DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made as of July 10, 2002 between ALLIANCE
DYNAMIC GROWTH FUND, INC., a Maryland corporation (the "Fund"),
and ALLIANCE FUND DISTRIBUTORS, INC., a Delaware corporation (the
"Underwriter").
WITNESSETH
WHEREAS, the Fund is registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"),
as a diversified, open-end management investment company and it
is in the interest of the Fund to offer its shares for sale
continuously;
WHEREAS, the Underwriter is a securities firm engaged
in the business of selling shares of investment companies either
directly to purchasers or through other securities dealers;
WHEREAS, the Fund and the Underwriter wish to enter
into an agreement with each other with respect to the continuous
offering of the Fund's shares in order to promote the growth of
the Fund and facilitate the distribution of its shares;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Appointment of the Underwriter.
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The Fund hereby appoints the Underwriter as the
principal underwriter and distributor of the Fund to sell to the
public shares of its Class A Common Stock (the "Class A shares"),
Class B Common Stock (the "Class B shares"), Class C Common Stock
(the "Class C shares"), Advisor Class Common Stock (the "Advisor
Class shares") and shares of such other class or classes as the
Fund and the Underwriter shall from time to time mutually agree
in writing shall become subject to this Agreement (the "New
shares") (the Class A shares, the Class B shares, the Class C
shares, the Advisor Class shares and the New shares being
collectively referred to herein as the "shares") and hereby
agrees during the term of this Agreement to sell shares to the
Underwriter upon the terms and conditions herein set forth.
SECTION 2. Exclusive Nature of Duties.
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The Underwriter shall be the exclusive representative
of the Fund to act as principal underwriter and distributor of
the shares except that the rights given under this Agreement to
the Underwriter shall not apply to shares issued in connection
with (a) the merger or consolidation of any other investment
company with the Fund, (b) the Fund's acquisition by purchase or
otherwise of all or substantially all of the assets or stock of
any other investment company or (c) the reinvestment in shares by
the Fund's shareholders of dividends or other distributions.
SECTION 3. Purchase of Shares from the Fund.
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(a) The Underwriter shall have the right to buy from
the Fund the shares needed to fill unconditional orders for
shares of the Fund placed with the Underwriter by investors or
securities dealers, depository institutions or other financial
intermediaries acting as agent for their customers. The price
which the Underwriter shall pay for the shares so purchased from
the Fund shall be the net asset value, determined as set forth in
Section 3(d) hereof, used in determining the public offering
price on which such orders are based.
(b) The shares are to be resold by the Underwriter to
investors at a public offering price, as set forth in Section
3(c) hereof, or to securities dealers, depository institutions or
other financial intermediaries acting as agent for their
customers having agreements with the Underwriter upon the terms
and conditions set forth in Section 8 hereof.
(c) The public offering price of the shares, i.e., the
price per share at which the Underwriter or selected dealers or
selected agents (each as defined in Section 8(a) below) may sell
shares to the public, shall be the public offering price
determined in accordance with one or more then current
prospectuses and statements of additional information of the Fund
(each a "Prospectus" and a "Statement of Additional Information,"
respectively) under the Securities Act of 1933, as amended (the
"Securities Act"), relating to such shares, but not to exceed the
net asset value at which the Underwriter is to purchase such
shares, plus, in the case of Class A shares, an initial sales
charge equal to a specified percentage or percentages of the
public offering price of the Class A shares as set forth in the
Prospectus. Class A shares may be sold without such a sales
charge to certain classes of persons as from time to time set
forth in the Prospectus and Statement of Additional Information.
All payments to the Fund hereunder shall be made in the manner
set forth in Section 3(f) hereof.
(d) The net asset value of shares of the Fund shall be
determined by the Fund, or any agent of the Fund, as of the close
of regular trading on the New York Stock Exchange on each Fund
business day in accordance with the method set forth in the
Prospectus and Statement of Additional Information and guidelines
established by the Directors of the Fund.
(e) The Fund reserves the right to suspend the offering
of its shares at any time in the absolute discretion of its
Directors.
(f) The Fund, or any agent of the Fund designated in
writing to the Underwriter by the Fund, shall be promptly advised
by the Underwriter of all purchase orders for shares received by
the Underwriter. Any order may be rejected by the Fund; provided,
however, that the Fund will not arbitrarily or without reasonable
cause refuse to accept or confirm orders for the purchase of
shares. The Fund (or its agent) will confirm orders upon their
receipt, will make appropriate book entries and, upon receipt by
the Fund (or its agent) of payment thereof, will deliver deposit
receipts or certificates for such shares pursuant to the
instructions of the Underwriter. Payment shall be made to the
Fund in New York Clearing House funds. The Underwriter agrees to
cause such payment and such instructions to be delivered promptly
to the Fund (or its agent).
SECTION 4. Repurchase or Redemption of Shares
by the Fund.
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(a) Any of the outstanding shares may be tendered for
redemption at any time, and the Fund agrees to redeem or
repurchase the shares so tendered in accordance with its
obligations as set forth in its Articles of Incorporation and in
accordance with the applicable provisions set forth in the
Prospectus and Statement of Additional Information. The price to
be paid to redeem or repurchase the shares shall be equal to the
net asset value calculated in accordance with the provisions of
Section 3(d) hereof, less any applicable sales charge or
redemption fee. All payments by the Fund hereunder shall be made
in the manner set forth below. The redemption or repurchase by
the Fund of any of the Class A shares purchased by or through the
Underwriter will not affect the initial sales charge secured by
the Underwriter or any selected dealer or compensation paid to
any selected agent (unless such selected dealer or selected agent
has otherwise agreed with the Underwriter), in the course of the
original sale, regardless of the length of the time period
between purchase by an investor and his tendering for redemption
or repurchase.
The Fund (or its agent) shall pay the total amount of
the redemption price and, except as may be otherwise required by
the Conduct Rules of the National Association of Securities
Dealers, Inc. (the "NASD") and any interpretations thereof ("NASD
rules and interpretations"), the deferred sales charges, if any,
pursuant to the instructions of the Underwriter in New York
Clearing House funds on or before the seventh business day
subsequent to its having received the notice of redemption in
proper form.
(b) Redemption of shares or payment may be suspended at
times when the New York Stock Exchange is closed, when trading
thereon is restricted, when an emergency exists as a result of
which disposal by the Fund of securities owned by it is not
reasonably practicable or it is not reasonably practicable for
the Fund fairly to determine the value of its net assets, or
during any other period when the Securities and Exchange
Commission, by order, so permits.
SECTION 5. Plan of Distribution.
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(a) It is understood that Sections 5, 12 and 16 hereof
together constitute a plan of distribution (the "Plan") within
the meaning of Rule 12b-1 adopted by the Securities and Exchange
Commission under the Investment Company Act ("Rule 12b-1").
(b) Except as may be required by NASD rules and
interpretations, the Fund will pay to the Underwriter each month
a distribution services fee with respect to the Fund that will
not exceed, on an annualized basis, .30% of the aggregate average
daily net assets of the Fund attributable to the Class A shares,
1.00% of the aggregate average daily net assets of the Fund
attributable to the Class B shares and 1.00% of the aggregate
average daily net assets of the Fund attributable to the Class C
shares. The distribution services fee will be used in its
entirety by the Underwriter to make payments (i) to compensate
broker-dealers or other persons for providing distribution
assistance, (ii) to otherwise promote the sale of shares,
including payment for the preparation, printing and distribution
of prospectuses and sales literature or other promotional
activities, and (iii) to compensate broker-dealers, depository
institutions and other financial intermediaries for providing
administrative, accounting and other services with respect to the
Fund's shareholders. A portion of the distribution services fee
that will not exceed, on an annualized basis, .25% of the
aggregate average daily net assets of the Fund attributable to
each of the Class A shares, Class B shares and Class C shares
will constitute a service fee that will be used by the
Underwriter for personal service and/or the maintenance of
shareholder accounts within the meaning of NASD rules and
interpretations.
(c) Alliance Capital Management L.P., the Fund's
investment adviser (the "Adviser"), may, with respect to any and
all classes of shares of the Fund, make payments from time to
time from its own resources for the purposes described in Section
5(b) hereof.
(d) Payments to broker-dealers, depository institutions
and other financial intermediaries for the purposes set forth in
Section 5(b) are subject to the terms and conditions of the
respective written agreements between the Underwriter and each
broker-dealer, depository institution or other financial
intermediary. Such agreements will be in a form satisfactory to
the Directors of the Fund.
(e) The Treasurer of the Fund will prepare and furnish
to the Fund's Directors, and the Directors will review, at least
quarterly, a written report complying with the requirements of
Rule 12b-1 setting forth all amounts expended hereunder and the
purposes for which such expenditures were made.
(f) The Fund is not obligated to pay any distribution
expenses in excess of the distribution services fee described
above in Section 5(b) hereof. Any expenses of distribution of the
Fund's Class A shares accrued by the Underwriter in one fiscal
year of the Fund may not be paid from distribution services fees
received from the Fund in respect of Class A shares in another
fiscal year. Any expenses of distribution of the Fund's Class B
shares or Class C shares accrued by the Underwriter in one fiscal
year of the Fund may be carried forward and paid from
distribution services fees received from the Fund in respect of
such class of shares in another fiscal year. No portion of the
distribution services fees received from the Fund in respect of
Class A shares may be used to pay any interest expense, carrying
charges or other financing costs or allocation of overhead of the
Underwriter. The distribution services fees received from the
Fund in respect of Class B shares and Class C shares may be used
to pay interest expenses, carrying charges and other financing
costs or allocation of overhead of the Underwriter to the extent
permitted by Securities and Exchange Commission rules,
regulations or Securities and Exchange Commission staff no-action
or interpretative positions in effect from time to time. In the
event this Agreement is terminated by either party or is not
continued with respect to a class of shares as provided in
Section 12 below: (i) no distribution services fees (other than
current amounts accrued but not yet paid) will be owed by the
Fund to the Underwriter with respect to that class, and (ii) the
Fund will not be obligated to pay the Underwriter for any amounts
expended hereunder not previously reimbursed by the Fund from
distribution services fees in respect of shares of such class or
recovered through deferred sales charges. The distribution
services fee of a particular class may not be used to subsidize
the sale of shares of any other class.
SECTION 6. Duties of the Fund.
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(a) The Fund shall furnish to the Underwriter copies of
all information, financial statements and other papers that the
Underwriter may reasonably request for use in connection with the
distribution of shares of the Fund, and this shall include one
certified copy, upon request by the Underwriter, of all financial
statements prepared for the Fund by the Fund's independent public
accountants. The Fund shall make available to the Underwriter
such number of copies of the Prospectus and Statement of
Additional Information as the Underwriter shall reasonably
request.
(b) The Fund shall take, from time to time, but subject
to any necessary approval of its shareholders, all necessary
action to fix the number of authorized shares and such steps as
may be necessary to register the same under the Securities Act,
to the end that there will be available for sale such number of
shares as the Underwriter reasonably may be expected to sell.
(c) The Fund shall use its best efforts to qualify for
sale and maintain the qualification for sale of an appropriate
number of its shares under the securities laws of such states as
the Underwriter and the Fund may approve. Any such qualification
may be withheld, terminated or withdrawn by the Fund at any time
in its discretion. As provided in Section 9(b) hereof, the
expense of qualification and maintenance of qualification shall
be borne by the Fund. The Underwriter shall furnish such
information and other material relating to its affairs and
activities as may be required by the Fund in connection with such
qualification.
(d) The Fund will furnish, in reasonable quantities
upon request by the Underwriter, copies of annual and interim
reports of the Fund.
SECTION 7. Duties of the Underwriter.
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(a) The Underwriter shall devote reasonable time and
effort to effect sales of shares of the Fund, but shall not be
obligated to sell any specific number of shares. The services
hereunder of the Underwriter to the Fund are not to be deemed
exclusive as to the Underwriter and nothing in this Agreement
shall prevent the Underwriter from entering into like
arrangements with other investment companies so long as the
performance of its obligations hereunder is not impaired thereby.
(b) In selling shares of the Fund, the Underwriter
shall use its best efforts in all material respects duly to
conform with the requirements of all federal and state laws
relating to the sale of such securities. Neither the Underwriter,
any selected dealer, any selected agent nor any other person is
authorized by the Fund to give any information or to make any
representations, other than those contained in the Fund's
Registration Statement on Form N-1A (the "Registration
Statement"), as amended from time to time, under the Securities
Act and the Investment Company Act or the Prospectus and
Statement of Additional Information or in any sales literature
specifically approved in writing by the Fund.
(c) The Underwriter shall adopt and follow procedures,
as approved by the appropriate officers of the Fund, for the
confirmation of sales to investors and selected dealers, the
collection of amounts payable by investors and selected dealers
on such sales, and the cancellation of unsettled transactions, as
may be necessary to comply with the requirements of the NASD, as
such requirements may from time to time exist.
SECTION 8. Selected Dealer and Agent Agreements.
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(a) The Underwriter shall have the right to enter into
selected dealer agreements with securities dealers of its choice
("selected dealers") and selected agent agreements with
depository institutions and other financial intermediaries of its
choice ("selected agents") for the sale of shares and fix therein
the portion of the sales charge that may be allocated to the
selected dealers and selected agents; provided, that the Fund
shall approve the forms of agreements with selected dealers and
selected agents and the selected dealer and selected agent
compensation set forth therein. Shares sold to selected dealers
or through selected agents shall be for resale by such selected
dealers and for sale through such selected agents only at the
public offering price set forth in the Prospectus and/or
Statement of Additional Information.
(b) Within the United States, the Underwriter shall
offer and sell shares only to such selected dealers as are
members in good standing of the NASD.
SECTION 9. Payment of Expenses.
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(a) The Fund shall bear all costs and expenses of the
Fund, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of its
Registration Statement and Prospectus and Statement of Additional
Information, and all amendments and supplements thereto, and
preparing and mailing annual and interim reports and proxy
materials to shareholders (including but not limited to the
expense of printing any such registration statements,
prospectuses, annual or interim reports or proxy materials).
(b) The Fund shall bear the cost of expenses of
qualification of shares for sale, and, if necessary or advisable
in connection therewith, of qualifying the Fund as an issuer or
as a broker or dealer, in such states of the United States or
other jurisdiction as shall be selected by the Fund and the
Underwriter pursuant to Section 6(c) hereof and the cost and
expenses payable to each such state for continuing qualification
therein until the Fund decides to discontinue such qualification
pursuant to Section 6(c) hereof.
SECTION 10. Indemnification.
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(a) The Fund shall indemnify, defend and hold the
Underwriter, and any person who controls the Underwriter within
the meaning of Section 15 of the Securities Act, free and
harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Underwriter or
any such controlling person may incur, under the Securities Act,
or under common law or otherwise, arising out of or based upon
any alleged untrue statement of a material fact contained in the
Fund's Registration Statement, Prospectus or Statement of
Additional Information in effect from time to time under the
Securities Act or arising out of or based upon any alleged
omission to state a material fact required to be stated in any
one thereof or necessary to make the statements in any one
thereof not misleading; provided, however, that in no event shall
anything herein contained be so construed as to protect the
Underwriter against any liability to the Fund or its security
holders to which the Underwriter would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of the Underwriter's
reckless disregard of its obligations and duties under this
Agreement. The Fund's agreement to indemnify the Underwriter and
any such controlling person as aforesaid is expressly conditioned
upon the Fund's being notified of the commencement of any action
brought against the Underwriter or any such controlling person,
such notification to be given by letter or by telegram addressed
to the Fund at its principal office in New York, New York, and
sent to the Fund by the person against whom such action is
brought within ten days after the summons or other first legal
process shall have been served. The failure to so notify the Fund
of the commencement of any such action shall not relieve the Fund
from any liability which it may have to the person against whom
such action is brought by reason of any such alleged untrue
statement or omission otherwise than on account of the indemnity
agreement contained in this Section 10. The Fund will be entitled
to assume the defense of any suit brought to enforce any such
claim, and to retain counsel of good standing chosen by the Fund
and approved by the Underwriter. In the event the Fund does not
elect to assume the defense of any such suit and retain counsel
of good standing approved by the Underwriter, the defendant or
defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but if the Fund does
not elect to assume the defense of any such suit, or in case the
Underwriter does not approve of counsel chosen by the Fund, the
Fund will reimburse the Underwriter or the controlling person or
persons named as defendant or defendants in such suit, for the
fees and expenses of any counsel retained by the Underwriter or
any such person. The indemnification agreement contained in this
Section 10 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the
Underwriter or any controlling person and shall survive the sale
of any of the Fund's shares made pursuant to subscriptions
obtained by the Underwriter. This agreement of indemnity will
inure exclusively to the benefit of the Underwriter, to the
benefit of its successors and assigns, and to the benefit of any
controlling persons and their successors and assigns. The Fund
shall promptly notify the Underwriter of the commencement of any
litigation or proceeding against the Fund in connection with the
issue and sale of any of its shares.
(b) The Underwriter shall indemnify, defend and hold
the Fund, its several officers and directors, and any person who
controls the Fund within the meaning of Section 15 of the
Securities Act, free and harmless from and against any and all
claims, demands, liabilities, and expenses (including the cost of
investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the
Fund, its officers or directors, or any such controlling person
may incur under the Securities Act or under common law or
otherwise, but only to the extent that such liability, or expense
incurred by the Fund, its officers, directors or such controlling
person resulting from such claims or demands shall arise out of
or be based upon any alleged untrue statement of a material fact
contained in information furnished in writing by the Underwriter
to the Fund for use in its Registration Statement, Prospectus or
Statement of Additional Information in effect from time to time
under the Securities Act, or shall arise out of or be based upon
any alleged omission to state a material fact in connection with
such information required to be stated in the Registration
Statement, Prospectus or Statement of Additional Information or
necessary to make such information not misleading. The
Underwriter's agreement to indemnify the Fund, its officers and
directors, and any such controlling person as aforesaid is
expressly conditioned upon the Underwriter being notified of the
commencement of any action brought against the Fund, its officers
or directors or any such controlling person, such notification to
be given by letter or telegram addressed to the Underwriter at
its principal office in New York, and sent to the Underwriter by
the person against whom such action is brought, within ten days
after the summons or other first legal process shall have been
served. The Underwriter shall have a right to control the defense
of such action, with counsel of its own choosing, satisfactory to
the Fund, if such action is based solely upon such alleged
misstatement or omission on its part, and in any other event the
Underwriter and the Fund, and their officers and directors or
such controlling person, shall each have the right to participate
in the defense or preparation of the defense of any such action.
The failure so to notify the Underwriter of the commencement of
any such action shall not relieve the Underwriter from any
liability which it may have to the Fund, to its officers and
directors, or to such controlling person by reason of any such
untrue statement or omission on the part of the Underwriter
otherwise than on account of the indemnity agreement contained in
this Section 10.
SECTION 11. Notification by the Fund.
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The Fund shall advise the Underwriter immediately:
(a) of any request by the Securities and Exchange
Commission for any amendment to the Fund's Registration
Statement, Prospectus or Statement of Additional Information or
for additional information,
(b) of the happening of any material event which makes
untrue any statement made in the Fund's Registration Statement,
Prospectus or Statement of Additional Information or which
requires the making of a change in any one thereof in order to
make the statements therein not misleading,
(c) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the Fund's Registration Statement, Prospectus or
Statement of Additional Information or the initiation of any
proceeding for that purpose, and
(d) of all actions of the Securities and Exchange
Commission with respect to any amendment to the Fund's
Registration Statement, Prospectus or Statement of Additional
Information which may from time to time be filed with the
Securities and Exchange Commission under the Securities Act.
SECTION 12. Term of Agreement.
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(a) This Agreement shall become effective on July 10,
2002 and shall continue in effect until December 31, 2002 and
continue in effect thereafter with respect to each class of
shares so long as its continuance with respect to that class is
specifically approved annually by the Directors of the Fund or by
vote of the holders of a majority of the outstanding voting
securities (as defined in the Investment Company Act) of that
class, and, in either case, by a majority of the Directors of the
Fund who are not parties to this Agreement or interested persons,
as defined in the Investment Company Act, of any such party
(other than as directors of the Fund) and who have no direct or
indirect financial interest in the operation of the Plan or any
agreement related thereto; provided, however, that if the
continuation of this Agreement is not approved as to a class, the
Underwriter may continue to render to such class the services
described herein in the manner and to the extent permitted by the
Act and the rules and regulations thereunder. Upon effectiveness
of this Agreement, it shall supersede all previous agreements
between the parties hereto covering the subject matter hereof.
This Agreement may be terminated (i) by the Fund with respect to
any class at any time, without the payment of any penalty, by the
vote of a majority of the outstanding voting securities (as so
defined) of such class, or by a vote of a majority of the
Directors of the Fund who are not interested persons, as defined
in the Investment Company Act, of the Fund (other than as
directors of the Fund) and have no direct and indirect financial
interest in the operation of the Plan or any agreement related
thereto, in any such event on sixty days' written notice to the
Underwriter; provided, however, that no such notice shall be
required if such termination is stated by the Fund to relate only
to Sections 5 and 16 hereof (in which event Sections 5 and 16
shall be deemed to have been severed herefrom and all other
provisions of this Agreement shall continue in full force and
effect), or (ii) by the Underwriter on sixty days' written notice
to the Fund.
(b) This Agreement may be amended at any time with the
approval of the Directors of the Fund, provided that (i) any
material amendments of the terms hereof will become effective
only upon approval as provided in the first sentence of Section
12(a) hereof, and (ii) any amendment to increase materially the
amount to be expended for distribution services fees pursuant to
Section 5(b) hereof will be effective only upon the additional
approval by a vote of a majority of the outstanding voting
securities as defined in the Investment Company Act of the class
affected.
SECTION 13. No Assignment.
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This Agreement may not be transferred, assigned, sold
or in any manner hypothecated or pledged by either party hereto,
and this Agreement shall terminate automatically in the event of
any such transfer, assignment, sale, hypothecation or pledge. The
terms "transfer", "assignment", and "sale" as used in this
paragraph shall have the meanings ascribed thereto by governing
law and any interpretation thereof contained in rules or
regulations promulgated by the Securities and Exchange Commission
thereunder.
SECTION 14. Notices.
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Any notice required or permitted to be given hereunder
by either party to the other shall be deemed sufficiently given
if sent by registered mail, postage prepaid, addressed by the
party giving such notice to the other party at the last address
furnished by such other party to the party given notice, and
unless and until changed pursuant to the foregoing provisions
hereof addressed to the Fund or the Underwriter.
SECTION 15. Governing Law.
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The provisions of this Agreement shall be, to the
extent applicable, construed and interpreted in accordance with
the laws of the State of New York.
SECTION 16. Disinterested Directors of the Fund.
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While this Agreement is in effect, the selection and
nomination of the Directors who are not "interested persons" of
the Fund (as defined in the Investment Company Act) will be
committed to the discretion of such disinterested Directors.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement.
ALLIANCE DYNAMIC GROWTH FUND, INC.
By:
-------------------------------
ALLIANCE FUND DISTRIBUTORS, INC.
By:
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Accepted as to
Sections 5, 12 and 16
as of ___________:
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation,
General Partner
By:
--------------------------------
00250.0073 #327986
