Alliance International Fund, Inc.
811-03130
Exhibit 77M
AGREEMENT AND PLAN OF ACQUISITION AND LIQUIDATION
AS OF APRIL 4, 2002
This Agreement and Plan of Acquisition and Liquidation (the "Plan") is
made as of this 4th day of April, 2002, by and between the AllianceBernstein
International Value Fund of AllianceBernstein Trust, a Massachusetts business
trust ("ABT Value"), and Alliance International Fund, a Massachusetts
business trust (the "Acquired Fund").
WHEREAS, ABT Value and the Acquired Fund are open-end management
investment companies registered with the Securities and Exchange Commission
(the "SEC") under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the parties desire that ABT Value acquire the assets and
assume the liabilities of the Acquired Fund in exchange for shares of equal
net asset value of ABT Value and the distribution of such shares of ABT Value
to the shareholders of the Acquired Fund (the "Acquisition") and that the
Acquired Fund thereafter liquidate and dissolve; and
WHEREAS, the parties intend that the Acquisition qualify as a
"reorganization" within the meaning of section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that with respect to the
Acquisition, ABT Value and the Acquired Fund will each be a "party to a
reorganization" within the meaning of section 368(b) of the Code;
Now, therefore, ABT Value and the Acquired Fund agree as follows:
1. Definitions.
In addition to the terms elsewhere defined herein, each of the
following terms shall have the meaning indicated for that term as follows:
1933 Act
Securities Act of 1933, as amended.
1934 Act
Securities Exchange Act of 1934, as amended.
Assets
All assets of any kind and all interests, rights, privileges and
powers of or attributable to the Acquired Fund or any class of the
Acquired Fund's shares, as appropriate, at the Effective Time
(or, for purposes of Section 4(d) hereof, the time of delivery of the
list referred to therein), whether or not determinable at the appropriate
Effective Time and wherever located, including, without limitation, all
cash, cash equivalents, securities, claims (whether absolute or
contingent, known or unknown, accrued or unaccrued or conditional or
unmatured), contract rights and receivables (including dividend and
interest receivables) owned by the Acquired Fund or attributable to any
class of the Acquired Fund's shares and any deferred or prepaid expense
shown as an asset on the Acquired Fund's books.
Closing Date
Such date prior to December 31, 2002 as the parties agree to.
Effective Time
5:00 p.m. Eastern time on the Closing Date, or such other time as the
parties may agree to in writing.
Financial Statements
The audited financial statements of the relevant Fund for its most
recently completed fiscal year and, if applicable, the unaudited financial
statements of that Fund for its most recently completed semi-annual period.
Fund
ABT Value and/or the Acquired Fund, as the case may be.
Liabilities
All liabilities of the Acquired Fund or any class thereof, whether known or
unknown, accrued or unaccrued, absolute or contingent or conditional
or unmatured.
N-14 Registration Statement
The Registration Statement of AllianceBernstein Trust ("AB Trust")
on Form N-14 under the 1940 Act that will register the shares of ABT Value
to be issued in the Acquisition and will include the proxy materials
necessary for the shareholders of the Acquired Fund to approve the
Acquisition.
Valuation Time
The time on the Closing Date, or the business day immediately preceding the
Closing Date if the Closing Date is not a business day or such other date
as the parties may agree to in writing, when for purposes of the Plan
ABT Value determines its net asset value per share and the Acquired Fund
determines the net value of the Assets.
2. Regulatory Filing.
ABT Value shall promptly prepare and file the N-14 Registration
Statement with the SEC, and ABT Value and the Acquired Fund also shall make
any other required or appropriate filings with respect to the actions
contemplated hereby.
3. Shareholder Action.
As soon as practicable after the effective date of the N-14
Registration Statement, the Acquired Fund shall hold a shareholder meeting to
consider and approve the Acquisition and this Plan, and such other matters as
the Board of Trustees of the Acquired Fund may determine. Such approval by
the shareholders of the Acquired Fund shall, to the extent necessary to
permit the consummation of the transactions contemplated herein without
violating any investment objective, policy or restriction of the Acquired
Fund, be deemed to constitute approval by the shareholders of a temporary
amendment of any investment objective, policy or restriction that would
otherwise be inconsistent with or violated upon the consummation of such
transactions solely for the purpose of consummating such transactions.
4. Transfer of the Acquired Fund's Assets. ABT Value and the
Acquired Fund shall take the following steps with respect to the Acquisition,
as applicable:
(a) On or prior to the Closing Date, the Acquired Fund shall
pay or provide for the payment of all of the Liabilities, expenses,
costs and charges of or attributable to the Acquired Fund that are
known to the Acquired Fund and that are due and payable prior to or as
of the Closing Date.
(b) Prior to the Effective Time, the Acquired Fund shall
declare and pay to its shareholders on its normal monthly schedule a
dividend and/or other distribution in an amount such that it will have
distributed substantially all of its theretofore undistributed
investment company taxable income, if any (as defined in Code section
852), and net capital gain, if any (as defined in Code section 1222).
(c) Within a reasonable time prior to the Closing Date, the
Acquired Fund shall provide, if requested, a list of the Assets to ABT
Value. The Acquired Fund may sell any Asset on such list prior to the
Effective Time. After the Acquired Fund provides such list, the
Acquired Fund will not acquire any additional securities or permit to
exist any encumbrances, rights, restrictions or claims not reflected on
such list, without the approval of ABT Value. Within a reasonable time
after receipt of the list and prior to the Closing Date, ABT Value will
advise the Acquired Fund in writing of any investments shown on the
list that ABT Value has determined to be inconsistent with its
investment objective, policies and restrictions. The Acquired Fund
will dispose of any such securities prior to the Closing Date to the
extent practicable and consistent with applicable legal requirements,
including the Acquired Fund's investment objectives, policies and
restrictions. In addition, if ABT Value determines that, as a result of
the Acquisition, ABT Value would own an aggregate amount of an
investment that would exceed a percentage limitation applicable to ABT
Value, ABT Value will advise the Acquired Fund in writing of any such
limitation and the Acquired Fund shall dispose of a sufficient amount
of such investment as may be necessary to avoid the limitation as of
the Effective Time, to the extent practicable and consistent with
applicable legal requirements, including the Acquired Fund's investment
objectives, policies and restrictions.
(d) The Acquired Fund shall assign, transfer, deliver and
convey the Assets to ABT Value at the Effective Time on the following
basis:
(1) ABT Value shall simultaneously issue and deliver to
the Acquired Fund that number of full and fractional shares of
beneficial interest of each class of ABT Value, rounded to the
third decimal place or such other decimal place as the parties
may agree to in writing, determined by dividing the value of the
Assets less the Liabilities attributable to a class of the
Acquired Fund by the net asset value per share of the
corresponding class of ABT Value.
(2) The net asset value of the shares of ABT Value to be
delivered to the Acquired Fund shall be determined as of the
Valuation Time in accordance with ABT Value's then applicable
valuation procedures, and for this purpose, the net value of the
Assets to be conveyed to ABT Value shall be determined as of the
Valuation Time in accordance with the then applicable valuation
procedures of ABT Value.
(3) The Acquired Fund shall deliver the Assets with good
and marketable title to the custodian for the account of ABT
Value. All cash shall be transferred in the form of immediately
available funds payable to the order of ABT Value's custodian.
(e) Promptly after the Closing Date, the Acquired Fund will
deliver to ABT Value a Statement of Assets and Liabilities of the
Acquired Fund as of the Closing Date.
5. Liquidation and Dissolution of the Acquired Fund, Registration of
Shares of ABT Value and Access to Records. The Acquired Fund and ABT Value
also shall take the following steps, as applicable:
(a) At or as soon as reasonably practical after the Effective
Time, the Acquired Fund shall liquidate and dissolve by transferring to
shareholders of record of each class of the Acquired Fund full and
fractional shares of beneficial interest of the corresponding class of
ABT Value equal in value to the shares of the class of the Acquired
Fund held by the shareholder. Each shareholder also shall have the
right to receive any unpaid dividends or other distributions that the
Acquired Fund declared with respect to the class of the Acquired Fund's
shares held by the shareholder before the Effective Time. ABT Value
shall record on its books the ownership by the Acquired Fund's
shareholders of ABT Value shares so transferred to such shareholders
and the Acquired Fund shall simultaneously redeem and cancel on its
books all of the issued and outstanding shares of each class of the
Acquired Fund. ABT Value shall issue certificates representing ABT
Value shares in accordance with the then current ABT Value prospectus;
provided, however, that ABT Value shall not issue certificates
representing ABT Value shares to replace certificates representing
Acquired Fund shares unless the Acquired Fund share certificates are
first surrendered to ABT Value. Following distribution by the Acquired
Fund to its shareholders of all of the shares of ABT Value delivered to
the Acquired Fund, the Acquired Fund shall wind up its affairs and
shall take all steps as are necessary and proper to dissolve as soon as
is reasonably possible after the Effective Time.
(b) At and after the Closing Date, the Acquired Fund shall
provide ABT Value and its transfer agent with immediate access to: (i)
all records containing the names, addresses and taxpayer identification
numbers of all of the Acquired Fund's shareholders and the number and
percentage ownership of the outstanding shares of each class of the
Acquired Fund owned by shareholders as of the Effective Time, and (ii)
all original documentation (including all applicable Internal Revenue
Service forms, certificates, certifications and correspondence)
relating to the Acquired Fund shareholders' taxpayer identification
numbers and their liability for or exemption from back-up withholding.
The Acquired Fund shall preserve and maintain, or shall direct its
service providers to preserve and maintain, records with respect to the
Acquired Fund as required by Section 31 of, and Rules 31a-1 and 31a-2
under, the 1940 Act.
6. Certain Representations and Warranties of the Acquired Fund. The
Acquired Fund represents and warrants to ABT Value as follows:
(a) The Acquired Fund is duly formed, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts and
has the power to own all of its properties and assets and to carry out
its obligations under this Plan. The Board of Trustees of the Acquired
Fund duly established and designated each class of the Acquired Fund as
a class of the Acquired Fund. The Acquired Fund is registered with the
SEC as an open-end management investment company under the 1940 Act,
and such registration will be in full force and effect as of the
Effective Time.
(b) The Acquired Fund has the power and all necessary federal,
state and local qualifications and authorizations to own all the
Assets, to carry on its business, to enter into this Plan and to
consummate the transactions contemplated herein.
(c) The Trustees of the Acquired Fund have duly authorized the
execution and delivery of this Plan and the transactions contemplated
herein. Duly authorized officers of the Acquired Fund have executed
and delivered the Plan. Assuming that the Plan has been duly
authorized and executed by AB Trust on behalf of ABT Value, the Plan
represents a valid and binding contract, enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The execution and delivery of this Plan does
not, and, subject to the approval of its shareholders referred to in
Section 3 hereof, the consummation of the transactions contemplated by
this Plan will not, violate the Acquired Fund's Agreement and
Declaration of Trust, its By-Laws or any material agreement to which
the Acquired Fund is subject. Except for the approval of its
shareholders, the Acquired Fund does not need to take any other action
to authorize its officers to effectuate this Plan and the transactions
contemplated herein.
(d) The Acquired Fund has qualified as a regulated investment
company under Part I of Subchapter M of Subtitle A, Chapter 1, of the
Code, in respect of each taxable year since the commencement of its
operations and will continue to qualify as a regulated investment
company thereunder for its taxable year ending upon its liquidation.
(e) The information pertaining to the Acquired Fund included
within the N-14 Registration Statement when filed with the SEC, when
Part A of the N-14 Registration Statement is distributed to
shareholders, at the time of the shareholder meeting of the Acquired
Fund for approval of the Acquisition and at the Effective Time shall
(i) comply in all material respects with the applicable provisions of
the 1933 Act, the 1934 Act and the 1940 Act, and the rules and
regulations thereunder and applicable state securities laws, and (ii)
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein not misleading.
(f) The Acquired Fund has duly authorized and validly issued
all of its issued and outstanding shares of beneficial interest, and
all such shares are fully paid and non-assessable and were offered for
sale and sold in conformity with the registration requirements of all
applicable federal and state securities laws. There are no outstanding
options, warrants or other rights to subscribe for or purchase any of
the shares of the Acquired Fund, nor are there any securities
convertible into shares of the Acquired Fund.
(g) Except as contemplated herein, the Acquired Fund shall
operate its business in the ordinary course between the date hereof and
the Effective Time. Such ordinary course of business will include the
declaration and payment of customary dividends and distributions and
any other dividends and distributions referred to in Section 4(b)
hereof.
(h) At the Effective Time, the Acquired Fund will have good and
marketable title to the Assets and full right, power and authority to
assign, transfer, deliver and convey the Assets.
(i) The Financial Statements of the Acquired Fund, a copy of
which has been previously delivered to ABT Value, fairly present the
financial position of the Acquired Fund as of the Acquired Fund's most
recent fiscal year-end and, if applicable, as of the most recently
completed semi-annual period and the results of the Acquired Fund's
operations and changes in the Acquired Fund's net assets for the
periods indicated.
(j) To the knowledge of the Acquired Fund, the Acquired Fund
has no liabilities, whether or not determined or determinable, other
than the Liabilities disclosed or provided for in its Financial
Statements or Liabilities incurred in the ordinary course of business
subsequent to the date of the most recent Financial Statement
referencing Liabilities.
(k) The Acquired Fund does not know of any claims, actions,
suits, investigations or proceedings of any type pending or threatened
against the Acquired Fund. There are no facts that the Acquired Fund
has reason to believe are likely to form the basis for the institution
of any such claim, action, suit, investigation or proceeding against
the Acquired Fund. The Acquired Fund is not a party to or subject to
the provisions of any order, decree or judgment of any court or
governmental body that adversely affects, or is reasonably likely to
adversely affect, its financial condition, results of operations, or
the Assets or its ability to consummate the transactions contemplated
by the Plan.
(l) Except for agreements entered into or granted in the
ordinary course of its business, in each case under which no material
default exists, the Acquired Fund is not a party to or subject to any
material contract, debt instrument, employee benefit plan, lease,
franchise, license or permit of any kind or nature whatsoever.
(m) The Acquired Fund has filed its federal income tax returns,
copies of which have been previously made available to ABT Value, for
all taxable years for which such returns are due and has paid all taxes
payable pursuant to such returns. No such return is currently under
audit and no unpaid assessment has been asserted with respect to such
returns. The Acquired Fund will timely file its federal income tax
return for each subsequent taxable year including its current taxable
year.
(n) Since the date of the Financial Statements of the Acquired
Fund, there has been no material adverse change in its financial
condition, results of operations, business or Assets. For this purpose,
negative investment performance shall not be considered a material
adverse change.
7. Certain Representations and Warranties of ABT Value. AB Trust,
on behalf of ABT Value, represents and warrants to the Acquired Fund as
follows:
(a) AB Trust is duly formed, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts. The
Trustees of AB Trust duly established and designated ABT Value as a
series of AB Trust and each class of shares of ABT Value as a class of
ABT Value. AB Trust is registered with the SEC as an open-end
management investment company under the 1940 Act, and such registration
will be in full force and effect as of the Effective Time.
(b) On behalf of ABT Value, AB Trust has the power and all
necessary federal, state and local qualifications and authorizations to
own all of its assets, to carry on its business, to enter into this
Plan and to consummate the transactions contemplated herein.
(c) On behalf of ABT Value, the Trustees of AB Trust have duly
authorized execution and delivery of this Plan and the transactions
contemplated herein. Duly authorized officers of AB Trust have
executed and delivered the Plan. Assuming that the Plan has been duly
authorized and executed by the Acquired Fund, the Plan represents a
valid and binding contract, enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated by this Plan will not,
violate the Agreement and Declaration of Trust of AB Trust, its By-Laws
or any material agreement to which ABT Value is subject. AB Trust does
not need to take any other action to authorize its officers to
effectuate the Plan and the transactions contemplated herein.
(d) ABT Value has qualified as a regulated investment company
under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code in
respect of each taxable year since the commencement of its operations
and qualifies and will continue to qualify as a regulated investment
company thereunder for its current taxable year.
(e) The N-14 Registration Statement, when filed with the SEC,
when Part A of the N-14 Registration Statement is distributed to
shareholders, at the time of the shareholder meeting of the Acquired
Fund for the approval of the Acquisition and at the Effective Time,
insofar as it relates to ABT Value shall (i) comply in all material
respects with the applicable provisions of the 1933 Act, the 1934 Act
and the 1940 Act, and the rules and regulations thereunder and
applicable state securities laws, and (ii) not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements made therein
not misleading.
(f) On behalf of ABT Value, AB Trust has duly authorized and
validly issued all of the issued and outstanding shares of beneficial
interest of ABT Value, and all such shares are fully paid and non-
assessable and were offered for sale and sold in conformity with the
registration requirements of all applicable federal and state
securities laws. AB Trust has duly authorized shares of ABT Value to
be issued and delivered to the Acquired Fund as of the Effective Time.
When issued and delivered, such shares of ABT Value shall be validly
issued, fully paid and non-assessable, and no shareholder of ABT Value
shall have any preemptive right of subscription or purchase in respect
of any such share. There are no outstanding options, warrants or other
rights to subscribe for or purchase any shares of ABT Value, nor are
there any securities convertible into shares of ABT Value.
(g) ABT Value does not know of any claims, actions, suits,
investigations or proceedings of any type pending or threatened against
ABT Value. There are no facts that ABT Value currently has reason to
believe are likely to form the basis for the institution of any such
claim, action, suit, investigation or proceeding against ABT Value.
ABT Value is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that adversely
affects, or is reasonably likely to adversely affect, its financial
condition, results of operations, its assets or its ability to
consummate the transactions contemplated by the Plan.
(h) Except for agreements entered into or granted in the
ordinary course of its business, in each case under which no material
default exists, ABT Value is not a party to or subject to any material
contract, debt instrument, employee benefit plan, lease, franchise,
license or permit of any kind or nature whatsoever.
(i) AB Trust has filed its federal income tax returns, copies
of which have been previously made available to the Acquired Fund, for
all taxable years for which such returns are due and has paid all taxes
payable pursuant to such returns. No such return is currently under
audit and no unpaid assessment has been asserted with respect to such
returns. AB Trust will timely file its federal income tax return for
each subsequent taxable year including its current taxable year.
(j) Since the date of the Financial Statements of ABT Value,
there has been no material adverse change in its financial condition,
results of operations, business or assets. Negative investment
performance shall not be considered a material adverse change.
8. Conditions to the Obligations of ABT Value and the Acquired Fund.
The obligations of ABT Value and the Acquired Fund with respect to the
Acquisition shall be subject to the following conditions precedent:
(a) The shareholders of the Acquired Fund shall have approved
the Acquisition in the manner required by the Agreement and Declaration
of Trust of the Acquired Fund, its By-Laws and applicable law. If
shareholders of the Acquired Fund fail to approve the Acquisition, that
failure shall release the Funds of their obligations under this Plan.
(b) ABT Value and the Acquired Fund shall have delivered to the
other party a certificate dated as of the Closing Date and executed in
its name by its President in a form reasonably satisfactory to the
receiving party, stating that the representations and warranties of ABT
Value or the Acquired Fund, as applicable, in this Plan that apply to
the Acquisition are true and correct in all material respects at and as
of the Valuation Time.
(c) AB Trust, on behalf of ABT Value, and the Acquired Fund
shall have performed and complied in all material respects with each of
its representations and warranties required by this Plan to be
performed or complied with by it prior to or at the Valuation Time and
the Effective Time.
(d) There has been no material adverse change in the financial
condition, results of operations, business, properties or assets of the
Acquired Fund or ABT Value since April 4, 2002. Negative investment
performance shall not be considered a material adverse change.
(e) ABT Value and the Acquired Fund shall have received an
opinion of Ropes & Xxxx, in form and substance reasonably satisfactory
to each of them, based in part upon factual representations made in
certificates provided by the Funds, their affiliates and/or principal
shareholders and dated as of the Closing Date, and upon assumptions
stated therein, substantially to the effect that, for federal income
tax purposes:
(1) the Acquisition will constitute a "reorganization"
within the meaning of section 368(a) of the Code and that ABT
Value and the Acquired Fund will each be "a party to a
reorganization" within the meaning of section 368(b) of the Code;
(2) each shareholder of the Acquired Fund will recognize
no gain or loss on such shareholder's receipt of shares of ABT
Value (including any fractional share to which the shareholder
may be entitled) in exchange for the shareholder's shares of the
Acquired Fund in connection with the Acquisition;
(3) neither the Acquired Fund nor ABT Value will
recognize any gain or loss upon the transfer of all of the Assets
to ABT Value in exchange for shares of ABT Value and the
assumption by ABT Value of the Liabilities pursuant to this Plan
or upon the distribution of shares of ABT Value to shareholders
of the Acquired Fund in exchange for their respective shares of
Acquired Fund;
(4) the tax basis of the Assets acquired by ABT Value
will be the same as the tax basis that the Acquired Fund had in
such Assets immediately prior to the Acquisition;
(5) the holding period of the Assets acquired by ABT
Value will include the respective holding periods for which the
Assets were held by the Acquired Fund immediately prior to the
Acquisition;
(6) the aggregate tax basis of ABT Value shares received
in connection with the Acquisition by each shareholder of the
Acquired Fund (including any fractional share to which the
shareholder may be entitled) will be the same as the aggregate
tax basis of the shares of the Acquired Fund surrendered in
exchange therefor;
(7) the holding period of ABT Value shares received in
connection with the Acquisition by each shareholder of the
Acquired Fund (including any fractional share to which the
shareholder may be entitled) will include the holding period of
the shares of the Acquired Fund surrendered in exchange therefor,
provided that such Acquired Fund shares constitute capital assets
in the hands of the shareholder as of the Closing Date; and
(8) ABT Value will succeed to the capital loss carryovers
of the Acquired Fund, if any, under Section 381 of the Code, but
the use by ABT Value of any such capital loss carryovers (and of
capital loss carryovers of ABT Value) may be subject to
limitation under section 383 of the Code.
(f) The N-14 Registration Statement shall have become effective
under the 1933 Act as to the shares of ABT Value, and the SEC shall not
have instituted and to the knowledge of ABT Value is not contemplating
instituting, any stop order suspending the effectiveness of the N-14
Registration Statement.
(g) No action, suit or other proceeding shall be threatened or
pending before any court or governmental agency in which it is sought
to restrain or prohibit, or obtain damages or other relief in
connection with, the Acquisition.
(h) The SEC shall not have issued any unfavorable advisory
report under Section 25(b) of the 1940 Act nor instituted any
proceeding seeking to enjoin consummation of the Acquisition under
Section 25(c) of the 1940 Act.
(i) Neither party shall have terminated this Plan with respect
to the Acquisition pursuant to Section 12 of this Plan.
9. Conditions to the Obligations of the Acquired Fund. The
obligations of the Acquired Fund with respect to the Acquisition shall be
subject to the following conditions precedent:
(a) The Acquired Fund shall have received an opinion of Ropes &
Xxxx, as counsel to ABT Value, in form and substance reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date,
substantially to the effect that:
(1) AB Trust is a duly organized and validly existing
unincorporated voluntary association with transferable shares
existing under and by virtue of the laws of The Commonwealth of
Massachusetts (commonly known as a Massachusetts business trust)
and has the powers enumerated in its Agreement and Declaration of
Trust, and ABT Value is a duly established series of AB Trust;
(2) AB Trust is an open-end management investment company
registered under the 1940 Act;
(3) This Plan has been duly authorized, executed and
delivered by AB Trust, on behalf of ABT Value and is a valid and
binding obligation of AB Trust and ABT Value. However, the
opinion referenced in this section 9(a)(2) shall be subject,
inter alia, to such limitations as may be imposed by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors rights generally, and by general
principles of equity;
(4) The shares of ABT Value to be delivered as provided
for by this Plan are duly authorized and upon their delivery as
contemplated by this Plan will be validly issued, fully paid and
non-assessable by AB Trust and ABT Value;
(5) The execution and delivery of this Plan did not, and
the consummation of the Acquisition will not, violate the
Agreement and Declaration of Trust or By-Laws of AB Trust, or any
provision of any agreement known to such counsel to which AB
Trust or ABT Value is a party or by which AB Trust or ABT Value
is bound; and
(6) No consent, approval, authorization or order of any
court or governmental authority is required for the consummation
by AB Trust on behalf of ABT Value of the transaction
contemplated in this Plan, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act.
In rendering such opinion, Ropes & Xxxx may (i) make assumptions regarding
the genuineness of the signatures on all documents examined by them, the
authenticity of all documents submitted to them as originals, and the
conformity to their corresponding originals of all documents submitted to
them as copies, without independent verification thereof, (ii) assume that
this Plan has been duly authorized, executed and delivered by the Acquired
Fund and constitutes the legal, valid and binding obligation of the Acquired
Fund, (iii) limit such opinion to the laws of The Commonwealth of
Massachusetts (not including securities laws or 'blue sky' laws) and the
United States of America, and furthermore state that the opinions expressed
therein do not purport to cover, and no opinion will be expressed with
respect to, the applicability of any provision of state law comparable to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, (iv) define the word
"knowledge" and related terms to mean the knowledge of attorneys then with
such firm who have devoted substantive attention to matters directly related
to this Plan, (v) rely on certificates of officers or Trustees of AB Trust as
to factual matters, and (vi) assume that all documents filed with the SEC in
connection with the transaction contemplated by this Plan comply and complied
at all relevant times with the 1933 Act, the 1934 Act and the 0000 Xxx.
10. Conditions to the Obligations of ABT Value. The obligations of
ABT Value with respect to the Acquisition shall be subject to the following
conditions precedent:
(a) AB Trust shall have received a letter from Alliance Capital
Management L.P. in the form reviewed by its Trustees at their October
29-31, 2001 meeting providing for the indemnification of AB Trust in
respect of certain types of undisclosed liabilities of AIF.
(b) ABT Value shall have received an opinion of Xxxxxx & Xxxxxx
LLP, as counsel to the Acquired Fund, in form and substance reasonably
satisfactory to ABT Value and dated as of the Closing Date,
substantially to the effect that:
(1) The Acquired Fund is duly organized, validly existing
and in good standing under the laws of the Commonwealth of
Massachusetts and is an open-end, management investment company
registered under the 1940 Act;
(2) This Plan has been duly authorized, executed and
delivered by the Acquired Fund and, assuming due authorization,
execution and delivery of this Plan by AB Trust, represents a
legal, valid and binding contract, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and transfer and similar laws
relating to or affecting creditors' rights generally and court
decisions with respect thereto, and further subject to the
application of equitable principles in any proceeding, whether at
law or in equity or with respect to the enforcement of provisions
of the Plan and the effect of judicial decisions which have held
that certain provisions are unenforceable when their enforcement
would violate an implied covenant of good faith and fair dealing
or would be commercially unreasonable or when default under the
Plan is not material;
(3) The execution and delivery of this Plan did not, and
the consummation of the Acquisition will not, violate the
Agreement and Declaration of Trust of the Acquired Fund, its By-
Laws or any agreement of the Acquired Fund, known to such
counsel, after reasonable inquiry; and
(4) No consent, approval, authorization or order of any
federal or state court or administrative or regulatory agency is
required for the Acquired Fund to enter into the Plan or carry
out its terms, except those that have been obtained under the
1933 Act, the 1940 Act and the rules and regulations under those
Acts or that may be required under state securities laws or
subsequent to the Effective Time or when the failure to obtain
the consent, approval, authorization or order would not have a
material adverse effect on the operation of the Acquired Fund.
In rendering such opinion, Xxxxxx & Xxxxxx LLP may (i) make assumptions
regarding the authenticity, genuineness and/or conformity of documents and
copies thereof without independent verification thereof, (ii) limit such
opinion to applicable federal and state law, (iii) define the word
"knowledge" and related terms to mean the knowledge of attorneys then with
such firm who have devoted substantive attention to matters directly related
to this Plan and (iv) rely on certificates of officers or Trustees of the
Acquired Fund as to factual matters.
(c) Except to the extent prohibited by Rule 19b-1 under the
1940 Act, the Acquired Fund shall have declared a dividend or dividends
that, together with all previous such dividends, shall have the effect
of distributing to the shareholders of the Acquired Fund substantially
all of its investment company taxable income, if any (as defined in
Code section 852), and all of its net capital gain, if any, (as defined
in Code section 1222).
11. Survival of Representations and Warranties. No representations,
warranties or covenants in or pursuant to this Plan (including certificates
of officers) hereto shall survive the completion of the transactions
contemplated herein.
12. Termination of Plan. A majority of either Fund's Board of
Trustees may terminate this Plan with respect to that Fund at any time before
the applicable Effective Time if: (i) the Fund's conditions precedent set
forth in Sections 8, 9 or 10, as appropriate, are not satisfied; or (ii) the
Board of Trustees determines that the consummation of the Acquisition is not
in the best interests of the relevant Fund or its shareholders and gives
notice of such termination to the other party.
13. Governing Law. This Plan and the transactions contemplated
hereby shall be governed, construed and enforced in accordance with the laws
of the State of New York, except to the extent preempted by federal law,
without regard to conflicts of law principles.
14. Brokerage Fees. Each party represents and warrants that there
are no brokers or finders entitled to receive any payments in connection with
the transactions provided for in the Plan.
15. Amendments. The parties may, by agreement in writing authorized
by their respective Boards of Trustees, amend this Plan at any time before or
after the shareholders of the Acquired Fund approve the Acquisition.
However, after shareholders of the Acquired Fund approve the Acquisition, the
parties may not amend this Plan in a manner that materially alters the
obligations of either party. This Section shall not preclude the parties
from changing the Closing Date or the Effective Time by mutual agreement.
16. Waivers. At any time prior to the Closing Date, either party may
by written instrument signed by it (i) waive the effect of any inaccuracies
in the representations and warranties made to it contained herein and (ii)
waive compliance with any of the agreements, covenants or conditions made for
its benefit contained herein. Any waiver shall apply only to the particular
inaccuracy or requirement for compliance waived, and not any other or future
inaccuracy or lack of compliance.
17. Indemnification of Trustees. On behalf of ABT Value, AB Trust
will assume all obligations of the Acquired Fund to exculpate and indemnify
its current and former Trustees and officers, acting in their capacities as
such.
18. Cooperation and Further Assurances. Each party will cooperate
with the other in fulfilling its obligations under this Plan and will provide
such information and documentation as is reasonably requested by the other in
carrying out the Plan's terms. Each party will provide such further
assurances concerning the performance of its obligations hereunder and
execute all documents for or in connection with the consummation of the
Acquisition as, with respect to such assurances or documents, the other shall
deem necessary or appropriate.
19. Updating of N-14 Registration Statement. If at any time prior to
the Effective Time, a party becomes aware of any untrue statement of a
material fact or omission to state a material fact required to be stated
therein or necessary to make the statements made not misleading in the N-14
Registration Statement, the party discovering the item shall notify the other
party and the parties shall cooperate in promptly preparing, filing and
clearing with the SEC and, if appropriate, distributing to shareholders
appropriate disclosure with respect to the item.
20. Limitation on Liabilities. The obligations of the Acquired Fund
and ABT Value shall not bind any of the Trustees, shareholders, nominees,
officers, employees or agents of the Acquired Fund or AB Trust personally or
any series of AB Trust other than ABT Value, but shall bind only the Acquired
Fund or ABT Value, as appropriate. The execution and delivery of this Plan
by an officer of either party shall not be deemed to have been made by the
officer individually or to impose any liability on the officer personally,
but shall bind only the Acquired Fund or AB Trust, on behalf of ABT Value, as
appropriate.
21. Termination of the Acquired Fund. If the parties complete the
Acquisition, the Acquired Fund shall terminate its registration under the
1940 Act and liquidate and dissolve.
22. Notices. Any notice, report, statement, certificate or demand
required or permitted by any provision of the Plan shall be in writing and
shall be given in person or by telecopy, certified mail or overnight express
courier to:
For the Acquired Fund:
Alliance International Fund
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
For ABT Value:
AllianceBernstein International Value Fund of Alliance AB Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
23. Expenses. Each of AIF and Alliance Capital Management L.P. will
bear 50% of all expenses incurred in connection with this Agreement and Plan
of Acquisition and Liquidation, and all transactions contemplated hereby,
whether or not the Acquisition is consummated, except for the expenses
incurred in connection with any realignment of AIF's portfolio pursuant to
Section 4(c) of this Agreement.
24. General. This Plan supersedes all prior agreements between the
parties with respect to the subject matter hereof and may be amended only in
writing signed by both parties. The headings contained in this Plan are for
reference only and shall not affect in any way the meaning or interpretation
of this Plan. Whenever the context so requires, the use in the Plan of the
singular will be deemed to include the plural and vice versa. Nothing in this
Plan, expressed or implied, confers upon any other person any rights or
remedies under or by reason of this Plan. Neither party may assign or
transfer any right or obligation under this Plan without the written consent
of the other party
In Witness Whereof, the parties hereto have executed this Plan as of
the day and year first above written.
Alliance International Fund
Attest:
___________________________ By:_________________________
Name: Xxxx Xxx Xxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Notary Public Title: Secretary
AllianceBernstein International Value
Fund of AllianceBernstein Trust
Attest:
___________________________ By:_________________________
Name: Xxxx Xxx Xxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Notary Public Title: Secretary
Accepted and agreed with respect to Section 23 only:
Alliance Capital Management L.P.
By: Alliance Capital Management Corporation, its General Partner
By: _____________________________
Name: Xxxx X. Xxxxxx
Title: President
