CONVERTIBLE NOTE PURCHASE AGREEMENT
dated
August 11, 1994
between
BANCO BILBAO VIZCAYA, S.A.
and
ALLIANCE CAPITAL MANAGEMENT L.P.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
PURCHASE AND SALE; CONVERSION
2.1 PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 CONVERSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 POWER AND AUTHORIZATION . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 CONSENTS AND GOVERNMENTAL AUTHORIZATION . . . . . . . . . . . . . . . . 7
3.4 NON-CONTRAVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 FEDERAL AND STATE SECURITIES LAWS . . . . . . . . . . . . . . . . . . . 8
3.6 UNITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.9 ABSENCE OF CERTAIN CHANGES. . . . . . . . . . . . . . . . . . . . . . . 10
3.10 FINDERS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 CORPORATE AUTHORIZATION . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 GOVERNMENTAL AUTHORIZATION. . . . . . . . . . . . . . . . . . . . . . . 11
4.4 NON-CONTRAVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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ARTICLE 5
TRANSFER AND OWNERSHIP OF CONVERTIBLE NOTE AND UNITS
5.1 PURCHASE FOR INVESTMENT . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 LEGEND ON CONVERTIBLE NOTE AND BBV UNITS. . . . . . . . . . . . . . . . 12
5.4 DISTRIBUTIONS WITH RESPECT TO BBV UNITS . . . . . . . . . . . . . . . . 13
5.5 LISTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 RIGHT OF FIRST REFUSAL. . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 6
CONDITIONS TO CLOSING
6.1 CONDITION TO OBLIGATIONS OF BUYER AND SELLER. . . . . . . . . . . . . . 14
6.2 CONDITIONS TO OBLIGATION OF BUYER . . . . . . . . . . . . . . . . . . . 14
6.3 CONDITIONS TO OBLIGATION OF SELLER. . . . . . . . . . . . . . . . . . . 16
ARTICLE 7
SURVIVAL
7.1 SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 8
TERMINATION
8.1 GROUNDS FOR TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 AMENDMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . 19
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9.3 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.4 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . . . 19
9.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.6 COUNTERPARTS; THIRD PARTY BENEFICIARIES . . . . . . . . . . . . . . . . 19
9.7 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.8 PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 20
EXHIBITS
Exhibit A Convertible Note
Exhibit B Registration Rights
Exhibit C Opinion of Seller's Counsel
Exhibit D Opinion of Buyer's Counsel
Exhibit E Board Representation Agreement
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CONVERTIBLE NOTE PURCHASE AGREEMENT
AGREEMENT dated August 11, 1994 between BANCO BILBAO VIZCAYA, S.A., a
banking corporation incorporated under the laws of the Kingdom of Spain
("Buyer"), and ALLIANCE CAPITAL MANAGEMENT L.P., a limited partnership formed
under the laws of the State of Delaware ("Seller").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. (a) The following terms, as used herein, have the
following meanings:
"Advisers Act" means the United States Investment Advisers Act of
1940, as amended, and the rules and regulations promulgated thereunder.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"Alliance Group" means Seller and its consolidated Subsidiaries on the
date hereof or thereafter acquired.
"BBV Person" means Buyer or any of its Subsidiaries that owns or
acquires BBV Units and any BBV Transferee (as that term is defined in Exhibit B
hereto) so long as any such Person owns Registrable Securities (as that term is
defined in Exhibit B hereto).
"Board Representation Agreement" means an agreement between Equitable
Investment Corporation and Buyer substantially in the form of Exhibit E hereto,
pursuant to which Buyer shall be entitled to designate a member of the board of
directors of the General Partner.
"Closing Date" means the date of the Closing.
"Convertible Note" means a convertible note of Seller substantially in
the form of Exhibit A hereto.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership
Act, as amended.
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"DGEITE" means DIRECCION GENERAL DE ECONOMIA INTERNACIONAL Y
TRANSACCIONES EXTERIORES.
"DGEITE Condition" means the verification of Buyer's acquisition of
the BBV Units, whether (i) by express confirmation from the DGEITE to Buyer that
such acquisition is verified, (ii) automatically upon expiration of the notice
period applicable to such acquisition or (iii) in any other manner established
by Spanish law.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"General Partner" means Alliance Capital Management Corporation, a
Delaware corporation.
"Investment Advisory Services Agreement" means the Investment Advisory
Services Agreement dated as of February 14, 1994 between Seller and Buyer, as
amended from time to time.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest or encumbrance in respect of such
property or asset.
"Limited Partnership Interests" has the meaning set forth in the
Partnership Agreement.
"Madrid Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Madrid are authorized by law to close.
"New York Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Partnership Agreement" means the Agreement of Limited Partnership of
Alliance Capital Management L.P. dated as of November 19, 1987 (As Amended And
Restated), as in effect on the date hereof.
"Person" means an individual, corporation, partnership, joint venture,
association, trust, estate, limited liability company or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Subsidiary" means, with respect to any Person, any
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entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
"Unit" has the meaning set forth in the Partnership Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
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"Acquisition Quarter" 5.6
"BBV Units" 2.3
"Buyer Notice" 5.4
"Closing" 2.2
"Conversion Date" 2.3
"Conversion Notice" 2.3
"Conversion Price" 2.3
"Dilutive Event" 2.3
"Holding Period" 5.2
"Offer" 5.6
"Offer Notice" 5.6
"Offer Price" 5.6
"Offered Units" 5.6
"Purchase Price" 2.1
"Relationship Agreement" 5.4
"Seller Designated Purchaser" 5.4
"Seller Notice" 5.4
"Seller's Regulatory Filings" 3.5
"Strategic Partner" 5.4
ARTICLE 2
PURCHASE AND SALE; CONVERSION
2.1 PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, Seller shall issue and to sell the Convertible Note to Buyer
and Buyer shall purchase the Convertible Note from Seller. The purchase price
for the Convertible Note (the "Purchase Price") is U.S.$50,000,000 (fifty
million United States dollars) in cash. The Purchase Price shall be paid as
provided in Section 2.2.
2.2 CLOSING. The closing (the "Closing") of the purchase and sale of
the Convertible Note hereunder shall take place at 10:00 A.M. (New York time) at
the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
on August 12, 1994 or at such other time and place, or on such other date, as
Buyer and Seller may agree. At the Closing:
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(a) Buyer shall deliver to Seller the Purchase Price in immediately
available funds in New York City by wire transfer to an account of Seller
with a bank in New York City designated by Seller, by notice to Buyer, not
later than two New York Business Days prior to the Closing Date (or if not
so designated, then by certified or official bank check payable in
immediately available funds in New York City to the order of Seller in such
amount).
(b) Seller shall deliver to Buyer the Convertible Note, duly executed
and dated the Closing Date.
2.3 CONVERSION. (a) If, at any time during the period from and
including September 2, 1994 to and including, but not after the close of
business on, September 29, 1994, the DGEITE Condition shall have occurred, the
Convertible Note shall be converted as provided in Section 2.3(c), in whole but
not in part, at 100% of the principal amount of the Convertible Note, into a
number of Units equal to the largest whole number resulting from dividing
U.S.$50,000,000 (fifty million United States dollars) by the smaller of
(i) U.S.$20.15 and (ii) the weighted average sale price for all sales of Units
reported on the consolidated reporting system for the 30 trading days
immediately preceding September 1, 1994 (such smaller per Unit price, the
"Conversion Price"). The sales price data required to calculate the weighted
average sale price called for by clause (ii) of the preceding sentence shall be
obtained at the expense of Seller. The Units Seller is so obligated to issue to
Buyer upon conversion of the Convertible Note are referred to herein as the "BBV
Units."
(b) Notwithstanding Section 2.3(a), if the Conversion Price
calculated pursuant to Section 2.3(a) (without giving effect to any adjustment
pursuant to Section 2.3(d)) would be less than $18.00, the Convertible Note
shall not be convertible unless Seller elects otherwise by written notice to
Buyer on or before September 6, 1994.
(c) Buyer shall give notice (the "Conversion Notice") to Seller on
the later of (x) two Madrid Business Days after the day that the DGEITE
Condition occurs and (y) September 2, 1994. By giving the Conversion Notice,
Buyer shall be deemed to represent and warrant to Seller that 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 Buyer to acquire the BBV
Units upon conversion of the Convertible Note shall have been obtained,
undertaken or made, and all waiting periods shall have expired or been waived,
as the case may be. On the fifth New York Business Day following the giving of
the Conversion Notice (the "Conversion Date"), (i) Seller shall deliver to Buyer
(A) a certificate or certificates for the
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BBV Units registered in the name of Buyer and in such denominations as Buyer
shall designate in writing to Seller in the Conversion Notice and (B) if the
Conversion Notice is not given on or before September 12, 1994, accrued interest
on the Convertible Note to (but excluding) the date on which the Conversion
Notice is given in immediately available funds by wire transfer to an account of
Buyer with a bank in New York City designated by Buyer in the Conversion Notice
(or if not so designated, then by certified or official bank check payable in
immediately available funds to the order of Buyer in such amount) and (ii) Buyer
shall surrender the Convertible Note to Seller for cancellation.
(d) If, at any time the Convertible Note is outstanding,
(i) Seller shall (A) make a distribution in Units or Limited
Partnership Interests, (B) subdivide its outstanding Units or Limited
Partnership Interests into a greater number (on a Unit-equivalent basis) of
Units or Limited Partnership Interests or (C) combine its outstanding Units
or Limited Partnership Interests into a smaller number (on a Unit-
equivalent basis) of Units or Limited Partnership Interests;
(ii) Seller shall issue rights or warrants to all holders of Units
and Limited Partnership Interests entitling them to subscribe for or
purchase Units or Limited Partnership Interests at a price per Unit or
Limited Partnership Interest (on a Unit-equivalent basis) less than the
current market price per Unit (determined pursuant to the last sentence of
this subsection (d)) on the record date for the determination of holders
entitled to receive such rights or warrants; or
(iii) Seller shall distribute to substantially all holders of Units
and Limited Partnership Interests evidences of indebtedness, equity
securities (other than Units or Limited Partnership Interests) or other
assets or shall distribute to all such holders rights or warrants to
subscribe to securities (other than those referred to in paragraph (ii)
above) (each of the events described in paragraphs (i) and (ii) above and
in this paragraph (iii), a "Dilutive Event"),
then Buyer and Seller shall negotiate in good faith with a view to making
appropriate adjustments to the Conversion Price or other appropriate provisions
to reflect the impact of such Dilutive Event. If, despite such good faith
negotiations, Buyer and Seller are unable to agree on such adjustments or other
provisions, each of Buyer and Seller shall, at its own expense, retain an
investment banking firm of national reputation to recommend such adjustments or
other provisions. If such two
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investment banking firms do not make substantially similar recommendations and
neither recommendation is acceptable to both Buyer and Seller, then such
investment banking firms shall, at the equally shared expense of Buyer and
Seller, retain a third investment banking firm of national reputation to select
between the two recommendations, which selection shall be binding upon Buyer and
Seller with respect to such Dilutive Event. Solely for the purpose of
determining whether a Dilutive Event described in paragraph (ii) above has
occurred, the current market price per Unit on any date shall be deemed to be
the weighted average sale price for all sales of Units reported on the
consolidated reporting system for the 30 consecutive trading days commencing 40
trading days before the date in question.
(e) If any of the following shall occur at any time the Convertible
Note is outstanding, namely: (i) any reclassification or change of outstanding
Units issuable upon conversion of the Convertible Note (other than as a result
of a subdivision or combination), (ii) any consolidation or merger to which
Seller is a party as a result of which the holders of Units and Limited
Partnership Interests shall be entitled to receive stock, other securities or
other assets with respect to or in exchange for Units or Limited Partnership
Interests or (iii) sale or conveyance of all or substantially all of the
property or business of Seller as an entirety, then Seller shall give notice of
such occurrence to Buyer and Seller, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to Buyer an amendment to this Agreement providing that Buyer shall have
the right to convert the Convertible Note into the kind and amount of shares of
stock and other securities and property receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the number of
Units issuable upon conversion of the Convertible Note immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
amendment to this Agreement shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 2.3. The provisions of this Section 2.3(e) shall similarly apply to
successive consolidations, mergers, sales or conveyances.
(f) If the Conversion Notice is given on or before September 12,
1994, then the Convertible Note shall not bear interest. If, pursuant to
Section 2.3(b), the Convertible Note shall not be convertible, then Seller shall
be fully liable for any and all reasonable attorneys' fees incurred by Buyer in
connection with the transactions contemplated by this Agreement.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof that:
3.1 ORGANIZATION. Seller is a limited partnership formed under the
Delaware Act, validly existing and in good standing under the laws of the State
of Delaware, with full power and all licenses, authorizations, permits, consents
and approvals (governmental or otherwise) required to carry on its business as
now conducted, except where the failure to obtain such licenses, authorizations,
permits, consents and approvals would not have a material adverse effect on the
Alliance Group, taken as a whole. The Seller is duly qualified, licensed or
registered to transact business and is in good standing in each jurisdiction
where its ownership or leasing of property requires such qualification, license
or registration or where the failure to be so qualified, licensed or registered
or in good standing would have a material adverse effect on its ability to
conduct its business as currently conducted. Seller has heretofore delivered to
Buyer a true and complete copy of the Partnership Agreement and Seller's
certificate of limited partnership.
3.2 POWER AND AUTHORIZATION. The execution, delivery and performance
by Seller of this Agreement and the Convertible Note and each other agreement,
document or instrument to be delivered by it pursuant hereto or thereto, the
issuance and delivery of the BBV Units upon conversion of the Convertible Note
and the consummation of the other transactions contemplated hereby and thereby
are within Seller's power and have been duly authorized by all necessary action
on the part of Seller and the General Partner. This Agreement constitutes a
valid and binding agreement of Seller and the Convertible Note, when executed
and delivered in accordance with this Agreement, will be a valid and binding
obligation of Seller.
3.3 CONSENTS AND GOVERNMENTAL AUTHORIZATION. Except for the approval
of the New York Stock Exchange of the listing of the BBV Units, no action by or
in respect of, or filing with, any governmental body, agency, or official or
self-regulatory organization is required to be obtained by Seller in connection
with the execution, delivery and performance by Seller of this Agreement and the
Convertible Note and each other agreement, document or instrument to be
delivered by it pursuant hereto or thereto, the issuance and delivery of the BBV
Units upon conversion of the Convertible Note or the consummation of the other
transactions contemplated hereby and thereby.
3.4 NON-CONTRAVENTION. The execution, delivery and performance by
Seller of this Agreement and the Convertible Note
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and each other agreement, document or instrument to be delivered by it pursuant
hereto or thereto, the issuance and delivery of the BBV Units upon conversion of
the Convertible Note and the consummation of the other transactions contemplated
hereby and thereby do not and will not (i) violate, conflict with, or breach any
provision of the Partnership Agreement or Seller's certificate of limited
partnership, (ii) violate any applicable law, rule, regulation, judgment,
injunction, order or decree, (iii) require any consent or other action by any
Person under, constitute a breach of or default under, or give rise to any right
of termination, cancellation or acceleration of any right or obligation of
Seller or the General Partner or a loss of any benefit to which Seller or the
General Partner is entitled under, any material agreement or other instrument
binding upon Seller or the General Partner or any material license, franchise,
permit or other similar authorization held by Seller or the General Partner or
(iv) result in the creation or imposition of any Lien on any asset of Seller or
the General Partner.
3.5 FEDERAL AND STATE SECURITIES LAWS. (a) Seller is duly
registered as an investment adviser under the Advisers Act. Seller 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.
(b) Seller 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, Registrations and Amendments to Registration on Form ADV, Investment
Adviser Reports on Form ADV-S and such other filings as Seller is obligated to
make under the Exchange Act, the Securities Act, the United States Investment
Company Act of 1940, as amended, or the Advisers Act or under any applicable
state blue sky laws and securities regulations, in each case where the failure
to make such filing would have a material adverse effect on the Alliance Group,
taken as a whole (collectively, "Seller's Regulatory Filings"). Seller'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.
3.6 UNITS. (b) The BBV Units have been duly authorized and, when
issued to Buyer upon conversion of the Convertible Note, will be validly issued,
free and clear of any Lien and any other limitation or restriction other than
those set forth herein. The holders of the BBV Units will be entitled to the
same rights (including rights to any subdivisions thereof or distributions
thereon, subject to Section 5.4) as all other
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holders of Limited Partnership Interests and Units of Seller other than the
holders of the Class A Limited Partnership Interest and the Class B Limited
Partnership Interest (in each case as defined in the Partnership Agreement).
Subject only to the provisions of the Delaware Act and to the laws of each
jurisdiction in which Seller is qualified as a foreign limited partnership,
Buyer, as holder of the BBV Units, will have no obligation to make any
contribution of capital to Seller or have any liability for the debts and
obligations of Seller. The issuance of the BBV Units to Buyer is not subject to
preemptive rights of any partner in, or any Affiliate or creditor of, Seller or
any other person.
(b) Subject to and in reliance upon the representation given in
Section 5.1, the issuance of the Convertible Note by Seller and the issuance of
the BBV Units by Seller upon conversion of the Convertible Note will be exempt
from registration under the Securities Act.
(c) There are no preemptive or similar rights on the part of any
holders of any class of securities of Seller. Except for this Agreement, the
Convertible Note, the Alliance Capital Management L.P. Unit Option Plan, the
Alliance Capital Management 1993 Unit Option Plan, the Alliance Capital
Management 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 the Seller and
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 Seller, 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
Partnership Interests or Units, are or will at the Closing be outstanding; and
no authorization therefor has or will have been given. There are no outstanding
contractual obligations of Seller 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 Seller under any Seller employee plan or agreement.
3.7 GENERAL PARTNER. The General Partner is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with all corporate powers and all licenses, authorizations,
permits, consents and approvals (governmental and otherwise) required to carry
on its business as now conducted, except where the failure
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to obtain such licenses, authorizations, permits, consents and approvals would
not have a material adverse effect on the General Partner and the Alliance
Group, taken as a whole. The General Partner is duly qualified, licensed or
registered to transact business and is in good standing in each jurisdiction
where its ownership or leasing of property requires such qualification, license
or registration or where the failure to be so qualified, licensed or registered
or in good standing would have a material adverse effect on its ability to
conduct its business as currently conducted.
3.8 FINANCIAL STATEMENTS. (a) The audited consolidated statements of
financial condition of Seller as of December 31, 1992 and 1993, and the related
consolidated statements of income, changes in partners' capital and cash flows
for each of the years ended December 31, 1991, 1992 and 1993, present fairly, in
all material respects, the consolidated financial position of Seller as of the
dates thereof and its consolidated results of operations and cash flows for the
periods then ended in conformity with generally accepted accounting principles
applied on a consistent basis (except as disclosed in such consolidated
financial statements or in footnotes thereto).
(b) The unaudited consolidated statements of financial condition of
Seller as of June 30, 1993 and 1994, and the related consolidated statements of
income, changes in partners' capital and cash flows for each of the six-month
periods ended June 30, 1993 and 1994, present fairly, in all material respects,
the consolidated financial position of Seller as of the dates thereof and its
consolidated results of operations and cash flows for the periods then ended and
are stated on a basis consistent with the audited consolidated financial
statements referred to in subsection (a) of this Section 3.8.
3.9 ABSENCE OF CERTAIN CHANGES. Since June 30, 1994, there has not
been:
(i) any event, occurrence, development or state of circumstances
or facts which has had or could reasonably be expected to have a
material adverse effect on the financial condition, earnings, business
or operations of the Alliance Group, taken as a whole;
(ii) any material change in any method of accounting or
accounting practice by Seller; or
(iii) any amendment of any material term of the Partnership
Agreement, other than the amendment dated May 6, 1994 relating to the
Class B Limited Partnership Interest.
3.10 FINDERS' FEES. There is no investment banker,
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broker, finder or other intermediary which has been retained by or is authorized
to act on behalf of Seller or the General Partner who might be entitled to any
fee or commission in connection with the transactions contemplated by this
Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
In addition to the representation given in Section 5.1, Buyer
represents and warrants to Seller as of the date hereof that:
4.1 ORGANIZATION. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the Kingdom of Spain.
4.2 CORPORATE AUTHORIZATION. The execution, delivery and performance
by Buyer 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 are within the corporate powers of Buyer and have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement constitutes a valid and binding agreement of Buyer.
4.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Buyer 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 (other than conversion of the Convertible Note)
require no action by or in respect of, or filing with, any governmental body,
agency or official. Buyer has submitted a notice to the DGEITE in respect of,
and will use its best efforts to cause the occurrence of, the DGEITE Condition
and will not withdraw such notice without Seller's written consent.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by
Buyer 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 do not and will not (i) violate the certificate of
incorporation or bylaws (ESTATUTOS) of Buyer, (ii) violate any applicable law,
rule, regulation, judgment, injunction, order or decree, (iii) require any
consent or other action by any Person under, constitute a breach of or default
under, or give rise to any right of termination, cancellation or acceleration of
any right or obligation of Buyer or a loss of any benefit to which Buyer is
entitled under, any material agreement or other instrument binding upon Buyer or
any material license, franchise, permit or other similar authorization held by
Buyer or (iv) result in the creation or imposition of any Lien on any asset of
Buyer.
-11-
ARTICLE 5
TRANSFER AND OWNERSHIP OF CONVERTIBLE NOTE AND UNITS
5.1 PURCHASE FOR INVESTMENT. (a) Buyer is purchasing the Convertible
Note and the BBV Units issuable upon conversion thereof for investment for its
own account and not with a view to, or for sale in connection with, any
distribution thereof. Buyer acknowledges that neither the Convertible Note nor
the BBV Units have 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. Buyer also acknowledges
that the Convertible Note and any certificate evidencing the BBV Units shall
carry a legend to such effect. Buyer will not at any time sell, pledge, assign,
encumber, or otherwise transfer the Convertible Note or any BBV Units in a
manner that would violate the provisions of the Securities Act.
(b) Buyer shall not sell, pledge, assign, encumber or otherwise
transfer the Convertible Note prior to the earlier of its conversion or
maturity.
5.2 REGISTRATION RIGHTS. Buyer and all other BBV Persons shall be
entitled to the registration rights set forth in Exhibit B hereto.
5.3 LEGEND ON CONVERTIBLE NOTE AND BBV UNITS. Each certificate for
BBV Units issued upon conversion of the Convertible Note (and, MUTATIS MUTANDIS,
the Convertible Note) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The Units represented by this Certificate have not been
registered under the United States Securities Act of 1933 (the
"Securities Act") or the securities laws of any state by virtue
of exemptions from the registration requirements of the
Securities 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 Securities
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 Convertible Note Purchase Agreement, dated
August 11, 1994, between Banco Bilbao Vizcaya, S.A., 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
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such Convertible Note Purchase Agreement. A copy of such
Convertible Note Purchase Agreement is available for
inspection at the executive offices of Alliance Capital
Management L.P."
Seller shall issue new Unit certificates not bearing the legend set forth above
in exchange for certificates representing any BBV 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 Seller may request that the person or entity requesting the new
certificates furnish an opinion of counsel reasonably satisfactory to Seller, in
form and substance reasonably satisfactory to Seller, as to the absence of any
restrictions on sale or transfer of the BBV Units under the Securities Act.
5.4 DISTRIBUTIONS WITH RESPECT TO BBV UNITS. The holder of the BBV
Units on the record date for the regular quarterly distribution by Seller of
Available Cash Flow (as defined in the Partnership Agreement) relating to the
quarter during which Buyer acquires the BBV Units upon conversion of the
Convertible Note (the "Acquisition Quarter") will receive a PRO RATA portion of
such distribution with respect to its BBV Units equal to the amount of Available
Cash Flow distributed per Unit multiplied by a fraction the numerator of which
is the number of days remaining in the Acquisition Quarter on (and including)
(i) if the Conversion Notice is given on or before September 12, 1994, the
Closing Date or (ii) if the Conversion Notice is given after September 12, 1994,
the date on which the Conversion Notice is given, and the denominator of which
is the total number of days in the Acquisition Quarter.
5.5 LISTING. Seller shall use its best efforts to cause the BBV
Units to be approved for listing on the New York Stock Exchange, subject to
official notice of issuance, no later than the Conversion Date.
5.6 RIGHT OF FIRST REFUSAL. (a) Until the third anniversary of the
Closing Date, Buyer will not, and will not permit any of its Subsidiaries to,
sell or otherwise transfer any BBV Units without first giving Seller prior
notice thereof (an "Offer Notice") and the opportunity (as hereinafter provided)
to purchase such BBV Units (the "Offered Units") at a cash price (the "Offer
Price") equal to the sum of the amount of any cash plus the fair market value of
any other consideration offered by the prospective purchaser or other
transferee; PROVIDED that Buyer and its Subsidiaries shall not be required to
give an Offer Notice with respect to (i) any sale or other transfer to one or
more Subsidiaries of Buyer or (ii) any sale or other transfer pursuant to Rule
144 (or any successor provision) under the Securities Act and subject to the
volume and manner of sale
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limitations set forth in such rule. The Offer Notice shall constitute an offer
(the "Offer") by Buyer or the relevant Subsidiary of Buyer to sell the Offered
Units to Seller at the Offer Price and shall state the identity of the purchaser
or transferee and the terms of the proposed purchase or transfer.
(b) The Offer may be accepted within 10 New York Business Days of
receipt by Seller of the Offer Notice and, if accepted, such acceptance shall
constitute Seller's binding agreement to purchase the Offered Units by the later
of (i) the date 30 days after such acceptance or (ii) the date by which the
prospective purchaser or transferee would have been obligated to purchase the
Offered Units. If the Offer is not accepted or the Offered Units are not
purchased as contemplated above, Buyer or the relevant Subsidiary of Buyer may
sell the Offered Units to such prospective purchaser or transferee at a price
not less than the Offer Price and on substantially the same terms as described
in the Offer Notice.
(c) If the consideration offered by the prospective purchaser or
transferee includes non-cash consideration, Buyer and Seller shall negotiate in
good faith with a view to agreeing upon the fair market value of such non-cash
consideration. If, despite such good faith negotiations, Buyer and Seller are
unable to agree on such fair market value within 15 days following receipt by
Seller of the Offer Notice, each of Buyer and Seller shall, at its own expense,
retain an investment banking firm of national reputation to determine such fair
market value. If such two investment banking firms do not make substantially
similar determinations and neither determination is acceptable to both Buyer and
Seller, then such investment banking firms shall, at the equally shared expense
of Buyer and Seller, retain a third investment banking firm of national
reputation to select between the two determinations, which selection shall be
binding upon Buyer and Seller. If a determination under this subsection (c) is
required, any deadline for acceptance provided for in this Section 5.6 shall be
postponed until the fifth New York Business Day after the date of such
determination.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 CONDITION TO OBLIGATIONS OF BUYER AND SELLER. The obligations of
Buyer and Seller to consummate the Closing are subject to the satisfaction of
the condition that no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Closing.
6.2 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the Closing is subject to the satisfaction
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or waiver on or before the Closing Date of the following further conditions:
(i) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Seller contained herein shall be true and
correct in all material respects as of the date hereof and as of the
Closing Date, with the same force and effect as though made on and as of
the Closing Date.
(ii) PERFORMANCE BY SELLER. Seller shall have performed
all of its obligations and agreements hereunder required to be
performed by it on or prior to the Closing Date.
(iii) 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 Seller to
consummate the transactions contemplated by this Agreement, except for
the approval of the New York Stock Exchange of the listing of the BBV
Units, shall have been obtained, undertaken or made, and all waiting
periods shall have expired or been waived, as the case may be.
(iv) NO MATERIAL ADVERSE CHANGE. Prior to the Closing there
shall have been no event, occurrence, development or state of circumstances
or facts which has had or could reasonably be expected to have a material
adverse effect on the financial condition, earnings, business or operations
of the Alliance Group, taken as a whole.
(v) OPINIONS OF COUNSEL. Buyer shall have received opinions,
dated the Closing Date, of Seward & Kissel, counsel to Seller, and Davis
Polk & Wardwell, special counsel to Buyer, in substantially the forms of
Exhibits C and D attached hereto.
(vi) BOARD REPRESENTATION. Equitable Investment Corporation
shall have executed and delivered to Buyer the Board Representation
Agreement.
(vii) OFFICER'S CERTIFICATE. Seller shall have delivered to
Buyer 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 conditions specified in clauses (i),
(ii), (iii) and (iv) of this Section 6.2 have been satisfied.
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(viii) PROCEEDINGS SATISFACTORY. All proceedings taken in
connection with the sale of the Convertible Note and all documents and
papers relating thereto shall be reasonably satisfactory to Buyer and its
special counsel. Buyer and its 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 opinion, all in form and
substance reasonably satisfactory to Buyer and its special counsel.
6.3 CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the Closing is subject to the satisfaction or waiver on or before the
Closing Date of the following further conditions:
(i) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Buyer contained herein shall be true and
correct in all material respects as of the date hereof and as of the
Closing Date, with the same force and effect as though made on and as of
the Closing Date.
(ii) PERFORMANCE BY BUYER. Buyer shall have performed all
of its obligations and agreements hereunder required to be performed
by it on or prior to the Closing Date.
(iii) 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 Buyer to
consummate the transactions contemplated by this Agreement (other than
conversion of the Convertible Note), shall have been obtained,
undertaken or made, and all waiting periods shall have expired or been
waived, as the case may be.
(iv) OFFICER'S CERTIFICATES. Buyer shall have delivered to
Seller a certificate of an executive officer of Buyer, dated the Closing
Date, certifying that the conditions specified in clauses (i), (ii) and
(iii) of this Section 6.3 have been satisfied.
(v) PROCEEDINGS SATISFACTORY. All proceedings taken in
connection with the sale of the Convertible Note and all documents and
papers relating thereto shall be reasonably satisfactory to Seller and its
counsel. Seller and its counsel shall have received copies of such
documents and papers as they may reasonably request in connection therewith
or as a basis for such counsel's opinion, all in form and substance
reasonably satisfactory to Seller and its counsel.
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ARTICLE 7
SURVIVAL
7.1 SURVIVAL. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection herewith
shall survive the Closing.
ARTICLE 8
TERMINATION
8.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(i) by mutual written agreement of Seller and Buyer;
(ii) by either Seller or Buyer if there shall be any law or
regulation that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or if consummation of the
transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of any court or governmental body having
competent jurisdiction; or
(iii) by Seller or by Buyer, if there has been a material
misrepresentation or breach of warranty on the part of Buyer (in the
case of termination by Seller) or by Seller (in the case of
termination by Buyer) in the representations and warranties contained
herein.
The party desiring to terminate this Agreement shall give notice of
such termination to the other party.
8.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 8.1, termination shall be without liability of either party
(or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other party to this Agreement; PROVIDED
that if such termination shall result from the willful failure of either party
to fulfill a condition to the performance of the obligations of the other party,
failure to perform a covenant of this Agreement or breach by either party hereto
of any representation or warranty or agreement contained herein, such party
shall be fully liable for any and all damage, loss,
-17-
liability and expense (including without limitation reasonable expenses of
investigation and reasonably attorneys' fees and expenses in connection with any
action, suit or proceeding) incurred or suffered by the other party as a result
of such failure or breach. The provision of Section 9.3 shall survive any
termination hereof pursuant to Section 8.1.
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES. All notices, requests and other communications to any
party hereunder or under the Convertible Note shall be in writing (including
facsimile transmission) and shall be given,
if to Buyer, to:
Banco Bilbao Vizcaya, S.A.
Alcala, 45
28014 Madrid, Spain
Attention: Ignacio Lacasta
Fax: (341) 532-4630
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: John Fouhey, Esq.
Fax: (212) 450-4800
if to Seller, to:
Alliance Capital Management L.P.
1345 Avenue of the Americas
New York, New York 10105
Attention: David R. Brewer, Jr., Esq.
Fax: (212) 554-4613
with copies to:
Alliance Capital Management L.P.
1345 Avenue of the Americas
New York, New York 10105
Attention: Myles R. Itkin
Fax: (212) 554-4613
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Seward & Kissel
One Battery Park Plaza
New York, New York 10004
Attention: Bruce D. Senzel, Esq.
Fax: (212) 480-8421
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.
9.2 AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement or
the Convertible Note may be amended or waived prior to the Closing Date 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.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder or under the Convertible Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein and in the Convertible Note provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
9.3 EXPENSES. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
9.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement and the
Convertible Note shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
9.5 GOVERNING LAW. This Agreement and the Convertible Note 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 thereof.
9.6 COUNTERPARTS; THIRD PARTY BENEFICIARIES. 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. No provision of this Agreement or the Convertible Note is intended
to confer upon any Person other than the parties hereto any rights or remedies
hereunder.
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9.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement. No representation, inducement, promise, understanding, condition or
warranty not set forth herein has been made or relied upon by either party
hereto.
9.8 PUBLIC ANNOUNCEMENTS. Prior to the Closing, Buyer and Seller
will consult with one another before issuing any press release or otherwise
making any public statement 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 press release or
public statement, except as may otherwise be required by applicable law.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed by a duly authorized person as of the day and year first above
written.
BANCO BILBAO VIZCAYA, S.A.
By:
----------------------------
Title:
By:
----------------------------
Title:
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, its General Partner
By:
----------------------------
Title:
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EXHIBIT A
CONVERTIBLE NOTE
New York, New York
August 12, 1994
For value received, Alliance Capital Management L.P., a Delaware
limited partnership (the "Seller"), promises to pay to the order of Banco Bilbao
Vizcaya, S.A., a Spanish banking corporation (the "Buyer"), the sum of
U.S.$50,000,000 (fifty million United States dollars) on September 29, 1994,
together with accrued interest thereon at the rate per annum set forth below, in
immediately available funds by wire transfer to an account of Buyer with a bank
in New York City designated by Buyer, by notice to Seller, not later than
September 27, 1994 (or if not so designated, then by certified or official bank
check payable in immediately available funds to the order of Buyer in such
amount).
Subject to Section 2.3(f) of the Convertible Note Purchase Agreement
referred to below, this convertible note shall bear interest, for each day
during which it is outstanding, at the rate per annum (as determined by Buyer in
good faith) at which overnight deposits in dollars are offered to the principal
London office of Buyer in the London interbank market at approximately 11:00
A.M. (London time) on (i) such day, if such day is a London Business Day or (ii)
the next preceding London Business Day, if such day is not a London Business
Day, in an amount approximately equal to the principal amount of this
convertible note. As used herein, "London Business Day" means any day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
THIS CONVERTIBLE NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE BY VIRTUE OF EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS.
THIS CONVERTIBLE NOTE IS SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. IN ADDITION, THIS CONVERTIBLE NOTE IS SUBJECT TO THE TERMS
OF THE CONVERTIBLE NOTE PURCHASE AGREEMENT REFERRED TO BELOW. THIS
CONVERTIBLE NOTE MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF OR ENCUMBERED EXCEPT AS PROVIDED IN SUCH
CONVERTIBLE NOTE PURCHASE AGREEMENT. A COPY OF SUCH CONVERTIBLE NOTE
PURCHASE AGREEMENT IS AVAILABLE FOR INSPECTION AT THE EXECUTIVE OFFICES
OF ALLIANCE CAPITAL MANAGEMENT L.P.
Seller may, at any time after September 12, 1994 upon notice to Buyer,
prepay this convertible note in whole if the Conversion Notice is not given on
or before such date, by paying the principal amount hereof together with accrued
interest hereon to the date of prepayment. Upon notice of such prepayment, this
convertible note shall no longer be convertible.
This convertible note is the Convertible Note referred to in the
Convertible Note Purchase Agreement dated August 11, 1994 between Buyer and
Seller (the "Convertible Note Purchase Agreement"). Terms defined in the
Convertible Note Purchase Agreement are used herein with the same meanings.
Reference is made to the Convertible Note Purchase Agreement for provisions
relating to the conversion hereof, upon which event Seller's obligation to pay
any portion of the principal amount hereof shall terminate.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, its General Partner
By
------------------------------
Title:
2
EXHIBIT B
REGISTRATION RIGHTS
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Terms defined in the Convertible Note
Purchase Agreement (the "Agreement") dated August 11, 1994 between BANCO BILBAO
VIZCAYA, S.A., a banking corporation incorporated under the laws of the Kingdom
of Spain ("Buyer"), and ALLIANCE CAPITAL MANAGEMENT L.P., a limited partnership
formed under the laws of the State of Delaware ("Seller"), are used herein as
therein defined. In addition, the following terms, as used herein, have the
following meanings:
"BBV Transferee" has the meaning set forth in Section 5.2.
"Demand Registration" has the meaning set forth in Section 2.1.
"Piggyback Registration" has the meaning set forth in Section 2.2.
"Registrable Securities" means the BBV Units owned by any BBV 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 so to dispose of such
security shall be attributable only to (x) reasons solely within the control of
such BBV Person or (y) a failure of an Underwriter or a BBV 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 restricting further transfer shall have been
delivered by Seller in accordance with Section 5.5 of the Agreement.
"Registration Rights" means the rights set forth in this Exhibit B.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. DEMAND REGISTRATION. (a) After the third anniversary
of the Closing Date, upon proper written request of Buyer or any BBV Transferee
(PROVIDED that such request by a BBV Transferee may only be made with the prior
written approval of Buyer at any time that Buyer or any of its Subsidiaries owns
any Registrable Securities), requesting that Seller effect the registration
under the Securities Act of all or part of the Registrable Securities owned by
all BBV Persons specified in such request and specifying the method of
disposition thereof, Seller will promptly (but in no event more than five New
York Business Days after the receipt of such request) give written notice of
such requested registration to all BBV Transferees, if any, other than a
requesting BBV Transferee, and Seller 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 Seller has been so requested to
register by such BBV Person, and
(ii) all other Registrable Securities which Seller has been requested
to register by any other BBV Person by written request given to Seller
within 30 days after the giving of such written notice by Seller (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 the Seller shall not be
obligated (i) to file a registration statement in respect of more than two
Demand Registrations, (ii) to file a registration statement in respect of more
than one Demand Registration in any 6-month period or (iii) to file a
registration statement in respect of a Demand Registration 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. 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 BBV Person requesting a Demand Registration so elects
(PROVIDED that such election, including the choice of Underwriters from the list
referred to below, may only be made with the prior written approval of Buyer at
any time that Buyer
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or any of its Subsidiaries owns any Registrable Securities), the offering of
such Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. The requesting BBV Person shall select the
lead and other managing Underwriters in connection with such offering from a
list of at least seven securities dealers of national reputation prepared by
Seller. If a requested Demand Registration involves an underwritten offering
and any lead Underwriter advises Seller that, in its opinion, the number of
securities requested to be included in such registration (including securities
of Seller 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, Seller 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 Registrable Securities offered, then Seller will include in
such registration the number of Registrable Securities which, in the opinion of
such lead Underwriter, can be sold, such number to be allocated by Buyer or, if
neither Buyer nor any of its Subsidiaries owns any Registrable Securities, by
the requesting BBV Transferee, pro rata among all BBV Persons desiring to sell
Registrable Securities pursuant to the Demand Registration on the basis of the
relative number of shares of Registrable Securities then held by each such BBV
Person (PROVIDED that any allocation to any such BBV Person that exceeds the
Registrable Securities such BBV Person desires to include in the registration
statement shall be reallocated among the remaining such BBV 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 Registrable Securities offered, Seller may
include in such registration the securities Seller or any other holder of
Seller's securities proposes to sell up to the number of securities that, in the
opinion of such lead Underwriter, can be sold.
(c) Seller 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 2.1(a) hereof if, at the time it
receives a request for a Demand 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 Seller, in which case Seller
shall
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have furnished a certificate of an executive officer of the General Partner to
that effect to Buyer (if any BBV Units held by Buyer or any of its Subsidiaries
are to be included in such registration) and to all BBV Transferees which hold
Registrable Securities to be included in such registration; PROVIDED, that
Seller shall not exercise the right to postpone a Demand Registration more than
once in any 12-month period. After such period of postponement Seller 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.
SECTION 2.2. PIGGYBACK REGISTRATION. (a) If, after the third
anniversary of the Closing Date, Seller proposes to file a registration
statement under the Securities Act with respect to an offering of Units of the
same class as the BBV 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), then the
Seller shall give written notice of such proposed filing to Buyer (if Buyer or
any of its Subsidiaries owns any Registrable Securities) and to all BBV
Transferees as soon as practicable (but in no event less than 20 days before the
anticipated filing date). Seller shall use its best efforts to include such
number of Registrable Securities in such registration statement which Seller is
requested to register by Buyer or any BBV Transferee (a "Piggyback
Registration"), which request shall be made to Seller within 15 days after such
BBV Persons receive notice from Seller of such proposed filing; PROVIDED, that
(i) if, at any time after giving written notice of its intention to file a
registration statement and prior to the effectiveness of such registration
statement, Seller shall determine for any reason not to register such
securities, Seller may, at its election, give written notice of such
determination to Buyer (if Buyer or any of its Subsidiaries owns any Registrable
Securities) and to all BBV 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 3.2 incurred in connection therewith) and (ii) if such
registration statement relates to an underwritten offering, all holders of
Registrable Securities requesting to be included in Seller's registration must
sell their Registrable Securities to the Underwriters selected by Seller on the
same terms and conditions as apply to Seller, 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 BBV Person
submitting a request pursuant to this Section 2.2 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
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Registrable Securities registered in connection with such registration. In the
event that any notice described in the previous sentence is given to Seller, the
BBV Person giving such notice will bear all incremental costs incurred by Seller
in connection with such registration resulting from the inclusion of the
Registrable Securities that were not so registered.
(b) If a registration pursuant to this Section 2.2 involves an
underwritten offering and any lead Underwriter advises Seller 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 Seller's securities (including BBV Persons) have
requested to be included in such registration pursuant to this Section 2.2 or
pursuant to "piggyback" registration rights similar to those set forth in this
Section 2.2 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, in the opinion of such lead Underwriter, can be sold in such
offering.
(c) No registration effected under this Section 2.2 shall be deemed
to have been effected pursuant to Section 2.1 hereof or shall release Seller of
its obligations to effect any Demand Registration upon request under Section 2.1
hereof.
ARTICLE III
REGISTRATION PROCEDURES
3.1 FILING; INFORMATION. Whenever any Registrable Securities are to
be registered pursuant to Section 2.1 or 2.2 of these Registration Rights,
Seller 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 Seller 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 statement
or prospectus or any amendments or supplements thereto, Seller will furnish
to any BBV Person requesting registration pursuant to Section 2.1 or 2.2 of
these Registration Rights and the Underwriters, if any, draft
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copies of all such documents proposed to be filed; if such requested
registration is pursuant to Section 2.1 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 BBV Persons,
the Underwriters, if any, and their respective agents and representatives
and Seller 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 BBV Person shall
reasonably object;
(b) notify the BBV Persons requesting such registration or their
United States counsel, if any, identified by written notice to Seller 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 Seller (i) when the registration statement or any amendment
thereto has been filed or becomes effective, and when 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 Seller
contemplated by Section 5.1 cease to be true and correct, and (v) of the
receipt by Seller 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 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 (or any successor provision)
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 (or any successor provision) 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
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thereof set forth in such registration statement;
(d) furnish to each BBV 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 BBV Person or such Underwriter
may reasonably request to facilitate the disposition of the Registrable
Securities (it being understood that Seller consents to the use of the
prospectus (including the preliminary prospectus) and any amendment or
supplement thereto by the BBV 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 best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such United
States jurisdictions as the BBV 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 BBV Persons selling
Registrable Securities pursuant to such registration statement to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such BBV Persons (PROVIDED that Seller 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 BBV 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
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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 Seller'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 Seller 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 (or any successor provision) 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
quotation system on which securities issued by Seller 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 BBV 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
BBV Person or Underwriter all financial and other records, pertinent
corporate documents and properties of Seller, and cause Seller's officers,
directors, employees and independent certified public accountants to supply
all such information reasonably requested by any such BBV Person,
Underwriter, attorney, accountant or agent in connection with such
registration statement;
(k) obtain a "cold comfort" letter and updates thereof from Seller'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, Seller 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
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covered in such underwriting or other agreements.
Seller may require each BBV Person desiring to sell Registrable
Securities pursuant to a registration pursuant to Section 2.1 or 2.2 to furnish
to Seller such information regarding the distribution of such securities and
such other information relating to such BBV Person and its ownership of
Registrable Securities as Seller may from time to time reasonably request in
writing. Each such BBV Person shall furnish such information to Seller and
cooperate with Seller as necessary to enable Seller to comply with the
provisions of these Registration Rights.
Upon receipt of any notice from Seller of the happening of any event
of the kind described in subsection (f) of this Section 3.1, the BBV 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 3.1 or until
the BBV Persons requesting such registration are advised in writing (the
"Advice") by Seller 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 Seller, such BBV Persons
will deliver to Seller (at Seller's expense) all copies, other than permanent
file copies then in each such BBV Person's possession of the prospectus covering
such Registrable Securities current at the time of receipt of such notice. In
the event that Seller shall give any such notice, the period mentioned in the
subsection (c) of this Section 3.1 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 BBV Person shall have received the Advice and
the copies of the supplemented or amended prospectus contemplated by subsection
(f) of this Section 3.1.
SECTION 3.2. REGISTRATION EXPENSES. (a) All expenses incident to
Seller's performance of or compliance with these Registration Rights including,
without limitation, all Commission and securities exchange or National
Association of Securities Dealers, Inc. 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 Seller'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 Seller are then listed and
reasonable fees and disbursements of counsel for
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Seller 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 Seller elects to obtain
such insurance), the reasonable fees and expenses of any special experts
retained by Seller in connection with such registration, reasonable fees and
expenses of one (but not more than one) counsel and accountant with respect to
all BBV 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 BBV Persons) and any
reasonable out-of-pocket expenses of BBV Persons (all such expenses being herein
called "Registration Expenses") will be borne by Seller.
(b) Notwithstanding anything to the contrary in the immediately
preceding paragraph, in connection with (i) a Demand Registration pursuant to
Section 2.1 hereof and (ii) a Piggyback Registration pursuant to Section 2.2
hereof, the BBV 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 BBV Persons incurred in connection with such registration.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1. INDEMNIFICATION BY THE SELLER. The Seller shall
indemnify and hold harmless each BBV Person, its officers and directors, and
each Person, if any, who controls such BBV Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities (as
amended or supplemented if the Seller shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Seller or its attorneys, accountants or representatives by or on behalf
of such BBV Person expressly for use therein; PROVIDED that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of such BBV Person if a copy of the prospectus (as amended or
supplemented) was not provided to the relevant purchasers and such prospectus
would have cured the defect giving
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rise to such loss, claim, damage or liability.
SECTION 4.2. INDEMNIFICATION BY BBV PERSONS. Each BBV Person whose
Registrable Securities are sold in any offering pursuant to Section 2.1 or 2.2
hereof, shall severally but not jointly (except that BBV and all of its
Subsidiaries who are BBV Persons shall severally and jointly with respect to the
obligations of any such BBV Person under this Section 4.2) indemnify and hold
harmless the Seller, its officers and directors, the other BBV Persons whose
Registrable Securities are sold in such offering, their respective officers,
directors and employees and each other Person who controls the Seller or such
other BBV Person within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Seller, but only with reference to information furnished in writing to
the Seller or its attorneys, accountants or representatives by or on behalf of
such BBV Person expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus. In no event shall the liability of any BBV
Person hereunder be an amount greater than the dollar amount of the proceeds
received by such BBV Person upon the sale of the Registrable Securities giving
rise to such indemnification obligation (or, in the case of BBV and all of its
Subsidiaries who are BBV Persons, an amount greater than the dollar amount of
such proceeds received by all such BBV Persons).
SECTION 4.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2, such Person (the "Indemnified Party") shall promptly notify
the Person against whom such indemnity may be sought (the "Indemnifying Party")
in writing (PROVIDED that failure so to notify the Indemnifying Party shall not
relieve it from any liability which it may have otherwise than on account of the
indemnity provided for herein) and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and disbursements of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the Indemnified Party and the Indemnifying Party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection
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with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties, and
that all such fees and expenses shall be reimbursed promptly after they are
incurred. In the case of any such separate firm for the Indemnified Parties,
such firm shall be designated in writing by the Indemnified Parties. The
indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
SECTION 4.4. CONTRIBUTION. If the indemnification provided for in
this Article IV is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then each 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 or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Seller, BBV Persons and the Underwriters from
the offering of the securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Seller, BBV Persons and the Underwriters in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Seller, BBV Persons and the Underwriters shall
be deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by each of the Seller and BBV Persons and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the prospectus, bear to the aggregate
public offering price of the securities. The relative fault of the Seller, BBV
Persons and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Seller and Buyer recognize that it would not be just and equitable
if contribution pursuant to this Section 4.4 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable
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considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4, no BBV Person shall be required to contribute
hereunder any amount in excess of the dollar amount by which the net proceeds
(before deducting expenses) received by such BBV Person upon the sale of the
Registrable Securities giving rise to such contribution obligation exceeds the
amount of any damages which such BBV Person has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. (a) Any
BBV Person (PROVIDED that such demand may only be made with the prior written
approval of Buyer at any time that Buyer or any of its Subsidiaries owns any
Registrable Securities) may require that any registration pursuant to Section
2.1 be an underwritten registration. In the event such registration is an
underwritten offering, Seller 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 2.1 and which
underwriting agreement shall be in customary form as described in Section
3.1(l). BBV Persons selling Registrable Securities in such offering shall be
party to such underwriting agreement and may require that any or all of the
representations and warranties by, and the other agreements on the part of,
Seller to and for the benefit of such Underwriters shall also be made to and for
the benefit of such BBV 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 BBV Persons.
(b) No BBV Person may participate in any underwritten registered
offering contemplated hereunder unless such BBV Person (a) agrees to sell its
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 and these Registration Rights.
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SECTION 5.2. BBV TRANSFEREES. Any Person, other than Buyer or any of
its Subsidiaries, acquiring from Buyer or any of its Subsidiaries 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 Seller
and Buyer (each such person, upon such election and so long as it holds
Registrable Securities, being herein called a "BBV Transferee"). Each such BBV
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.
SECTION 5.3. RULE 144. Seller covenants that it will use its best
efforts to file any reports required to be filed by it under the Securities Act
and the Exchange Act and that it will take such further action as Buyer may
reasonably request, all to the extent required from time to time to enable BBV
Persons to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemption provided by Rule 144 (or any
successor provision) under the Securities Act. Upon the request of Buyer or any
BBV Transferee, the Seller will deliver to Buyer a written statement as to
whether it has complied with such requirements.
SECTION 5.4. NO INCONSISTENT AGREEMENTS. Seller will not enter into
any agreement with respect to its securities which conflicts with the
obligations of Seller pursuant to these Registration Rights.
SECTION 5.5. TERM. For so long as any BBV Person owns any of the
Registrable Securities, the rights and obligations of Buyer and such BBV Person
under these Registration Rights shall remain in effect.
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EXHIBIT C
[Form of Opinion of Seward & Kissel]
Capitalized terms used herein shall have the meanings assigned to such
terms in the Convertible Note Purchase Agreement.
1. Seller is a limited partnership formed under the Delaware Act,
validly existing and in good standing under the laws of the State of Delaware.
The execution, delivery and performance of the Convertible Note Purchase
Agreement and the Convertible Note, the issuance and delivery of the BBV Units
upon conversion of the Convertible Note, and the consummation of the other
transactions contemplated thereby are within Seller's power and have been duly
authorized by all necessary action on the part of Seller and the General
Partner. Assuming due authorization, execution and delivery by the other
parties thereto, the Convertible Note Purchase Agreement constitutes a valid and
binding agreement of Seller and the Convertible Note constitutes a valid and
binding obligation of Seller.
2. The execution and delivery by Seller of the Convertible Note
Purchase Agreement and the Convertible Note, the issuance and delivery of the
BBV Units upon conversion of the Convertible Note and the consummation of the
other transactions contemplated thereby do not and will not: (i) violate,
conflict with, or breach any provision of the Partnership Agreement or Seller's
certificate of limited partnership, (ii) result in any conflict with New York,
Delaware or United States federal law or (iii) require any consent or other
action by any Person under, constitute a breach of or default under, or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of Seller or a loss of any benefit to which Seller is entitled under,
any material agreement or other instrument known by us to be binding upon Seller
or any material license, franchise, permit or other similar authorization known
by us to be held by Seller or (iv) to our knowledge, result in the creation or
imposition of any Lien on any asset of Seller.
3. Except for the approval of the New York Stock Exchange of the
listing of the BBV Units, no action by or in respect of, or filing with, any
governmental body, agency, or official or self-regulatory organization is
required to be obtained by Seller in connection with the execution, delivery and
performance by Seller of the Convertible Note
Purchase Agreement and the Convertible Note, the issuance and delivery of the
BBV Units upon conversion of the Convertible Note or the consummation of the
other transactions contemplated thereby.
4. The BBV Units have been duly authorized and, when issued to Buyer
upon conversion of the Convertible Note, will be validly issued, free and clear
of any Lien and any other limitation or restriction other than those set forth
in the Convertible Note Purchase Agreement. Subject only to the provisions of
applicable law, Buyer, as holder of the BBV Units, will have no obligation to
make any contribution of capital to Seller or have any liability for the debts
and obligations of Seller. The issuance of the BBV Units to Buyer is not
subject to preemptive rights of any partner in, or any Affiliate or creditor of,
Seller or any other person.
5. Subject to and in reliance upon the representation given in
Section 5.1 of the Convertible Note Purchase Agreement, the issuance of the
Convertible Note by Seller and the issuance of the BBV Units by Seller upon
conversion of the Convertible Note will be exempt from registration under the
Securities Act.
6. The General Partner is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
In rendering the opinions set forth in paragraphs 2 and 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.
2
EXHIBIT D
[Form of Opinion of Davis Polk & Wardwell]
Capitalized terms used herein shall have the meanings assigned to such
terms in the Unit Purchase Agreement.
1. Seller is a limited partnership formed under the Delaware Act,
validly existing and in good standing under the laws of the State of Delaware.
The execution, delivery and performance of the Convertible Note Purchase
Agreement and the Convertible Note, the issuance and delivery of the BBV Units
upon conversion of the Convertible Note, and the consummation of the other
transactions contemplated thereby are within Seller's power and have been duly
authorized by all necessary action on the part of Seller and the General
Partner. Assuming due authorization, execution and delivery by the other
parties thereto, the Convertible Note Purchase Agreement constitutes a valid and
binding agreement of Seller and the Convertible Note constitutes a valid and
binding obligation of Seller.
2. The BBV Units have been duly authorized and, when issued to Buyer
upon conversion of the Convertible Note, will be validly issued, free and clear
of any Lien and any other limitation or restriction other than those set forth
in the Convertible Note Purchase Agreement. The issuance and delivery of the
BBV Units upon conversion of the Convertible Note will not violate, conflict
with, or breach any provision of the Partnership Agreement or Seller's
certificate of limited partnership.
3. Subject to and in reliance upon the representation given in
Section 5.1 of the Convertible Note Purchase Agreement, the issuance of the
Convertible Note by Seller and the issuance of the BBV Units by Seller upon
conversion of the Convertible Note will be exempt from registration under the
Securities Act.
In rendering the opinion set forth in paragraph 2 above with respect
to matters of Delaware law we have, with your approval, expressed our opinion in
reliance upon the opinion of Richards, Layton & Finger, dated the date hereof
and attached to this opinion.
EXHIBIT E
[Letterhead of Equitable Investment Corporation]
August 12, 1994
Banco Bilbao Vizcaya, S.A.
Plaza de San Nicolas 4
48005 Bilbao, Spain
Dear Sirs:
Reference is made to the Convertible Note Purchase Agreement dated
August 11, 1994 (the "Purchase Agreement") between Banco Bilbao Vizcaya, S.A.
("Buyer") and Alliance Capital Management L.P. ("Seller"). Capitalized terms
used herein and not otherwise defined have the meanings set forth in the
Purchase Agreement.
Equitable Investment Corporation ("Shareholder") represents and
warrants to Buyer as of the date hereof that it directly owns 100% of the
capital stock of the General Partner entitled, in the ordinary course, to vote
in the election of directors of the General Partner (the "Voting Stock"). In
consideration of Buyer's agreement to purchase the Convertible Note from Seller
pursuant to the Purchase Agreement, Shareholder agrees to cause to be elected to
the board of directors of the General Partner one individual to be designated by
Buyer (the "BBV Director") as soon as practicable after conversion of the
Convertible Note, but in no event later than 15 days after the Conversion Date.
Buyer shall designate the BBV Director in its sole discretion by written notice
to the General Partner; PROVIDED that Buyer shall not designate any individual
whose election to the board of directors of the General Partner would violate
any applicable law, rule, regulation, judgment, injunction, order or decree.
Shareholder further agrees to cause the BBV Director (or any successor
in such capacity designated by Buyer by written notice to the General Partner)
to be re-elected to the board of directors of the General Partner from time to
time for consecutive terms of office; PROVIDED, HOWEVER, that if, at any time
after the Conversion Date, Buyer shall own a number of Units equal to less than
65% of the number of Units issued upon conversion of the
Convertible Note (adjusted for any subdivisions of, or combinations with respect
to, the Units), then Shareholder shall not be required to cause the BBV Director
to be re-elected to the board of directors of the General Partner.
Shareholder shall not sell, pledge, assign, encumber or otherwise
transfer any Voting Stock of the General Partner to any other Person or Persons
if such action would cause Shareholder to own less than a majority of the Voting
Stock, unless such Person or Persons agree in writing to be bound by all the
terms of this Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws rules
thereof.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart of this Agreement, whereupon it shall constitute
a binding agreement between Shareholder and Buyer.
Very truly yours,
EQUITABLE INVESTMENT CORPORATION
By
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Title:
Accepted and agreed to
as of the date hereof:
BANCO BILBAO VIZCAYA, S.A.
By
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Title:
2