unit price to be paid by the Strategic Partner is
calculated as the average or mean, over a period of not less than 10 nor more
than 30 consecutive business days preceding (by not more than three business
days) the date of payment of such price to such OCBC Persons, of (i) the last
reported sales price per Unit on each day during such period on the principal
securities exchange on which the Units are listed or admitted to trading, (ii)
the last reported bid and asked prices per Unit on each such day on such
exchange, or (iii) the high and low sales prices per Unit on each such day on
such exchange, in which case such average or mean price per Unit shall be the
applicable sales price per OCBC Unit. Alliance will not sell any Units or other
equity securities of Alliance, or options thereon, to the Strategic Partner
unless and until all of OCBC Units covered by the OCBC Notice have been
purchased by the Alliance Designated Purchaser so long as the offering OCBC
Person is in compliance with the terms of its offer. Notwithstanding the
foregoing, no OCBC person shall have any right to offer or to sell any OCBC
Units pursuant to this Section if the Agreement of Cooperation, dated as of June
28, 1994, between Alliance and OCBC has terminated by mutual consent of Alliance
and OCBC. The term "Strategic Partner" shall mean an organization other than an
OCBC Person (i) the business of which organization and its affiliates taken as a
whole is primarily conducted in ASEAN countries, (ii) which enters into a
Relationship Agreement with a member of the Alliance Group, and (iii) which is
entitled to acquire Units or other equity securities of Alliance having an
aggregate purchase price of at least $15 million, or options thereon, pursuant
to the Relationship Agreement. The term "Alliance Designated Purchaser" shall
mean either the Strategic Partner or any member of the Alliance Group, whichever
is designated by Alliance as the Alliance Designated Purchaser.
Section 3.5 LEGEND ON OCBC UNITS. Each certificate for OCBC
Units issued at the Closing shall be stamped or otherwise imprinted with a
legend in substantially the following form:
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"The Units represented by this Certificate have not been registered
under the United States Securities Act of 1933 (the "Act") or the
securities laws of any state by virtue of exemptions from the
registration requirements of the Act and such laws. These Units are
subject to restrictions on transferability and resale and may not be
transferred or resold except as permitted under the Act and
applicable state securities laws, pursuant to registration or
exemption therefrom. In addition, this Certificate and the Units
represented hereby are subject to the terms of the Unit Purchase
Agreement, dated as of
June 28, 1994, by and among Oversea-Chinese Banking Corporation
Limited, Eastern Holdings Limited and Alliance Capital Management
L.P. The Units may not be sold, assigned, transferred, pledged or
otherwise disposed of or encumbered except as provided in such Unit
Purchase Agreement. A copy of such Unit Purchase Agreement is
available for inspection at the executive offices of Alliance
Capital Management L.P."
Alliance shall issue new Unit certificates not bearing the legend set forth
above in exchange for certificates representing any OCBC Units which are no
longer subject to any restrictions on sale or transfer under either (i) the
terms of this Agreement or (ii) the provisions of the Securities Act; provided,
however, that Alliance may request that the person or entity requesting the new
certificates furnish an opinion of counsel, in form and substance reasonably
satisfactory to Alliance from counsel satisfactory to Alliance, as to the
absence of any restrictions on sale or transfer of the OCBC Units under the
Securities Act.
Section 3.6 DISTRIBUTIONS WITH RESPECT TO OCBC UNITS. The holder
of the OCBC Units on the record date for the regular quarterly distribution by
Alliance relating to the quarter during which Eastern acquires the OCBC Units
(the "Acquisition Quarter") will receive a pro-rata portion of the distribution
with respect to its OCBC Units equal to the amount distributed per Unit
multiplied by a fraction the numerator of which is the number of days during the
Acquisition Quarter that the OCBC Units have been outstanding and the
denominator of which is the total number of days in the Acquisition Quarter.
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ARTICLE IV
CLOSING CONDITIONS
Section 4.1. CLOSING CONDITIONS TO OBLIGATIONS OF EASTERN. The
obligations of Eastern to purchase the OCBC Units at the Closing are subject to
the satisfaction or waiver on or before the Closing Date of the following
conditions precedent:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Alliance contained herein shall be true and
correct in all material respects as of the date hereof and at and as of the
Closing Date, with the same force and effect as though made on and as of the
Closing Date.
(b) PERFORMANCE BY ALLIANCE. Alliance shall have performed all
obligations and agreements, and complied with all covenants and conditions,
contained in this Agreement which are to be performed or complied with by it
prior to or at the Closing.
(c) CONSENTS AND APPROVALS. All consents, approvals and other
action by, all notices to, and all filings with, all Persons, including all
courts and administrative and governmental bodies, that are required to have
been obtained, taken or made by Alliance to consummate the transactions
contemplated by this Agreement shall have been obtained, undertaken or made, and
all waiting periods shall have expired or been waived, as the case may be.
(d) NO MATERIAL ADVERSE CHANGE. Prior to the Closing no event
shall have occurred or failed to occur, which occurrence, or failure to occur,
as the case may be, has had or is reasonably likely to have a material adverse
effect on the Alliance Group, taken as a whole.
(e) OPINION OF COUNSEL. OCBC and Eastern shall have received
opinions, dated the Closing Date, of Seward & Kissel, special counsel to
Alliance, and White & Case, special counsel to OCBC and Eastern, in
substantially the forms of Exhibits B and C attached hereto.
(f) OFFICER'S CERTIFICATES. (i) Alliance shall have delivered
to OCBC and Eastern a certificate of the Chairman of the Board, President, any
Executive Vice President or any Senior Vice President of the General Partner,
dated the Closing Date, certifying that the
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conditions specified in Sections 4.1(a), 4.1(b), 4.1(c) and 4.1(d) have been
satisfied.
(g) PROCEEDINGS SATISFACTORY. All proceedings taken in
connection with the sale of the OCBC Units and all documents and papers relating
thereto shall be reasonably satisfactory to OCBC and Eastern and their special
counsel. OCBC and Eastern and their special counsel shall have received copies
of such documents and papers as they may reasonably request in connection
therewith or as a basis for such special counsel's closing opinion, all in form
and substance satisfactory to OCBC and Eastern and their special counsel.
Section 4.2 CLOSING CONDITIONS TO OBLIGATIONS OF ALLIANCE. The
obligations of Alliance to sell and issue the OCBC Units at the Closing are
subject to the satisfaction or waiver on or before the Closing Date of the
following conditions precedent:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of OCBC and Eastern contained herein shall
be true and correct in all material respects as of the date hereof and at
and as of the Closing Date, with the same force and effect as though made
on and as of the Closing Date.
(b) PERFORMANCE BY OCBC AND EASTERN. OCBC and Eastern shall have
performed all obligations and agreements, and complied with all covenants
and conditions, contained in this Agreement which are to be performed or
complied with by either of them prior to or at the Closing.
(c) CONSENTS AND APPROVALS. All consents, approvals and other
action by, all notices to, and all filings with, all Persons, including
all courts and administrative and governmental bodies, that are required
to have been obtained by either of OCBC and Eastern, taken or made to
consummate the transactions contemplated by this Agreement shall have been
obtained, undertaken or made by OCBC and Eastern, as the case may be, and
all waiting periods shall have expired or been waived, as the case may be.
(d) OFFICER'S CERTIFICATES. OCBC and Eastern shall have
delivered to Alliance a certificate of the Chairman of the Board, the
President, any Executive Vice President or any Senior Vice President of
OCBC or
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Eastern, as the case may be, dated the Closing Date, certifying that the
conditions specified in Sections 4.2(a), 4.2(b) and 4.2(c) have been
satisfied.
(e) PROCEEDINGS SATISFACTORY. All proceedings taken in
connection with the purchase of the OCBC Units and all documents and
papers relating thereto shall be reasonably satisfactory to Alliance and
its special counsel. Alliance and its special counsel shall have received
copies of such documents and papers as they may reasonably request of OCBC
or Eastern in connection with the Closing or as a basis for such special
counsel's closing opinion, all in form and substance satisfactory to
Alliance and its special counsel.
ARTICLE V
DEFINITIONS
Section 5.1 DEFINITION OF CERTAIN TERMS. The terms defined in
this Section 5.1, whenever used in this Agreement, shall have the respective
meanings indicated below for all purposes of this Agreement.
ADVISERS ACT: the United States Investment Advisers Act of 1940,
as amended from time to time, and the rules and regulations of the Commission
promulgated thereunder.
AFFILIATE: of a Person means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first Person, including but not limited to a Subsidiary
of the first Person, a Person of which the first Person is a Subsidiary, or
another Subsidiary of a Person of which the first Person is also a Subsidiary.
"Control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management policies of a Person, whether through the
ownership of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise.
ALLIANCE GROUP: Alliance and its Subsidiaries either directly
or indirectly wholly-owned by Alliance on the date hereof or acquired
thereafter.
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APPLICABLE LAW: all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common law), rules,
regulations, ordinances or orders of any Governmental Authority, (ii)
Governmental Approvals, and (iii) orders, decisions, injunctions, judgments,
awards and decrees of or agreements with any Governmental Authority.
ASEAN: a member country of the Association of Southeast Asian
Nations as of the date of this Agreement.
COMMISSION: the United States Securities and Exchange Commission.
CONSENT: any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of,
registration, declaration or filing with, or report or notice to, any Person,
including but not limited to any Governmental Authority and including the
expiration of any waiting or other time period after which the consent or
acquiescence of the Person in question may be assumed or relied upon.
FINANCIAL STATEMENTS: for any fiscal period, the consolidated
financial statements of Alliance as at and for such fiscal period, as set forth
in the Annual Report or Form 10-Q of Alliance, as the case may be, together, in
the case of year end statements, with reports on such statements by the
independent public accountants of Alliance including a statement of financial
condition, a statement of income, a statement of changes in partners' capital
and a statement of cash flows.
GENERAL PARTNER: Alliance Capital Management Corporation, a
Delaware corporation.
GOVERNMENTAL APPROVAL: 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.
GOVERNMENTAL AUTHORITY: any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including, without limitation, any government authority, agency,
department, board, commission or instrumentality of the United States or State
of the United States thereof, any
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tribunal or arbitrators of competent jurisdiction, and any self-regulatory
organization.
INVESTMENT COMPANY ACT: the United States Investment Company Act
of 1940, as amended from time to time, and the rules and regulations of the
Commission promulgated thereunder.
OCBC GROUP: OCBC and all of its direct or indirect Wholly-Owned
Subsidiaries.
OCBC PERSON: Any member of the OCBC Group which owns or acquires
OCBC Units and any OCBC Transferee (as that term is defined in Exhibit A hereto)
so long as any such Person (as that term is defined in Exhibit A hereto) owns
Registrable Securities (as that term is defined in Exhibit A hereto).
SECURITIES ACT: the United States Securities Act of 1933, as
amended from time to time, and the rules and regulations of the Commission
promulgated thereunder.
SUBSIDIARIES: each corporation or other Person in which a Person
and/or its Subsidiaries own or control, directly or indirectly, capital stock or
any other equity interests representing more than 50% of the outstanding voting
stock (or other means of electing a majority of the Board of Directors) or other
equity interests.
WHOLLY-OWNED SUBSIDIARY: a corporation or other Person in which a
Person and/or its Wholly-Owned Subsidiaries own or control, directly or
indirectly, capital stock or any other equity interests representing 100% of the
outstanding voting stock (or other means of electing a majority of the Board of
Directors) or other equity interests.
ARTICLE VI
MISCELLANEOUS
Section 6.1 GOVERNING LAW. The interpretation and construction
of this Agreement, and all matters relating hereto, shall be governed by the
laws of the State of New York without regard to the conflict of laws provisions
thereof.
Section 6.2 COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be
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deemed to be an original, and all of which together shall be deemed to be one
and the same instrument.
Section 6.3 NOTICES. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in
person or mailed, certified or registered mail with postage prepaid, or sent by
telex, telegram or facsimile, as follows:
If to Alliance:
Alliance Capital Management L.P.
1345 Avenue of the Americas
New York, New York 10105
Facsimile No.: 212-554-4613
Attention: David R. Brewer, Jr.
Senior Vice President
and General Counsel
with a copy to: Myles R. Itkin
Senior Vice President and
Chief Financial Officer
If to OCBC:
Oversea-Chinese Banking
Corporation Limited
65 Chulia Street
OCBC Centre
Singapore 0104
Facsimile No.: 65-533-8077
Attention: Elizabeth Sam
Senior Executive
Vice President
with a copy to: Than Aung
Senior Vice President & Company
Secretary/Legal Officer
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If to Eastern:
Eastern Holdings Limited
50/F Hopewell Centre
183 Queen's Road East
Hong Kong
Facsimile No.: (852) 845 3439
Attention: Na Wu Beng
Chairman
or to such other Person or address as any party hereto shall specify in writing
to each of the other parties. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the first business day
after the date of delivery unless if mailed, in which case on the seventh
business day after the mailing thereof except for a notice of a change of
address, which shall be effective only upon receipt thereof.
Section 6.4 PUBLIC ANNOUNCEMENTS. Prior to the Closing,
Alliance and OCBC will consult with one another before issuing any press release
or otherwise making any public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such press release or
make any such public statement prior to such consultation or, after such
consultation, if the other party is not reasonably satisfied with the text of
such release or statement, except as may otherwise be required by Applicable
Law.
-16-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed in their respective names by a duly authorized and empowered
person, all as of the day and year first above written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its General Partner
By /s/ Dave Williams
----------------------------
Name: DAVE WILLIAMS
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
OVERSEA-CHINESE BANKING CORPORATION
LIMITED
By /s/ Dr. Tony Tan Keng Yam
----------------------------
Name: DR. TONY TAN KENG YAM
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICE
EASTERN HOLDINGS LIMITED
By /s/ Benny Goh
----------------------------
Name: BENNY GOH
Title: DIRECTOR
-17-
EXHIBIT A
REGISTRATION RIGHTS
1. DEFINITIONS. Capitalized terms defined in the Agreement to
which this Exhibit A is attached shall have the meanings set forth therein. In
addition, the following capitalized terms shall have the following respective
meanings:
EXCHANGE ACT - The United States Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder.
OCBC TRANSFEREE - As set forth in Section 10 hereof.
OFFICERS' CERTIFICATE - A certificate signed by the Chairman of
the Board, the President, any Executive Vice President or any Senior Vice
President of the General Partner.
PERSON - Any individual, corporation, partnership, trust,
organization, association, governmental body or agency.
REGISTRABLE SECURITIES - The OCBC Units owned by any OCBC Person,
any Units which may be issued or distributed in respect thereof by way of Unit
subdivision or combination or otherwise, recapitalization, merger, consolidation
or reclassification or other reorganization or otherwise. A Registrable
Security shall cease to be a Registrable Security when: (i) a registration
statement with respect to the sale of such security shall have become effective
under the Securities Act and such security shall have been disposed of in
accordance with such registration statement or any failure to so dispose of such
security shall be attributable only to (x) reasons solely within the control of
such OCBC Persons or (y) a failure of an underwriter or an OCBC Person under
normal market conditions to locate a purchaser for such security; (ii) such
security shall have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act; or (iii) such security shall have
been otherwise transferred, and a new certificate or new certificates for such
security not bearing a legend
EXHIBIT A
Page 2
restricting further transfer shall have been delivered by Alliance in accordance
with Section 3.5 of the Agreement.
REGISTRATION RIGHTS - The rights set forth in this Exhibit A.
2. DEMAND REGISTRATION. (a) After the expiration of the Holding
Period, upon the proper written request of OCBC or any OCBC Transferee (provided
that, such request by an OCBC Transferee may only be made with the prior written
approval of OCBC at any time that any member of the OCBC Group owns any
Registrable Securities) requesting that Alliance effect the registration under
the Securities Act of all or part of the Registrable Securities owned by all
OCBC Persons specified in such request and specifying the intended method of
disposition thereof, but subject to the limitations set forth herein, Alliance
will promptly (but in no event more than five business days after the receipt of
such request) give written notice of such requested registration to all OCBC
Transferees, if any, other than a requesting OCBC Transferee, and Alliance shall
file with the Commission as promptly as practicable after sending such notice,
and use its best efforts to cause to become effective, a registration statement
under the Securities Act registering the offering and sale of:
(i) the Registrable Securities which Alliance has been so requested
to register by such OCBC Person, and
(ii) all other Registrable Securities which Alliance has been
requested to register by any other OCBC Person by written request given to
Alliance within 30 days after the giving of such written notice by
Alliance (which request shall specify the intended method of disposition
of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered (a "Demand Registration"); PROVIDED, that Alliance shall not be
obligated to file a registration statement pursuant to this Section 2(a), (i)
with respect to more than an aggregate of two registrations, (ii) less than six
months after a previous registration statement filed pursuant to this Section
2(a)
EXHIBIT A
Page 3
has been declared effective, (iii) with respect to Registrable Securities which,
as of the date of receipt of the written request to register, have an aggregate
market value of less than $15,000,000 or (iv) if all, but not less than all, of
the Registrable Securities requested to be registered could, on the date of such
request, be disposed of by the owners thereof pursuant to Rule 144 under the
Securities Act. For purposes of the preceding sentence, references to "market
value" of securities that are listed for trading on the New York Stock Exchange
shall be the market value based on the closing price on the New York Stock
Exchange on the applicable date.
(b) If the OCBC Person so elects (provided that such election,
including the choice of underwriter from the list referred to below, may only be
made with the prior written approval of OCBC at any time that any member of the
OCBC Group owns any Registrable Securities), a requested registration pursuant
to this Section 2 shall be in the form of an underwritten offering through the
underwriters represented by one or more lead underwriters of national reputation
selected by OCBC or the requesting OCBC Transferee, as the case may be, from a
list of at least four underwriters prepared by Alliance. If a requested
registration pursuant to this Section 2 involves an underwritten offering and
any lead underwriter advises Alliance in writing that, in its opinion, the
number of securities requested to be included in such registration (including
securities of Alliance which are not Registrable Securities) exceeds the number
which can be sold in such offering without a significant adverse effect on the
price, timing or distribution of the Registrable Securities offered, Alliance
will (subject to the last sentence of this paragraph) include in such
registration only the Registrable Securities requested to be included in such
registration. In the event that the number of Registrable Securities requested
to be included in such registration exceeds the number which, in the opinion of
any lead underwriter, can be sold without a significant adverse effect on the
price, timing or distribution of the Registerable Securities offered, then
Alliance will include in such registration the number of Registrable Securities
which, in the opinion of each lead underwriter, can be sold, such number to be
allocated by OCBC or, if no member of the OCBC Group owns any Registrable
Securities, by the requesting OCBC Transferee, pro rata among
EXHIBIT A
Page 4
all OCBC Persons desiring to sell Registrable Securities pursuant to the
Registration Statement on the basis of the relative number of shares of
Registrable Securities then held by each such OCBC Person (provided that any
allocation to any such OCBC Person that exceeds the Registrable Securities such
OCBC Person desires to include in the registration statement shall be
reallocated among the remaining such OCBC Persons in like manner). In the event
that the number of Registrable Securities requested to be included in such
registration is less than the number which, in the opinion of any lead
underwriter, can be sold without a significant adverse effect on the price,
timing or distribution of the Registerable Securities offered, Alliance may
include in such registration the securities Alliance or any other holder of
Alliance's securities proposes to sell up to the number of securities that, in
the opinion of each lead underwriter, can be sold without an adverse effect on
the price, timing or distribution of the Registrable Securities offered.
(c) Alliance shall be entitled to postpone for a reasonable period
of time (not to exceed one hundred twenty (120) days, which may not thereafter
be extended) the filing of any registration statement otherwise required to be
prepared and filed by it pursuant to Section 2(a) hereof if, at the time it
receives a request for such registration, the Board of Directors of the General
Partner determines in good faith that such offering will materially interfere
with a pending or contemplated financing, merger, sale of assets,
recapitalization or other significant action of Alliance, in which case Alliance
shall have furnished an Officers' Certificate to that effect to OCBC (if any
OCBC Units held in the OCBC Group are to be included in such registration) and
to all OCBC Transferees which hold OCBC Units to be included in such
registration; PROVIDED, that Alliance shall not exercise the right to postpone
registration pursuant to this Section 2(c) more than once in any 12 month
period. After such period of postponement Alliance shall effect such
registration as promptly as practicable without further request from the holders
of Registrable Securities, unless the request for registration has been
withdrawn.
3. PIGGY-BACK REGISTRATION. (a) If Alliance shall at any time
after expiration of the Holding Period propose to file a registration statement
under the Securities Act for an offering of Units of Alliance of the same class
as
EXHIBIT A
Page 5
the OCBC Units for cash (other than an offering relating to (i) a business
combination that is to be filed on Form S-4 under the Securities Act (or any
successor form thereto) or (ii) an employee benefit plan), Alliance shall
provide prompt written notice of such proposal, in any event, not less than 20
days before the anticipated filing date, to OCBC (if any member of the OCBC
Group owns any Registrable Securities) and to all OCBC Transferees of its
intention to do so. Alliance shall use its best efforts to include such number
of Registrable Securities in such registration statement which Alliance is
requested to register by OCBC or any OCBC Transferee (a "Piggy-back
Registration"), which request shall be made to Alliance within 15 days after
such OCBC Persons receive notice from Alliance of such proposed registration;
PROVIDED, that (i) if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, Alliance
shall determine for any reason not to register such securities, Alliance may, at
its election, give written notice of such determination to OCBC (if any member
of the OCBC Group owns any Registrable Securities) and to all OCBC Transferees
and, thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the registration expenses referred to in Section 6 incurred in connection
therewith), and (ii) if such registration involves an underwritten offering, all
holders of Registrable Securities requesting to be included in Alliance's
registration must sell their Registrable Securities to the underwriters selected
by Alliance on the same terms and conditions as apply to Alliance, with such
differences, including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary and secondary
offerings. Any OCBC Person submitting a request pursuant to this Section 3 to
include Registrable Securities in a registration may elect, by written notice no
later than seven days prior to the anticipated effective date of the
registration statement filed in connection with such registration, not to have
such securities registered in connection with such registration. In the event
that any notice described in the previous sentence is given to Alliance, the
OCBC Person giving such notice will bear all incremental costs incurred by
Alliance in connection with such registration resulting from the
EXHIBIT A
Page 6
inclusion of the Registrable Securities that were not so registered.
(b) If a registration pursuant to this Section 3 involves an
underwritten offering and a lead underwriter advises Alliance in writing that,
in its opinion, the number of securities to be included in such registration
exceeds the number which can be sold in such offering without an adverse effect
on the price, timing or distribution of such offering, then the number of
securities which all holders of Alliance's securities (including OCBC Persons)
have requested to be included in such registration pursuant to this Section 3 or
pursuant to "piggy-back" registration rights similar to those set forth in this
Section 3 shall be reduced as necessary pro rata in proportion to the relative
number of securities requested by each such holder to be included until the
number of securities to be included in such registration no longer exceeds the
number which can be sold in such offering.
(c) No registration effected under this Section 3 shall be deemed
to have been effected pursuant to Section 2 hereof or shall release Alliance of
its obligation to effect any registration upon request under Section 2 hereof.
4. NO INCONSISTENT AGREEMENTS. Alliance will not enter into any
agreement with respect to its securities which conflicts with the obligations of
Alliance pursuant to these Registration Rights.
5. REGISTRATION PROCEDURES. Whenever any Registrable Securities
are to be registered pursuant to Section 2 or 3 of these Registration Rights,
Alliance will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto Alliance will as expeditiously as
reasonably possible:
(a) prepare and file with the Commission as soon as practicable but
not later than 120 days after a receipt of a request to file such
registration statement, a registration statement with respect to such
Registrable Securities on a registration form appropriate for such
registration and use its best efforts to cause such registration statement
to become effective; provided that before filing a registration
EXHIBIT A
Page 7
statement or prospectus or any amendments or supplements thereto, Alliance
will furnish to OCBC if it is requesting registration, and to any OCBC
Transferee requesting registration, pursuant to Section 2 or 3 of these
Registration Rights and the underwriters, if any, draft copies of all such
documents proposed to be filed; if such requested registration is pursuant
to Section 2 of these Registration Rights, such documents shall be so
furnished a reasonable time prior to the filing thereof and will be
subject to the reasonable review of such OCBC Persons, the underwriters,
if any, and their respective agents and representatives and Alliance will
not file any such registration statement or amendment thereto or any
prospectus or any supplement thereto (including such documents
incorporated by reference) to which any such OCBC Person shall reasonably
object;
(b) notify the OCBC Persons requesting such registration or their
United States counsel, if any, identified by written notice to Alliance as
representing them in connection with such registration and (if requested)
confirm such advice in writing, as soon as practicable after notice
thereof is received by Alliance (i) when the registration statement or any
amendment thereto has been filed or becomes effective, and when the
prospectus or any amendment or supplement to the prospectus has been
filed, (ii) of any request by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional
information, (iii) of any stop order issued or threatened by the
Commission in connection therewith, (iv) if at any time prior to the
effectiveness of the registration statement or while Registrable
Securities are being sold thereunder the representations and warranties of
Alliance contemplated by Section 8 cease to be true and correct, and (v)
of the receipt by Alliance of any notification with respect to the
suspension of the qualification of the Registrable Securities for offering
or sale in any United States jurisdiction or the initiation or threatening
of any proceeding for such purpose;
(c) prepare and file with the Commission such amendments,
post-effective amendments and supplements to such registration statement
and the prospectus used in
EXHIBIT A
Page 8
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 90 days (or such shorter
period which will terminate when all Registrable Securities covered by
such registration statement have been sold or withdrawn, but not prior to
the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable), cause the
prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such registration statement;
(d) furnish to each OCBC Person requesting such registration and
the underwriter or underwriters, if any, without charge, one signed copy
and such number of conformed copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and any
amendments or supplements thereto, any documents incorporated by reference
therein and such other documents as any such OCBC Person or such
underwriter may reasonably request to facilitate the disposition of the
Registrable Securities (it being understood that Alliance consents to the
use of the prospectus (including the preliminary prospectus) and any
amendment or supplement thereto by the OCBC Persons selling Registrable
Securities pursuant to such registration statement and the underwriter or
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any amendment or
supplement thereto);
(e) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such United States jurisdictions as the OCBC Persons requesting such
registration reasonably request and do any and all other acts and things
that may reasonably be necessary or advisable to enable the OCBC Persons
selling Registrable
EXHIBIT A
Page 9
Securities pursuant to such registration statement to consummate the
disposition in such jurisdictions of the Registrable Securities owned by
such OCBC Persons (provided that Alliance will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(f) notify the OCBC Persons requesting such registration, at any
time when a prospectus relating to such Registrable Securities is required
to be delivered under the Securities Act, of the occurrence of any event
as a result of which the prospectus included in such registration
statement (as then in effect) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and, as promptly as possible thereafter, prepare and file with
the Commission a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(g) make generally available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
no later than 60 days after the end of the 12-month period beginning with
the first day of Alliance's first fiscal quarter commencing after the
effective date of the registration statement, which earnings statement
shall cover said 12-month period, and which requirement will be deemed to
be satisfied if Alliance timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies
with Rule 158 under the Securities Act as soon as possible;
(h) use its best efforts to cause all such Registrable Securities
to be listed or admitted for trading on the principal securities exchange
or
EXHIBIT A
Page 10
quotation system on which securities issued by Alliance that are of the
same class as the Registrable Securities are then listed or admitted;
(i) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(j) to the extent necessary to enable the indicated Persons to
comply with their respective obligations under the Securities Act, make
available for inspection by any OCBC Person requesting such registration,
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such OCBC Person or underwriter all financial and other
records, pertinent corporate documents and properties of Alliance, and
cause Alliance's officers, directors, employees and independent certified
public accountants to supply all such information reasonably requested by
any such OCBC Person, underwriter, attorney, accountant or agent in
connection with such registration statement;
(k) obtain a "cold comfort" letter and updates thereof from
Alliance's independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort" letters;
and
(l) if underwriters are engaged in connection with any registration
referred to in these Registration Rights, Alliance shall enter into
underwriting or other agreements providing indemnification,
representations, covenants, opinions and other assurance to the
underwriters in customary form and covering matters of the type
customarily covered in such underwriting or other agreements.
Alliance may require each OCBC Person desiring to sell Registrable
Securities pursuant to a registration pursuant to Section 2 or 3 to furnish to
Alliance such information regarding the distribution of such securities and such
other information relating to such OCBC Person and its ownership of Registrable
Securities as Alliance may from time to time reasonably request in writing.
Each such OCBC Person
EXHIBIT A
Page 11
shall furnish such information to Alliance and to cooperate with Alliance as
necessary to enable Alliance to comply with the provisions of these Registration
Rights.
Upon receipt of any notice from Alliance of the happening of any
event of the kind described in subsection (f) of this Section 5, the OCBC
Persons selling Registrable Securities will forthwith discontinue disposition of
the Registrable Securities until receipt of the copies of the supplemented or
amended prospectus contemplated by subsection (f) of this Section 5 or until the
OCBC Persons requesting such registration are advised in writing (the "Advice")
by Alliance that the use of the prospectus may be resumed, and have received
copies of any additional or supplemental filings which are incorporated by
reference in the prospectus and, if so directed by Alliance, such OCBC Persons
will deliver to Alliance (at Alliance's expense) all copies, other than
permanent file copies then in each such OCBC Person's possession of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event that Alliance shall give any such notice, the
period mentioned in the subsection (c) of this Section 5 shall be extended by
the number of days during the period from and including the date of the giving
of such notice to and including the date when each OCBC Person shall have
received the copies of the supplemented or amended prospectus contemplated by
subsection (f) of this Section 5 or the Advice.
6. REGISTRATION EXPENSES. (a) All expenses incident to
Alliance's performance of or compliance with these Registration Rights
including, without limitation, all Commission and securities exchange or NASD
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), rating
agency fees, printing expenses, messenger and delivery expenses, internal
expenses (including without limitation, all salaries and expenses of Alliance's
officers and employees performing legal or accounting duties), the fees and
expenses incurred in connection with the listing of the securities to be
registered, if any, on the principal securities exchange on which similar
securities issued by Alliance are then listed and reasonable fees and
disbursement of counsel for Alliance
EXHIBIT A
Page 12
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), Securities Act liability insurance (if Alliance elects to obtain
such insurance), the reasonable fees and expenses of any special experts
retained by Alliance in connection with such registration, reasonable fees and
expenses of one (but not more than one) counsel and accountant with respect to
all OCBC Persons incurred in connection with each registration hereunder (but
not including any underwriting fees, discounts or commissions attributable to
the sale of Registrable Securities which shall be paid by OCBC Persons) and any
reasonable out-of-pocket expenses of OCBC Persons (all such expenses being
herein called "Registration Expenses") will be borne by Alliance.
(b) Notwithstanding anything to the contrary in the immediately
preceding paragraph, in connection with (i) a Demand Registration pursuant to
Section 2 hereof occurring after expiration of the Holding Period and (ii) a
Piggy-back Registration pursuant to Section 3 hereof, the OCBC Persons
requesting such registration shall be responsible for the fees and expenses of
their own counsel and accountants and other out-of-pocket expenses of OCBC
Persons incurred in connection with such registration.
7. TERM. For so long as any OCBC Person owns any of the
Registrable Securities, the rights and obligations of OCBC and such OCBC Person
under these Registration Rights shall remain in effect.
8. UNDERWRITTEN OFFERINGS. (a) Any OCBC Person (provided that,
such demand may only be made with the prior written approval of OCBC at any time
that OCBC or any of its Affiliates owns any Registrable Securities) may require
that any registration pursuant to Section 2 be an underwritten registration. In
the event such a registration is an underwritten offering, Alliance will enter
into an underwriting agreement with the lead underwriter or underwriters for
such offering, which lead underwriter or underwriters shall be selected in the
manner set forth in Section 2(b) and which underwriting agreement shall be in
customary form as described in Section 5(l). OCBC Persons selling Registrable
Securities in such offering shall be party to such underwriting agreement and
may require that any
EXHIBIT A
Page 13
or all of the representations and warranties by, and the other agreements on the
part of, Alliance to and for the benefit of such underwriters shall also be made
to and for the benefit of such OCBC Persons and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such OCBC
Persons.
(b) No OCBC Person may participate in any registration hereunder
that is underwritten unless such OCBC Person (a) agrees to sell such OCBC
Person's securities on the basis provided in any underwriting arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
9. INDEMNIFICATION. (a) In connection with any offering of
Registrable Securities pursuant to Section 2 or 3 hereof, Alliance shall
indemnify, to the fullest extent permitted by law, each OCBC Person whose
Registrable Securities are sold in such offering, each of their officers and
directors and each person who controls such OCBC Person (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities and
expenses (including reasonable attorney's fees and expenses) imposed upon or
incurred by such indemnified person arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto under which such Registrable Securities were registered under
the Securities Act or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made, except
insofar as such untrue statement or alleged untrue statement or omission or
alleged omission was (i) made in such registration statement, preliminary
prospectus, prospectus, amendment or supplement in reliance upon any written
information furnished in writing to Alliance or its attorneys, accountants or
representatives, by such OCBC Person for use therein or (ii) made in any
preliminary prospectus that is corrected in the prospectus (or any amendment or
supplement thereto).
EXHIBIT A
Page 14
(b) Each OCBC Person whose Registrable Securities are sold in any
offering pursuant to Section 2 or 3 hereof, severally but not jointly agrees
(except that all OCBC Persons who are members of the OCBC Group severally and
jointly agree with respect to the obligations of any such member under this
Section 9(b)) to indemnify, to the fullest extent permitted by law, Alliance,
the other OCBC Persons whose Registrable Securities are sold in such offering,
their respective officers, directors and employees and each other person, if
any, who controls Alliance or such other OCBC Persons (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
(including attorney's fees) caused by any untrue or alleged untrue statement of
a material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto under
which such Registrable Securities were registered under the Securities Act or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such registration
statement, preliminary prospectus, prospectus, amendment or supplement in
reliance upon any written information furnished in writing to Alliance or its
attorneys, accountants or representatives by the OCBC Person expressly for use
therein. In no event shall the liability of any OCBC Person hereunder be an
amount greater than the dollar amount of the proceeds received by such OCBC
Person upon the sale of the Registrable Securities giving rise to such
indemnification obligation (or, in the case of any such OCBC Person who is a
member of the OCBC Group, an amount equal to the aggregate of all such proceeds
of all such members).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action threatened or commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of the indemnity agreement provided in this Section 9.
In case of any notice under this indemnity agreement with respect to any loss,
liability, claim, damage or expense with respect to any claim made against an
indemnified person, the indemnifying party shall
EXHIBIT A
Page 15
be entitled to participate at its own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, jointly with any other
indemnifying party similarly notified, to assume the defense of any such claim;
but if it so elects to assume the defense, such defense shall be conducted by
counsel chosen by the indemnifying party and approved by the indemnified party,
whose approval may not be unreasonably denied. If the indemnifying party does
not elect within a reasonable time after receipt of such notice to assume the
defense of any such claim, the indemnified party shall be entitled to assume the
control of such defense, in which case the reasonable fees and expenses incurred
by such indemnified party in the conduct of such defense, including the
reasonable fees and expenses of counsel, shall be reimbursed by the indemnifying
party as the same are incurred from time to time by such indemnified party. If
the indemnifying party elects to assume the defense and retain such counsel, the
indemnified party shall bear the reasonable fees and expenses of any additional
counsel thereafter retained by such indemnified party; PROVIDED, HOWEVER,
that such indemnified party shall have the right to employ counsel to represent
it or any person who controls it who may be subject to liability arising out of
any action in respect of which indemnity may be sought against the indemnifying
party if, in the reasonable judgment of the indemnified party's counsel, there
may be a conflict of interest between the indemnifying party and the indemnified
party or such control person, in which event the reasonable fees and expenses of
appropriate separate counsel shall be borne by the indemnifying party. In no
event shall an indemnifying party be liable for the fees and expenses of more
than one counsel for an indemnified party (in addition to local counsel) in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 9 from the
indemnifying party is unavailable to any indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is
EXHIBIT A
Page 16
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action; PROVIDED,
HOWEVER, that in no event shall the amount contributed by any OCBC Person
hereunder be an amount greater than the dollar amount of the proceeds received
by such OCBC Person upon the sale of the Registrable Securities giving rise to
such contribution obligation. The amount paid or payable by a party under this
Section 9 as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any reasonable legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 9(d) were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein.
10. OCBC TRANSFEREES. Any Person, other than a member of the
OCBC Group, acquiring from a member of the OCBC Group any Registrable
Securities, except for transferees acquiring Registrable Securities in an
offering registered under the Securities Act or in a sale made pursuant to Rule
144 under the Securities Act, may elect, within 30 days of the date of the
transfer to it of such Registrable Securities, to become entitled to these
Registration Rights by sending written notification of such election to Alliance
and OCBC (each such person, upon such election and so long as it holds
Registrable Securities, being herein called an "OCBC Transferee"). Each such
OCBC Transferee shall be bound by the terms of these Registration Rights and
shall hold such Registrable Securities with all the rights conferred, and
subject to all obligations and restrictions imposed, hereby.
EXHIBIT A
Page 17
11. COVENANTS RELATING TO RULE 144. Alliance covenants that it
shall use its best efforts to file the reports required to be filed by it under
the Exchange Act and the rules and regulations of the Commission thereunder for
so long as Alliance is obligated to file such reports (or, if Alliance ceases to
be required to file such reports, it shall, upon the request of OCBC or any OCBC
Transferee, make publicly available other information so that Rule 144 shall be
available to OCBC Persons, and it shall, if feasible, take such further action
as OCBC or any OCBC Transferee may reasonably request, all to the extent
required from time to time to enable OCBC Persons to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemption provided by (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (b) any similar rules or regulations hereafter
adopted by the Commission. Upon the request of OCBC or any OCBC Transferee,
Alliance shall deliver to such OCBC Person a written statement as to whether it
has complied with such requirements.
EXHIBIT B
[Form of Opinion of Seward & Kissel]
Capitalized terms used herein shall have the meanings assigned to
such terms in the Unit Purchase Agreement.
1. Alliance is a limited partnership organized under the Delaware
Revised Uniform Limited Partnership Act, as amended, validly existing and in
good standing under the laws of the State of Delaware. Alliance has the power
and authority to execute and deliver the Unit Purchase Agreement, to perform its
obligations thereunder, and to consummate the transactions contemplated thereby.
The execution and delivery of the Unit Purchase Agreement and the consummation
of the transactions contemplated thereby have been duly authorized by all
requisite action by Alliance and the General Partner, and, assuming due
authorization, execution and delivery by the other parties thereto, the Unit
Purchase Agreement constitutes the valid and legally binding obligation of
Alliance, enforceable against Alliance in accordance with its terms, subject to
the qualification that the enforceability of Alliance's obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights and to
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law.
2. The execution and delivery by Alliance of the Unit Purchase
Agreement and the consummation of the transactions contemplated thereby will
not: (i) conflict with or result in any breach of any provision of the Limited
Partnership Agreement, (ii) to the knowledge of such counsel, conflict with or
result in any breach of or default under any provision of any material contract,
agreement or investment of any kind to which Alliance is a party or by which
Alliance or any of its assets or properties is bound or (iii) result in any
conflict with New York, Delaware or United States federal law.
3. Except for the approval of the New York Stock Exchange of the
listing of the OCBC Units, which has been given subject only to official notice
of issuance, and any Consent or Governmental Approval which has been obtained,
no
EXHIBIT B
Page 2
Consent or Governmental Approval is required to be obtained by Alliance in
connection with the execution and delivery by Alliance of the Unit Purchase
Agreement, the performance of its obligations thereunder, and the consummation
of the transactions contemplated thereby.
4. The OCBC Units to be issued to Eastern at the Closing have been
duly authorized and, when issued to Eastern pursuant to the Unit Purchase
Agreement, will be validly issued, free and clear of any liens, encumbrances,
equities or claims. Subject only to the provisions of Applicable Law, Eastern,
as holder of such OCBC Units, will have no liability to Alliance or any of its
creditors. The issuance of the OCBC Units to Eastern is not subject to
preemptive rights of any partner in, or any Affiliate or creditor of, Alliance
or any other person. The issuance and delivery of the OCBC Units by Alliance do
not and will not conflict with or breach any term or provision of or constitute
a default under the Limited Partnership Agreement or the certificate of limited
partnership, or, to the knowledge of such counsel, any other material agreement
or instrument to which Alliance is a party or by which any of Alliance's
properties is bound or any applicable New York, Delaware or United States
federal law, rule, regulation, judgment, order or decree of any government,
governmental agency or instrumentality or court having jurisdiction over
Alliance or any of its properties.
5. Subject to and in reliance upon the representation given in
Section 3.1 of the Unit Purchase Agreement, the issuance of the OCBC Units by
Alliance pursuant to the Unit Purchase Agreement will be exempt from
registration under the Securities Act.
In rendering the opinion set forth in paragraph 4 above with respect
to matters of Delaware law we have, with your approval, expressed our opinion in
reliance upon the opinion of Morris, Nichols, Arsht & Tunnell, dated the date
hereof and attached to this opinion. Our opinion in paragraph 2 as to matters
of Delaware law is subject to the same assumptions and qualifications as set
forth in the opinion of Morris, Nichols, Arsht & Tunnell.
EXHIBIT C
[Form of Opinion of White & Case]
Capitalized terms used herein shall have the meanings assigned to
such terms in the Unit Purchase Agreement.
1. Alliance is a limited partnership organized under the Delaware
Revised Uniform Limited Partnership Act, as amended, validly existing and in
good standing under the laws of the State of Delaware. Alliance has the power
and authority to execute and deliver the Unit Purchase Agreement, to perform its
obligations thereunder, and to consummate the transactions contemplated thereby.
The execution and delivery of the Unit Purchase Agreement and the consummation
of the transactions contemplated thereby have been duly authorized by all
requisite action by Alliance and the General Partner, and, assuming due
authorization, execution and delivery by the other parties thereto, the Unit
Purchase Agreement constitutes the valid and legally binding obligation of
Alliance, enforceable against Alliance in accordance with its terms, subject to
the qualification that the enforceability of Alliance's obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights and to
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law.
2. The OCBC Units to be issued to Eastern at the Closing have been
duly authorized and, when issued to Eastern pursuant to the Unit Purchase
Agreement, will be validly issued, free and clear of any liens, encumbrances,
equities or claims. The issuance and delivery of the OCBC Units by Alliance do
not and will not conflict with or breach any term or provision of or constitute
a default under the Limited Partnership Agreement or the certificate of limited
partnership.
3. Subject to and in reliance upon the representation given in
Section 3.1 of the Unit Purchase Agreement, the issuance of the OCBC Units by
Alliance pursuant to the Unit Purchase Agreement will be exempt from
registration under the Securities Act.