AGREEMENT AND PLAN OF ACQUISITION AND LIQUIDATION BETWEEN ACM MANAGED DOLLAR INCOME FUND, INC. AND ALLIANCEBERNSTEIN GLOBAL HIGH INCOME FUND, INC.
ALLIANCEBERNSTEIN
ALLIANCEBERNSTEIN GLOBAL HIGH INCOME FUND, INC.
EXHIBIT
77Q1
811-07732
AGREEMENT
AND PLAN OF ACQUISITION AND LIQUIDATION
BETWEEN
ACM MANAGED DOLLAR INCOME FUND, INC. AND ALLIANCEBERNSTEIN GLOBAL HIGH INCOME
FUND, INC.
This
Agreement and Plan of Acquisition and Liquidation (the “Plan”) is made as of
this 8th day of May, 2009, by and between AllianceBernstein Global High Income
Fund, Inc. (the “Acquiring Fund”), a Maryland corporation, ACM Managed Dollar
Income Fund, Inc. (the “Acquired Fund”), a Maryland corporation, and
AllianceBersntein L.P. (the “Adviser”).
WHEREAS,
the Acquiring Fund and the Acquired Fund are closed-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”) and the
Securities Exchange Act of 1934, as amended (the “1934 Act”) and
shares of common stock of each Fund are currently purchased and sold on the New
York Stock Exchange (the “NYSE”);
WHEREAS,
the parties desire that the Acquiring Fund acquire the assets and assume the
liabilities of the Acquired Fund in exchange for shares of equal net asset value
of the Acquiring Fund (“Acquisition Shares”) and the distribution of such shares
of the Acquiring Fund to the stockholders of the Acquired Fund (the
“Acquisition”) and that the Acquired Fund thereafter dissolve; and
WHEREAS,
the parties intend that the Acquisition qualify as a “reorganization” within the
meaning of Section 368(a) of the United States Internal Revenue Code of 1986, as
amended (the “Code”), and any successor provisions, and that with respect to the
Acquisition, the Acquiring Fund and the Acquired Fund will each be a “party to a
reorganization” within the meaning of Section 368(b) of the Code;
Now,
therefore, the Acquiring Fund and the Acquired Fund agree as
follows:
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1.
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Definitions.
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In
addition to the terms elsewhere defined herein, each of the following terms
shall have the meaning indicated for that term as follows:
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1933
Act Securities Act of 1933, as
amended.
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Assets
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All
assets of any kind and all interests, rights, privileges and powers of or
attributable to the Acquired Fund or its shares, as appropriate, 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 its shares and any deferred or prepaid
expense, other than unamortized organizational expenses, shown as an asset
on the Acquired Fund’s books.
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Closing
Date
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Such
date as the parties may agree.
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Effective
Time
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5:00
p.m., Eastern time, on the Closing Date, or such other time as the parties
may agree to in writing.
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Financial
Statement
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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.
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Fund
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The
Acquiring Fund and/or the Acquired Fund, as the case may
be.
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Liabilities
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All
liabilities, expenses and obligations of any kind whatsoever of the
Acquired Fund, whether known or unknown, accrued or unaccrued, absolute or
contingent or conditional or unmatured.
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N-14
Registration Statement
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The
Registration Statement of the Acquiring Fund on Form N-14 under the 1940
Act that will register the Acquisition Shares to be issued in the
Acquisition.
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Valuation
Time
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The
close of regular session trading on the NYSE on the Closing Date, when for
purposes of the Plan, the Acquiring Fund determines its net asset value
per Acquisition Share and the Acquired Fund determines the net
value of the Assets.
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NAV
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A
Fund’s net asset value is calculated by valuing and totaling assets and
then subtracting liabilities and then dividing the balance by the number
of shares that are outstanding.
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2.
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Regulatory
Filings.
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The
Acquiring Fund shall promptly prepare and file the N-14 Registration Statement
with the SEC, and the Acquiring Fund and the Acquired Fund also shall make any
other required or appropriate filings with respect to the actions contemplated
hereby.
3. Stockholder
Action.
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As
soon as practicable after the effective date of the N-14 Registration
Statement, the Acquired Fund shall hold a stockholders meeting to consider
and approve the Acquisition and this Plan and such other matters as the
Board of Directors may determine. Such approval by the
stockholders 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 stockholders 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.
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4. Transfer of the Acquired
Fund’s Assets.
The Acquiring Fund and the Acquired
Fund shall take the following steps with respect to the Acquisition, as
applicable:
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(a)
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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.
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(b)
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Prior
to the Effective Time, except to the extent prohibited by Rule 19b-1 under
the 1940 Act, the Acquired Fund will declare to Acquired Fund stockholders
of record a dividend or dividends which, together with all previous such
dividends, shall have the effect of distributing (a) all the excess of (i)
Acquired Fund's investment income excludable from gross income under
Section 103(a) of the Code over (ii) Acquired Fund's deductions disallowed
under Section 265 and 171(a)(2) of the Code, (b) all of Acquired Fund's
investment company taxable income (as defined in Code Section 852),
(computed in each case without regard to any deduction for dividends
paid), and (c) all of Acquired Fund's net realized capital gain (as
defined in Code Section 1222), if any (after reduction for any capital
loss carryover), in each case for both the taxable year ended on September
30, 2008, and for the short taxable year beginning on October 1, 2008, and
ending on the Closing Date. Such dividends will be declared and
paid to ensure continued qualification of the Acquired Fund as a
“regulated investment company” for tax purposes and to eliminate
fund-level tax.
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(c)
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At
the Effective Time, pursuant to Articles of Transfer accepted for record
by the State Department of Assessments and Taxation of Maryland (the
“SDAT”), the Acquired Fund shall assign, transfer, deliver and convey the
Assets to the Acquiring Fund, subject to the Liabilities. The
Acquiring Fund shall then accept the Assets and assume the Liabilities
such that at and after the Effective Time (i) the Assets at or after the
Effective Time shall become and be assets of the Acquiring Fund, and (ii)
the Liabilities at the Effective Time shall attach to the Acquiring Fund,
and shall be enforceable against the Acquiring Fund to the same extent as
if initially incurred by the Acquiring
Fund.
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(d)
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Within
a reasonable time prior to the Closing Date, the Acquired Fund shall
provide, if requested, a list of the Assets to the Acquiring
Fund. 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 the Acquiring
Fund. Within a reasonable time after receipt of the list and
prior to the Closing Date, the Acquiring Fund will advise the Acquired
Fund in writing of any investments shown on the list that the Acquiring
Fund 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 the Acquiring Fund determines that, as a result of the
Acquisition, the Acquiring Fund would own an aggregate amount of an
investment that would exceed a percentage limitation applicable to the
Acquiring Fund, the Acquiring Fund 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.
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(e)
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The
Acquired Fund shall assign, transfer, deliver and convey the Assets to the
Acquiring Fund at the Effective Time on the following
basis:
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(1)
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The
value of the Assets less the Liabilities of the Acquired Fund, determined
as of the Valuation Time, shall be divided by the then NAV of
one Acquisition Share, and, in exchange for the transfer of the
Assets, the Acquiring Fund shall simultaneously issue and deliver to the
Acquired Fund the number of full Acquisition Shares so
determined that are allocable to all shares held by or for those
stockholders of the Acquired Fund on a stockholder by stockholder basis
plus fractional Acquisition Shares, rounded to the second
decimal place or such other decimal place as the parties may agree to in
writing, allocable to those stockholders of the Acquired Fund that at the
Effective Time participate in the Acquired Fund’s Dividend Reinvestment
Plan (“DRIP Stockholders”), regardless of whether the shares of the
Acquired Fund with respect to which such fractional Acquisition Shares are
to be issued and delivered are held by or for the DRIP Stockholders
directly or in the Acquired Fund’s Dividend Reinvestment
Plan. The Acquiring Fund shall at the same time deliver to the
Acquired Fund cash in lieu of any fractional Acquisition Shares allocable
to those stockholders of the Acquired Fund that are not DRIP
Stockholders;
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(2)
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The
NAV of the Acquisition Shares to be delivered to the Acquired Fund shall
be determined as of the Valuation Time in accordance with the Acquiring
Fund’s then applicable valuation procedures, and the net value of the
Assets to be conveyed to the Acquiring Fund shall be determined as of the
Valuation Time in accordance with the then applicable valuation procedures
of the Acquired Fund; and
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(3)
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The
portfolio securities of the Acquired Fund shall be made available by the
Acquired Fund to The Bank of New York, as custodian for the Acquiring Fund
(the “Custodian”), for examination no later than five business days
preceding the Valuation Time. On the Closing Date, such
portfolio securities and all the Acquired Fund's cash shall be delivered
by the Acquired Fund to the Custodian for the account of the Acquiring
Fund, such portfolio securities to be duly endorsed in proper form for
transfer in such manner and condition as to constitute good delivery
thereof in accordance with the custom of brokers or, in the case of
portfolio securities held in the U.S. Treasury Department's book-entry
system or by The Depository Trust Company, Participants Trust Company or
other third party depositories, by transfer to the account of the
Custodian in accordance with Rule 17f-4, Rule 17f-5 or Rule 17f-7, as the
case may be, under the 1940 Act and accompanied by all necessary federal
and state stock transfer stamps or a check for the appropriate purchase
price thereof. The cash delivered shall be in the form of
currency or certified or official bank checks, payable to the order of the
Custodian, or shall be wired to an account pursuant to instructions
provided by the Acquiring Fund.
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(f)
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Promptly
after the Closing Date, the Acquired Fund will deliver to the Acquiring
Fund a Statement of Assets and Liabilities of the Acquired Fund as of the
Closing Date.
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5.
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Liquidation and
Dissolution of the Acquired Fund, Registration of Acquisition Shares and
Access to Records.
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The Acquired Fund and the Acquiring
Fund 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 by transferring pro rata to its stockholders of record, the
Acquisition Shares and cash it receives pursuant to Section 4(e)(1) of this
Plan. The Acquiring Fund shall establish accounts on its share
records and note on such accounts the names of the former Acquired Fund
stockholders and the amounts of Acquisition Shares that the former Acquired Fund
stockholders are due based on their respective holdings of shares of the
Acquired Fund as of the close of business on the Closing
Date. Fractional Acquisition Shares shall be carried to the second
decimal place. The Acquiring Fund shall not issue certificates
representing Acquisition Shares in connection with such exchange. All
issued and outstanding shares in connection with such exchange will be
simultaneously cancelled on the books of the Acquired Fund. Ownership
of Acquired Fund’s shares will be shown on the books of the Acquiring Fund’s
transfer agent.
Following
distribution by the Acquired Fund to its stockholders of all the Acquisition
Shares 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, including filing of Articles
of Dissolution with SDAT.
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(b)
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At
and after the Closing Date, the Acquired Fund shall provide the Acquiring
Fund 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 stockholders and the number and percentage
ownership of the outstanding shares of the Acquired Fund owned by
stockholders 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
stockholders’ 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.
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6. Certain Representations and
Warranties of the Acquired Fund.
The Acquired Fund represents and
warrants to the Acquiring Fund as follows:
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(a)
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The
Acquired Fund is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Maryland. The
Acquired Fund is registered with the SEC as a closed-end management
investment company under the 1940 Act and is duly registered with the SEC
under the 1934 Act, and such registrations will be in full force and
effect as of the Effective Time.
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(b)
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The
Acquired Fund has the power and all necessary federal, state and local
qualifications and authorizations to own all of the Assets, to carry on
its business, to enter into this Plan and to consummate the transactions
contemplated herein.
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(c)
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The
Board of Directors of the Acquired Fund has 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. 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 stockholders referred to in Section 3
hereof, the consummation of the transactions contemplated by this Plan
will not, violate the Acquired Fund’s Charter (the “Acquired Fund
Charter”), its Bylaws (the “Acquired Fund Bylaws”) or any material
agreement to which the Acquired Fund is subject. Except for the
approval of its stockholders, the Acquired Fund does not need to take any
other action to authorize its officers to effectuate this Plan and the
transactions contemplated herein.
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(d)
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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 intends to
continue to qualify as a regulated investment company for its taxable year
ending upon its liquidation.
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(e)
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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 stockholders, at the time of the
stockholders 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.
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(f)
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The
Acquired Fund has duly authorized and validly issued all of its issued and
outstanding shares of common stock, 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.
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(g)
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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.
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(h)
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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.
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(i)
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The
Financial Statements of the Acquired Fund, a copy of which has been
previously delivered to the Acquiring Fund, fairly present the financial
position of the Acquired Fund as of the Acquired Fund’s most recent fiscal
year-end and the results of the Acquired Fund’s operations and changes in
the Acquired Fund’s net assets for the periods
indicated.
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(j)
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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.
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(k)
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To
the knowledge of the Acquired Fund, except as has been disclosed in
writing to the Acquiring Fund, no claims, actions, suits, investigations
or proceedings of any type are pending or threatened against the Acquired
Fund or any of its properties or assets or any person whom the Acquired
Fund may be obligated to indemnify in connection with such litigation,
proceeding or investigation. Subject to the foregoing, 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 nor 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.
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(l)
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Except
for agreements entered into or granted in the ordinary course of its
business, in each case under which no material default exists, and this
Plan, the Acquired Fund is not a party to or subject to any material
contract or other commitments, that if terminated, may result in material
liability to the Acquired Fund or under which (whether or not terminated)
any material payment for periods subsequent to the Closing Date will be
due from the Acquired Fund.
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(m)
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The
Acquired Fund has filed its federal income tax returns, copies of which
have been previously made available to the Acquiring Fund, for all taxable
years for which such returns are due and has paid all taxes payable
pursuant to such returns. All of the Acquired Fund's tax
liabilities will have been adequately provided for on its
books. No such return is currently under audit and no unpaid
assessment has been asserted with respect to such returns. To
the best of the Acquired Fund's knowledge, it will not have any tax
deficiency or liability asserted against it or question with respect
thereto raised, and it will not be under audit by the Internal Revenue
Service or by any state or local tax authority for taxes in excess of
those already paid. The Acquired Fund will timely file its
federal income tax return for each subsequent taxable year including its
current taxable year.
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(n)
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For
federal income tax purposes, the Acquired Fund qualifies as a “regulated
investment company,” and the provisions of Sections 851 through 855 of the
Code apply to the Acquired Fund for the remainder of its current taxable
year beginning October 1, 2008, and will continue to apply through the
Closing Date.
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(o)
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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.
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(p)
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The
Acquired Fund's investment operations from inception to the date hereof
have been in compliance in all material respects with the investment
policies and investment restrictions set forth in its prospectus or
prospectuses and statement or statements of additional information as in
effect from time to time, except as previously disclosed in writing to the
Acquiring Fund.
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(q)
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The
Acquisition Shares to be issued to the Acquired Fund pursuant to paragraph
4(e)(1) will not be acquired for the purpose of making any distribution
thereof other than to the Acquired Fund Stockholders as provided in
paragraph 4(e)(1).
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(r)
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The
Acquired Fund, or its agents, (i) holds a valid Form W-8Ben, Certificate
of Foreign Status of Beneficial Owner for United States Withholding (or
other appropriate series of Form W-8, as the case may be) or Form W-9,
Request for Taxpayer Identification Number and Certification, for each
Acquired Fund stockholder of record, which Form W-8 or Form W-9 can be
associated with reportable payments made by the Acquired Fund to such
stockholder, and/or (ii) has otherwise timely instituted the appropriate
backup withholding procedures with respect to such stockholder as provided
by Section 3406 of the Code and the regulations
thereunder.
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7. Certain Representations and
Warranties of Acquiring Fund.
The Acquiring Fund represents and
warrants to the Acquired Fund as follows:
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(a)
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The
Acquiring Fund is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Maryland. The
Acquiring Fund is registered with the SEC as a closed-end management
investment company under the 1940 Act and is duly registered with the SEC
under the 1934 Act, and such registrations will be in full force and
effect as of the Effective Time.
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(b)
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The
Acquiring 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.
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(c)
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The
Acquiring Fund 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.
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(d)
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The
Board of Directors of the Acquiring Fund has duly authorized execution and
delivery of this Plan and the transactions contemplated
herein. Duly authorized officers of the Acquiring Fund have
executed and delivered the Plan. 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 Charter of the Acquiring Fund (the “Acquiring Fund
Charter”), its Bylaws (the “Acquiring Fund Bylaws”) or any material
agreement to which the Acquiring Fund is subject. Except for
the approval of its Board, the Acquiring Fund does not need to take any
other action to authorize its officers to effectuate the Plan and the
transactions contemplated herein.
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(e)
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The
Acquiring 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 qualifies
and intends to continue to qualify as a regulated investment company for
its current taxable year.
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(f)
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The
N-14 Registration Statement, when filed with the SEC, when Part A of the
N-14 Registration Statement is distributed to stockholders, at the time of
the stockholder meeting of the Acquired Fund for approval of the
Acquisition and at the Effective Time, insofar as it relates to the
Acquiring Fund 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, in light of the circumstances under which
they were made, not misleading.
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(g)
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The
Acquiring Fund has duly authorized and validly issued all issued and
outstanding Acquisition Shares, 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. The Acquiring Fund has duly authorized the Acquisition
Shares referred to in Section 4(e) hereof to be issued and delivered to
the Acquired Fund as of the Effective Time. When issued and
delivered, such Acquisition Shares shall be validly issued, fully paid and
non-assessable, and no stockholder of the Acquiring Fund 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 Acquisition Shares, nor are there
any securities convertible into Acquisition
Shares.
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(h)
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To
the knowledge of the Acquiring Fund, except as has been disclosed in
writing to the Acquiring Fund, no claims, actions, suits, investigations
or proceedings of any type are pending or threatened against the Acquiring
Fund or any of its properties or assets or any person whom the Acquiring
Fund may be obligated to indemnify in connection with such litigation,
proceeding or investigation. Subject to the foregoing, there
are no facts that the Acquiring Fund currently has reason to believe are
likely to form the basis for the institution of any such claim, action,
suit, investigation or proceeding against the Acquiring
Fund. The Acquiring 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, its assets or its ability
to consummate the transactions contemplated by this
Plan.
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(i)
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Except
for agreements entered into or granted in the ordinary course of its
business, in each case under which no material default exists, the
Acquiring 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.
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(j)
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The
Acquiring Fund 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. All of the Acquiring Fund's tax
liabilities will have been adequately provided for on its
books. No such return is currently under audit and no unpaid
assessment has been asserted with respect to such returns. To
the best of the Acquiring Fund's knowledge, it will not have any tax
deficiency or liability asserted against it or question with respect
thereto raised, and it will not be under audit by the Internal Revenue
Service or by any state or local tax authority for taxes in excess of
those already paid. The Acquiring Fund will timely file its
federal income tax return for each subsequent taxable year including its
current taxable year.
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(k)
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For
federal income tax purposes, the Acquiring Fund qualifies as a “regulated
investment company,” and the provisions of Sections 851 through 855 of the
Code apply to the Acquiring Fund for the remainder of its current taxable
year beginning April 1, 2008, and will continue to apply through the
Closing Date.
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(l)
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The
Financial Statements of the Acquiring Fund, a copy of which has been
previously delivered to the Acquired Fund, fairly present the financial
position of the Acquiring Fund's most recent fiscal year-end and the
results of the Acquiring Fund's operations and changes in the Acquiring
Fund's net assets for the period
indicated.
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(m)
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Since
the date of the Financial Statements of the Acquiring Fund, 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.
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(n)
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The
Acquiring Fund's investment operations from inception to the date hereof
have been in compliance in all material respects with the investment
policies and investment restrictions set forth in its prospectus or
prospectuses and statement or statements of additional information as in
effect from time to time, except as previously disclosed in writing to the
Acquired Fund.
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(o)
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The
Acquiring Fund will use all reasonable efforts to obtain the approvals and
authorizations required by the 1933 Act, the 1940 Act and such other state
securities laws as it may deem appropriate in order to continue its
operations after the Closing Date.
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8. Conditions to the
Obligations of the Acquiring Fund and the Acquired Fund.
The obligations of the Acquiring Fund
and the Acquired Fund with respect to the Acquisition shall be subject to the
following conditions precedent:
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(a)
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The
stockholders of the Acquired Fund shall have approved the Acquisition in
the manner required by the Acquired Fund Charter, the Acquired Fund Bylaws
and applicable law. If stockholders of the Acquired Fund fail
to approve the Acquisition as required, that failure shall release the
Funds of their obligations under this
Plan.
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(b)
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The
Acquiring Fund 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 Secretary or an Assistant Secretary, in a form reasonably
satisfactory to the receiving party, stating that the representations and
warranties of the Acquiring Fund 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.
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(c)
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The
Acquiring Fund 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.
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(d)
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There
has been no material adverse change in the financial condition, results of
operations, business, properties or assets of the Acquiring Fund or the
Acquired Fund since the date of the most recent Financial
Statements. Negative investment performance shall not be
considered a material adverse
change.
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(e)
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The
Acquiring Fund and the Acquired Fund shall have received an opinion of
Xxxxxx & Xxxxxx LLP reasonably satisfactory to each of them,
substantially to the effect that for federal income tax
purposes:
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(1)
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the
Acquisition will constitute a “reorganization” within the meaning of
Section 368(a) of the Code and that the Acquiring Fund and the Acquired
Fund will each be “a party to a reorganization” within the meaning of
Section 368(b) of the Code;
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(2)
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a
stockholder of the Acquired Fund will recognize no gain or loss on the
exchange of the stockholder’s shares of the Acquired Fund solely
for Acquisition Shares, except with respect to cash received in
lieu of a fractional share of the Acquiring Fund in connection with the
Acquisition;
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(3)
|
neither
the Acquired Fund nor the Acquiring Fund will recognize any gain or loss
upon the transfer of all of the Assets to the Acquiring Fund in exchange
for Acquisition Shares (plus cash in lieu of fractional shares) and the
assumption by Acquiring Fund of the Liabilities pursuant to this Plan or
upon the distribution of Acquisition Shares and cash to stockholders of
the Acquired Fund in exchange for their respective shares of the Acquired
Fund;
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(4)
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the
holding period and tax basis of the Assets acquired by the Acquiring Fund
will be the same as the holding period and tax basis that the Acquired
Fund had in such Assets immediately prior to the
Acquisition;
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(5)
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the
aggregate tax basis of the Acquisition Shares received in
connection with the Acquisition by each stockholder of the Acquired Fund
(including any fractional share to which the stockholder may be entitled)
will be the same as the aggregate tax basis of the shares of the Acquired
Fund surrendered in exchange therefor, decreased by any cash received and
increased by any gain recognized on the
exchange;
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(6)
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the
holding period of the Acquisition Shares received in connection with the
Acquisition by each stockholder of the Acquired Fund (including any
fractional share to which the stockholder 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 stockholder as of the Closing
Date;
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(7)
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The
Acquiring Fund will succeed to the capital loss carryovers of the Acquired
Fund, if any, under Section 381 of the Code, but the use by the Acquiring
Fund of any such capital loss carryovers (and of capital loss carryovers
of the Acquiring Fund) may be subject to limitation under Section 383 of
the Code; and
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(8)
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any
gain or loss realized by a stockholder of the Acquired Fund upon the sale
of a fractional share of the Acquiring Fund to which the stockholder is
entitled will be recognized to the stockholder and measured by the
difference between the amount of cash received and the basis of the
fractional share and, provided that the Acquired Fund shares surrendered
constitute capital assets in the hands of the stockholder, will be a
capital gain or loss.
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The
opinion will be based on certain factual certifications made by officers of the
Funds and will also be based on customary assumptions and subject to certain
qualifications. The opinion is not a guarantee that the tax
consequences of the Acquisition will be as described above.
Notwithstanding
this subparagraph (e), Xxxxxx & Xxxxxx LLP will express no view with respect
to the effect of the Acquisition on any transferred asset as to which any
unrealized gain or loss is required to be recognized at the end of a taxable
year (or on the termination or transfer thereof) under federal income tax
principles. Each Fund shall agree to make and provide additional
representations to Xxxxxx & Xxxxxx LLP with respect to the Funds that are
reasonably necessary to enable Xxxxxx & Xxxxxx LLP to deliver the tax
opinion. Notwithstanding anything in this Plan to the contrary,
neither Fund may waive in any material respect the conditions set forth under
this subparagraph (e).
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(f)
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The
N-14 Registration Statement shall have become effective under the 1933 Act
as to the Acquisition Shares, and the SEC shall not have instituted and to
the knowledge of the Acquiring Fund is not contemplating instituting, any
stop order suspending the effectiveness of the N-14 Registration
Statement.
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(g)
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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.
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(h)
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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.
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(i)
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Neither
party shall have terminated this Plan with respect to the Acquisition
pursuant to Section 13 of this
Plan.
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(j)
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The
NYSE shall have approved, upon official notice of issuance, the listing of
the Acquisition Shares to be issued and delivered to the Acquired Fund
pursuant hereto.
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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:
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(a)
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The
Acquired Fund shall have received an opinion of Xxxxxx & Xxxxxx LLP,
counsel to the Acquiring Fund, in form and substance reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date,
substantially to the effect that:
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(1)
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The
Acquiring Fund is a corporation duly incorporated, existing and in good
standing under the laws of the State of Maryland and is a closed-end,
management investment company registered under the 1940 Act and duly
registered under the 1934 Act;
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(2)
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This
Plan has been duly authorized, executed and delivered by the Acquiring
Fund and, assuming the N-14 Registration Statement referred to in Section
2 of this Plan does not contain any material misstatements or omissions,
and assuming due authorization, execution and delivery of this Plan by the
Acquired Fund, 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;
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(3)
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The
Acquisition Shares to be delivered as provided for by this Plan are duly
authorized and, when issued in accordance with this Plan and the
resolutions of the Board of Directors authorizing the issuance thereof,
will be validly issued, fully paid and
non-assessable;
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(4)
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The
execution and delivery of this Plan did not, and the consummation of the
Acquisition will not, violate the Acquiring Fund Charter or the Acquiring
Fund Bylaws or any agreement of the Acquiring Fund known to such counsel,
after reasonable inquiry; and
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(5)
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To
the knowledge of such counsel, no consent, approval, authorization or
order of any federal or state court or administrative or regulatory
agency, other than the acceptance of record of Articles of Transfer by the
SDAT, is required for the Acquiring Fund to enter into this Plan or carry
out its terms, except those that have been obtained under the 1933 Act,
the 1934 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 Acquiring Fund.
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In
rendering such opinion, Xxxxxx & Xxxxxx LLP may (i) rely on the opinion of
Xxxxxxx LLP as to matters of Maryland law to the extent set forth in such
opinion, (ii) make assumptions regarding the authenticity, genuineness and/or
conformity of documents and copies thereof without independent verification
thereof, (iii) limit such opinion to applicable federal and state law, (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 and (v) rely on certificates of officers or directors of
the Acquiring Fund as to factual matters.
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(b)
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The
Acquired Fund shall have received a letter from the Adviser with respect
to insurance matters in form and substance satisfactory to the Acquired
Fund.
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10. Conditions to the
Obligations of the Acquiring Fund.
The
obligations of the Acquiring Fund with respect to the Acquisition shall be
subject to the following conditions precedent:
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(a)
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The
Acquiring Fund shall have received an opinion of Xxxxxx & Xxxxxx LLP,
counsel to the Acquired Fund, in form and substance reasonably
satisfactory to the Acquiring Fund and dated as of the Closing Date,
substantially to the effect that:
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(1)
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The
Acquired Fund is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Maryland and is a closed-end
management investment company registered under the 1940 act and duly
registered under the 1934 Act;
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(2)
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This
Plan has been duly authorized, executed and delivered by the Acquired Fund
and, assuming the N-14 Registration Statement referred to in Section 2 of
this Plan does not contain any material misstatements or omissions, and
assuming due authorization, execution and delivery of this Plan by the
Acquiring Fund, 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;
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(3)
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The
execution and delivery of this Plan did not, and the consummation of the
Acquisition will not, violate the Acquired Fund Charter or the Acquired
Fund Bylaws or any agreement of the Acquired Fund known to such counsel,
after reasonable inquiry; and
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(4)
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To
the knowledge of such counsel, no consent, approval, authorization or
order of any federal or state court or administrative or regulatory
agency, other than the acceptance of record of Articles of Transfer by the
SDAT, 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 1934 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.
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In
rendering such opinion, Xxxxxx & Xxxxxx LLP may (i) rely on the opinion of
Xxxxxxx LLP as to matters of Maryland law, (ii) make assumptions regarding the
authenticity, genuineness and/or conformity of documents and copies thereof
without independent verification thereof, (iii) limit such opinion to applicable
federal and state law, (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 and (v) rely on certificates
of officers or directors of the Acquired Fund as to factual
matters.
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(b)
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The
Acquiring Fund shall have received a letter from the Adviser agreeing to
indemnify the Acquiring Fund in respect of certain liabilities of the
Acquired Fund in form and substance satisfactory to the Acquiring
Fund.
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11. Closing.
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(a)
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The
Closing shall be held at the offices of the Funds, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time place as the
parties may agree.
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(b)
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In
the event that at the Valuation Time (a) the NYSE shall be closed to
trading or trading thereon shall be restricted, or (b) trading or the
reporting of trading on said Exchange or elsewhere shall be disrupted so
that accurate appraisal of the value of the net assets of the Acquired
Fund or the Acquiring Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading shall
have been fully resumed and reporting shall have been restored; provided
that if trading shall not be fully resumed and reporting restored within
three business days of the Valuation Time, this Plan may be terminated by
either the Acquired Fund or the Acquiring Fund upon the giving of written
notice to the other party.
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(c)
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The
Acquiring Fund will provide to the Acquired Fund evidence satisfactory to
the Acquired Fund that the Acquisition Shares issuable pursuant to the
Acquisition have been credited to the Acquired Fund's account on the books
of the Acquiring Fund. After the Closing Date, the Acquiring
Fund will provide to the Acquired Fund evidence satisfactory to the
Acquired Fund that such Shares have been credited pro rata to open
accounts in the names of the Acquired Fund
Stockholders.
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(d)
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At
the Closing each party shall deliver to the other such bills of sale,
instruments of assumption of liabilities, checks, assignments, stock
certificates, receipts or other documents as such other party or its
counsel may reasonably request in connection with the transfer of assets,
assumption of liabilities and liquidation contemplated by the
Plan.
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12. 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.
13. Termination of
Plan.
A
majority of either Fund’s Board of Directors 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 Directors determines that the
consummation of the Acquisition is not in the best interests of the Fund or its
stockholders and gives notice of such termination to the other
party.
14. 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.
15. 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.
16. Amendments.
The
parties may, by agreement in writing authorized by their respective Board of
Directors, amend this Plan at any time before or after the stockholders of the
Acquired Fund approve the Acquisition. However, after stockholders of
the Acquired Fund approve the Acquisition, the parties may not amend this Plan
in a manner that materially alters the obligations of the other
party. This Section shall not preclude the parties from changing the
Closing Date or the Effective Time by mutual agreement.
17. 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.
18. Indemnification of
Directors.
The
Acquiring Fund agrees that all rights to indemnification and all limitations of
liability existing in favor of the Acquired Fund's current and former Directors
and officers, acting in their capacities as such, under the Acquired Fund
Charter and the Acquired Fund Bylaws as in effect as of the date of this Plan
shall survive the Acquisition as obligations of the Acquiring Fund and shall
continue in full force and effect, without any amendment thereto, and shall
constitute rights which may be asserted against the Acquiring Fund, its
successors or assigns.
19. Other
Matters.
Pursuant
to Rule 145 under the 1933 Act, and in connection with the issuance of any
shares to any person who at the time of the Acquisition is, to the Acquiring
Fund’s knowledge, an affiliate of a party to the Acquisition pursuant to Rule
145(c), the Acquiring Fund will cause to be affixed upon the certificate(s)
issued to such person (if any) a legend as follows:
THESE
SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO ACQUIRING FUND (OR ITS
STATUTORY SUCCESSOR) UNLESS (I) A REGISTRATION STATEMENT WITH RESPECT TO SUCH
SHARES IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 OR (II) IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE FUND, SUCH REGISTRATION IS NOT
REQUIRED.
20. 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.
21. 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 stockholders appropriate
disclosure with respect to the item.
22. Limitation on
Liabilities.
The
obligations of the Acquired Fund and the Acquiring Fund shall not bind any of
the directors, stockholders, nominees, officers, agents, employees or agents of
the Acquired Fund or the Acquiring Fund personally, but shall bind only the
Acquired Fund or Acquiring Fund, 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 the Acquiring Fund, as
appropriate.
23. Termination of the Acquired
Fund.
If the
parties complete the Acquisition, the Acquired Fund shall terminate its
registration under the 1940 Act, the 1933 Act, and the 1934 Act and will
liquidate and dissolve.
24. 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:
ACM Managed Dollar Income Fund,
Inc.
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Attention: Secretary
For the Acquiring Fund:
AllianceBernstein Global High Income
Fund, Inc.
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Attention: Secretary
25. Expenses.
The Acquisition expenses shall be
shared by the Acquired Fund and the Adviser. The Adviser will pay the
first $100,000 of the Acquisition expenses and the Acquired Fund will pay all
amounts in excess of that amount.
26. 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.
AllianceBernstein
Global High Income Fund, Inc.
Attest:
By:
Name: Name:
Title: Title:
ACM
Managed Dollar Income Fund, Inc.
Attest:
By:
Name: Name:
Title: Title:
Accepted
and agreed with respect to Section 25 only:
AllianceBernstein
L.P.
By: AllianceBernstein
Corporation, its General Partner
By: ___________________________
Name:
______________________
Title: _______________________
SK 00250 0158 1002438
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