AllianceBernstein Global Thematic Growth Fund, Inc.
811-03131
77.Q1 Exhibits
AGREEMENT AND PLAN OF ACQUISITION AND LIQUIDATION BETWEEN
ALLIANCEBERNSTEIN GLOBAL HEALTH CARE FUND, INC. AND ALLIANCEBERNSTEIN
GLOBAL THEMATIC GROWTH FUND, INC.
AGREEMENT AND PLAN OF ACQUISITION AND LIQUIDATION
RELATING TO THE ACQUISITION OF THE ASSETS AND LIABILITIES OF
ALLIANCEBERNSTEIN GLOBAL HEALTH CARE FUND, INC.
As of
August 8, 2008
This Agreement and Plan of Acquisition and Liquidation
(the Acquisition Plan) is made as of this 8th day of August 2008,
by and between AllianceBernstein Global Thematic Growth Fund, Inc.
(Acquiring Fund), a Maryland corporation, and AllianceBernstein
Global Health Care Fund, Inc. (the Acquired Fund), a Maryland corporation.
WHEREAS, Acquiring Fund 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 the Acquired Fund transfer
all of the assets attributable to its Class A shares held by
stockholders (Stockholders) in exchange for Class A shares of
equal net asset value of Acquiring Fund (Class A Acquisition Shares),
transfer all of the assets attributable to its Class B shares held by
Stockholders in exchange for Class B shares of equal net asset value
of Acquiring Fund (Class B Acquisition Shares), transfer all of the
assets attributable to its Class C shares held by Stockholders in
exchange for Class C shares of equal net asset value of Acquiring Fund
(Class C Acquisition Shares), transfer all of the assets attributable
to its Advisor Class shares held by Stockholders in exchange for
Advisor Class shares of equal net asset value of Acquiring Fund
(Advisor Class Acquisition Shares), transfer all of the assets
attributable to its Class R shares held by Stockholders in exchange
for Class R shares of equal net asset value of Acquiring Fund
(Class R Acquisition Shares), transfer all of the assets attributable
to its Class K shares held by Stockholders in exchange for Class K
shares of equal net asset value of Acquiring Fund (Class K Acquisition
Shares), transfer all of the assets attributable to its Class I
shares held by Stockholders in exchange for Class I shares of equal
net asset value of Acquiring Fund (Class I Acquisition Shares and
together with the Class A Acquisition Shares, Class B Acquisition
Shares, Class C Acquisition Shares, Advisor Class Acquisition Shares,
Class R Acquisition Shares, and Class K Acquisition Shares, the
Acquisition Shares) and distribute the Class A Acquisition Shares,
Class B Acquisition Shares, Class C Acquisition Shares, Advisor Class
Acquisition Shares, Class R Acquisition Shares, Class K Acquisition
Shares, and Class I Acquisition Shares to Stockholders of Class A,
Class B, Class C, Advisor Class, Class R, Class K, and Class I,
respectively, of the Acquired Fund (the Acquisition); 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,
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, Acquiring Fund 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. Assets 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 Funds books. Closing Date Such date as the parties may
agree. 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 Statement 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 Acquiring Fund and/or the Acquired
Fund, as the case may be. Liabilities 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. N-14 Registration
Statement The Registration Statement of Acquiring Fund on Form N-14
under the 1940 Act that will register the Acquisition Shares to be
issued in the Acquisition. Valuation Time The close of regular
session trading on the New York Stock Exchange (NYSE) on the Closing Date,
when for purposes of the Acquisition Plan, Acquiring Fund determines
its net asset value per Acquisition Share and the Acquired Fund determines
the net value of the Assets. NAV A Funds 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.
2. Regulatory Filings
Acquiring Fund shall promptly prepare and file the N-14 Registration
Statement with the SEC, and Acquiring Fund and the Acquired Fund also
shall make any other required or appropriate filings with respect to
the actions contemplated hereby.
3. Transfer of the Acquired Funds Assets
Acquiring Fund 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, 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
(i) all the excess of (A) Acquired Funds investment income excludable
from gross income under Section 103(a) of the Code over (B) Acquired Funds
deductions disallowed under Sections 265 and 171(a)(2) of the Code,
(ii) all of Acquired Funds investment company taxable income (as defined
in Code Section 852), (computed in each case without regard to any
deduction for dividends paid), and (iii) all of Acquired Funds 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 ending on June 30, 2008, and for the short taxable year
beginning on July 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.
(c) 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 Acquiring Fund, subject to the Liabilities. 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 Acquiring Fund, and (ii) the Liabilities
at the Effective Time shall attach to Acquiring Fund, and shall be
enforceable against Acquiring Fund to the same extent as if initially
incurred by Acquiring Fund.
(d) Within a reasonable time prior to the Closing Date, the Acquired
Fund shall provide, if requested, a list of the Assets to 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 Acquiring Fund. Within a reasonable time after receipt of the
list and prior to the Closing Date, Acquiring Fund will advise the Acquired
Fund in writing of any investments shown on the list that 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 Funds investment
objectives, policies and restrictions. In addition, if Acquiring Fund
determines that, as a result of the Acquisition, Acquiring Fund would
own an aggregate amount of an investment that would exceed a percentage
limitation applicable to Acquiring Fund, 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 Funds investment objectives, policies and
restrictions.
(e) The Acquired Fund shall assign, transfer, deliver and convey
the Assets to Acquiring Fund at the Effective Time on the following basis:
(i) The value of the Assets less the Liabilities of the Acquired
Fund attributable to shares of Class A held by Stockholders, shares
of Class B held by Stockholders, shares of Class C held by Stockholders,
shares of Advisor Class held by Stockholders, shares of Class R held by
Stockholders, shares of Class K held by Stockholders, and shares of
Class I held by Stockholders, determined as of the Valuation Time, shall
be divided by the then NAV of one Class A, Class B, Class C, Advisor Class,
Class R, Class K or Class I Acquisition Share, as applicable, and, in
exchange for the transfer of the Assets, Acquiring Fund shall
simultaneously issue and deliver to the Acquired Fund the number of
Class A, Class B, Class C, Advisor Class, Class R, Class K, and Class I
Acquisition Shares so determined, rounded to the second decimal place or
such other decimal place as the parties may agree to in writing;
(ii) The NAV of Class A, Class B, Class C, Advisor Class, Class R,
Class K, and Class I Acquisition Shares to be delivered to the Acquired
Fund shall be determined as of the Valuation Time in accordance with
Acquiring Funds then applicable valuation procedures, and the net value
of the Assets to be conveyed to Acquiring Fund shall be determined as
of the Valuation Time in accordance with the then applicable valuation
procedures of the Acquired Fund; and
(iii) The portfolio securities of the Acquired Fund shall be made
available by the Acquired Fund to State Street Bank and Trust Company,
as custodian for 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 Funds cash
shall be delivered by the Acquired Fund to the Custodian for the account
of 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 Departments
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 Acquiring Fund.
(f) Promptly after the Closing Date, the Acquired Fund will deliver
to Acquiring Fund a Statement of Assets and Liabilities of the Acquired
Fund as of the Closing Date.
4. Termination of the Acquired Fund, Registration of Acquisition
Shares and Access to Records
The Acquired Fund and 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 terminate by transferring pro rata to its
Stockholders of Class A of record Class A Acquisition Shares received
by the Acquired Fund pursuant to Section 3(e)(i) of this Acquisition
Plan; to its Stockholders of Class B of record Class B Acquisition
Shares received by the Acquired Fund pursuant to Section 3(e)(i) of this
Acquisition Plan; to its Stockholders of Class C of record Class C
Acquisition Shares received by the Acquired Fund pursuant to Section
3(e)(i) of this Acquisition Plan; to its Stockholders of Advisor Class
of record Advisor Class Acquisition Shares received by the Acquired Fund
pursuant to Section 3(e)(i) of this Acquisition Plan; to its Stockholders
of Class R of record Class R Acquisition Shares received by the Acquired
Fund pursuant to Section 3(e)(i) of this Acquisition Plan; to its
Stockholders of Class K of record Class K Acquisition Shares received by
the Acquired Fund pursuant to Section 3(e)(i) of this Acquisition Plan;
and to its Stockholders of Class I of record Class I Acquisition Shares
received by the Acquired Fund pursuant to Section 3(e)(i) of this
Acquisition Plan. Acquiring Fund shall establish accounts on its share
records and note on such accounts the names of the former Acquired Fund
Stockholders and the types and amounts of Acquiring Fund shares that
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 Acquiring Fund shares shall be carried
to the second decimal place. Acquiring Fund shall not issue certificates
representing Acquiring Fund 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
Acquiring Funds shares will be shown on the books of Acquiring Funds
transfer agent.
Following distribution by the Acquired Fund to its Stockholders
of all 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 terminate as soon as is reasonably possible after the
Effective Time.
(b) At and after the Closing Date, the Acquired Fund shall provide
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 Funds 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.
5. Certain Representations and Warranties of the Acquired Fund
The Acquired Fund represents and warrants to Acquiring Fund as follows:
(a) 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 an open-end management investment
company under the 1940 Act and such registrations 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 of the
Assets, to carry on its business, to enter into this Acquisition Plan
and to consummate the transactions contemplated herein.
(c) The Board of Directors of the Acquired Fund has duly authorized
the execution and delivery of this Acquisition Plan and the transactions
contemplated herein. Duly authorized officers of the Acquired Fund have
executed and delivered this Acquisition Plan. This Acquisition 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 Acquisition
Plan does not, and the consummation of the transactions contemplated by
this Acquisition Plan will not, violate the Acquired Funds Charter, its
Bylaws or any material agreement to which the Acquired Fund is subject.
Except for the approval of its Board, the Acquired Fund does not need
to take any other action to authorize its officers to effectuate this
Acquisition 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 intends to continue to qualify as a regulated investment company 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 Stockholders and at the
Effective Time, insofar as it relates to the Acquired Fund, shall (i)
comply in all material respects with the applicable provisions of the
1933 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 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.
(g) 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 3(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 Acquiring Fund, fairly present the
financial position of the Acquired Fund as of the Acquired Funds most
recent fiscal year-end and the results of the Acquired Funds operations
and changes in the Acquired Funds 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) To the knowledge of the Acquired Fund, except as has been disclosed
in writing to 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 Acquisition 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,
and this Acquisition 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.
(m) The Acquired Fund has filed its federal income tax returns,
copies of which have been previously made available to 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 Funds 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 Funds 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.
(n) 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 July 1, 2008, and will continue to apply
through the Closing Date.
(o) 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.
(p) The Acquired Funds 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 Acquiring Fund.
(q) The Acquisition Shares to be issued to the Acquired Fund pursuant
to Section 3(e)(i) will not be acquired for the purpose of making any
distribution thereof other than to the Acquired Fund Stockholders as
provided in Section 3(e)(i).
(r) 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.
6. Certain Representations and Warranties of Acquiring Fund
Acquiring Fund represents and warrants to the Acquired Fund as follows:
(a) Acquiring Fund is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Maryland. Acquiring
Fund is registered with the SEC as an open-end management investment
company under the 1940 Act and such registrations will be in full
force and effect as of the Effective Time.
(b) 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.
(c) 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 Acquisition Plan and to consummate the
transactions contemplated herein.
(d) The Board of Directors of Acquiring Fund has duly authorized execution
and delivery of this Acquisition Plan and the transactions contemplated
herein. Duly authorized officers of Acquiring Fund have executed and
delivered the Acquisition Plan. The Acquisition 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 Acquisition Plan does not, and the consummation of
the transactions contemplated by this Acquisition Plan will not, violate
the Charter of Acquiring Fund, its Bylaws or any material agreement to
which Acquiring Fund is subject. Except for the approval of its Board,
Acquiring Fund does not need to take any other action to authorize its
officers to effectuate the Acquisition Plan and the transactions
contemplated herein.
(e) 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.
(f) The N-14 Registration Statement, when filed with the SEC, when
Part A of the N-14 Registration Statement is distributed to Stockholders
and at the Effective Time, insofar as it relates to Acquiring Fund, shall
(i) comply in all material respects with the applicable provisions of the
1933 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.
(g) Acquiring Fund has duly authorized and validly issued all issued
and outstanding shares of common stock of Acquiring Fund, 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. Acquiring Fund has duly authorized the
Class A, Class B, Class C, Advisor Class, Class R, Class K and Class I
shares of Acquiring Fund referred to in Section 3(e) hereof to be issued
and delivered to the Acquired Fund as of the Effective Time. When issued
and delivered, such Class A, Class B, Class C, Advisor Class, Class R,
Class K, and Class I shares of Acquiring Fund shall be validly issued,
fully paid and non-assessable, and no Stockholder of 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.
(h) To the knowledge of Acquiring Fund, except as has been disclosed
in writing to the Acquired Fund, no claims, actions, suits, investigations
or proceedings of any type are pending or threatened against Acquiring Fund
or any of its properties or assets or any person whom Acquiring Fund may be
obligated to indemnify in connection with such litigation, proceeding or
investigation. Subject to the foregoing, there are no facts that 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 Acquiring Fund. 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 Acquisition Plan.
(i) Except for agreements entered into or granted in the ordinary course
of its business, in each case under which no material default exists,
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.
(j) 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 Acquiring Funds 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 Acquiring Funds 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. Acquiring Fund will timely file
its federal income tax return for each subsequent taxable year including
its current taxable year.
(k) For federal income tax purposes, Acquiring Fund qualifies as a
regulated investment company, and the provisions of Sections 851 through
855 of the Code apply to Acquiring Fund for the remainder of its current
taxable year beginning August 1, 2007, and will continue to apply through
the Closing Date.
(l) The Financial Statements of Acquiring Fund, a copy of which has
been previously delivered to the Acquired Fund, fairly present the
financial position of Acquiring Fund at its most recent fiscal year-end
and the results of Acquiring Funds operations and changes in Acquiring
Funds net assets for the period indicated.
(m) Since the date of the Financial Statements of 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.
(n) Acquiring Funds 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.
(o) 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.
7. Conditions to the Obligations of Acquiring Fund and the Acquired Fund
The obligations of Acquiring Fund and the Acquired Fund with respect
to the Acquisition shall be subject to the following conditions precedent:
(a) 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 Acquiring Fund or the Acquired Fund, as applicable, in this
Acquisition Plan that apply to the Acquisition are true and correct in all
material respects at and as of the Valuation Time.
(b) 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 Acquisition Plan to be performed or complied
with by it prior to or at the Valuation Time and the Effective Time.
(c) There has been no material adverse change in the financial condition,
results of operations, business, properties or assets of 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.
(d) 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:
(i) the Acquisition will constitute a reorganization within the meaning
of Section 368(a) of the Code and that Acquiring Fund and the Acquired
Fund will each be a party to a reorganization within the meaning of Section
368(b) of the Code;
(ii) a Stockholder of the Acquired Fund will recognize no gain or loss on
the exchange of the Stockholders shares of the Acquired Fund solely for
Acquisition Shares;
(iii) neither the Acquired Fund nor Acquiring Fund will recognize any gain
or loss upon the transfer of all of the Assets to Acquiring Fund in
exchange for Acquisition Shares and the assumption by Acquiring Fund of the
Liabilities pursuant to this Acquisition Plan or upon the distribution of
Acquisition Shares to Stockholders of the Acquired Fund in exchange for
their respective shares of the Acquired Fund;
(iv) the holding period and tax basis of the Assets acquired by 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;
(v) the aggregate tax basis of 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, and increased by any gain recognized
on the exchange;
(vi) the holding period of 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; and
(vii) 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 Acquiring Fund of any such capital loss carryovers (and of capital
loss carryovers of Acquiring Fund) may be subject to limitation under
Section 383 of the Code.
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 factual 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
Acquisition Plan to the contrary, neither Fund may waive in any material
respect the conditions set forth under this subparagraph (e).
(e) 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 Acquiring Fund, is not contemplating
instituting any stop order suspending the effectiveness of the N-14
Registration Statement.
(f) 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.
(g) 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.
(h) Neither party shall have terminated this Acquisition Plan with
respect to the Acquisition pursuant to Section 12 of this Acquisition Plan.
8. 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 Xxxxxx & Xxxxxx
LLP, counsel to Acquiring Fund, in form and substance reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date,
substantially to the effect that:
(i) Acquiring Fund is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Maryland and is an
open-end, management investment company registered under the 1940 Act;
(ii) This Acquisition Plan has been duly authorized, executed and
delivered by Acquiring Fund and, assuming the N-14 Registration Statement
referred to in Section 2 of this Acquisition Plan does not contain any
material misstatements or omissions, and assuming due authorization,
execution and delivery of this Acquisition 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 this Acquisition 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 this Acquisition Plan is not material;
(iii) The Class A, Class B, Class C, Advisor Class, Class R, Class K
and Class I Acquisition Shares to be delivered as provided for by this
Acquisition Plan are duly authorized and upon delivery will be validly
issued, fully paid and non-assessable by Acquiring Fund;
(iv) The execution and delivery of this Acquisition Plan did not,
and the consummation of the Acquisition will not, violate the Charter
of Acquiring Fund, its Bylaws or any agreement of Acquiring Fund known
to such counsel, after reasonable inquiry, and no approval of the
Acquisition Plan by the Stockholders of Acquiring Fund is required under
its Charter, Bylaws or applicable law; and
(v) 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 Acquiring Fund to enter into this Acquisition
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 Acquiring Fund.
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 Acquisition
Plan and (v) rely on certificates of officers or directors of Acquiring
Fund as to factual matters.
(b) Acquired Fund shall have received a letter from AllianceBernstein
L.P. (the Adviser) with respect to insurance matters in form and
substance satisfactory to the Acquired Fund.
9. Conditions to the Obligations of Acquiring Fund
The obligations of Acquiring Fund with respect to the Acquisition
shall be subject to the following conditions precedent:
(a) Acquiring Fund shall have received an opinion of Xxxxxx & Xxxxxx
LLP, counsel to the Acquired Fund, in form and substance reasonably
satisfactory to Acquiring Fund and dated as of the Closing Date,
substantially to the effect that:
(i) The Acquired Fund is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Maryland
and is an open-end management investment company registered under the
1940 Act;
(ii) This Acquisition 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 Acquisition Plan does not
contain any material misstatements or omissions, and assuming due
authorization, execution and delivery of this Acquisition Plan by 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 this Acquisition 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 this Acquisition Plan is not material;
(iii) The execution and delivery of this Acquisition Plan did not,
and the consummation of the Acquisition will not, violate the Charter
of the Acquired Fund, its Bylaws or any agreement of the Acquired
Fund known to such counsel, after reasonable inquiry, and no approval
of the Acquisition Plan by the Stockholders of Acquired Fund is required
under its Charter, Bylaws or applicable law; and
(iv) 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
this Acquisition 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) 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 Acquisition Plan and
(v) rely on certificates of officers or directors of the Acquired
Fund as to factual matters.
(b) Acquiring Fund shall have received a letter from the Adviser
agreeing to indemnify Acquiring Fund in respect of certain liabilities
of the Acquired Fund in form and substance satisfactory to Acquiring Fund.
10. Closing
(a) 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 or place as the parties may agree.
(b) In the event that at the Valuation Time (i) the NYSE shall be
closed to trading or trading thereon shall be restricted, or
(ii) 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 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 Acquisition
Plan may be terminated by either the Acquired Fund or Acquiring Fund upon
the giving of written notice to the other party.
(c) Acquiring Fund will provide to the Acquired Fund evidence
satisfactory to the Acquired Fund that Acquisition Shares issuable
pursuant to the Acquisition have been credited to the Acquired Funds
account on the books of Acquiring Fund. After the Closing Date,
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.
(d) 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 Acquisition Plan.
11. Survival of Representations and Warranties
No representations, warranties or covenants in or pursuant to
this Acquisition Plan (including certificates of officers) hereto
shall survive the completion of the transactions contemplated herein.
12. Termination of Acquisition Plan
A majority of either Funds Board of Directors may terminate this
Acquisition Plan with respect to that Fund at any time before the
applicable Effective Time if: (a) the Funds conditions precedent set
forth in Sections 7, 8 or 9 as appropriate, are not satisfied; or
(b) 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.
13. Governing Law
This Acquisition 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 this Acquisition Plan.
15. Amendments
The parties may, by agreement in writing authorized by their
respective Board of Directors, amend this Acquisition Plan at any
time before the applicable Effective Time.
16. Waivers
At any time prior to the Closing Date, either party may by
written instrument signed by it (a) waive the effect of any inaccuracies
in the representations and warranties made to it contained herein and
(b) 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 Directors
Acquiring Fund agrees that all rights to indemnification and
all limitations of liability existing in favor of the Acquired Funds
current and former Directors and officers, acting in their capacities
as such, under the Acquired Funds Charter and Bylaws as in effect as of
the date of this Acquisition Plan shall survive the Acquisition as
obligations of Acquiring Fund and shall continue in full force and effect,
without any amendment thereto, and shall constitute rights which may be
asserted against Acquiring Fund, its successors or assigns.
18. Cooperation and Further Assurances
Each party will cooperate with the other in fulfilling its
obligations under this Acquisition Plan and will provide such
information and documentation as is reasonably requested by the
other in carrying out this Acquisition Plans 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 Stockholders appropriate
disclosure with respect to the item.
20. Limitation on Liabilities
The obligations of the Acquired Fund and Acquiring Fund shall
not bind any of the directors, Stockholders, nominees, officers,
agents, employees or agents of the Acquired Fund or Acquiring Fund
personally, but shall bind only the Acquired Fund or Acquiring Fund,
as appropriate. The execution and delivery of this Acquisition 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 Acquiring Fund,
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 the 1933 Act and
will terminate.
22. Notices
Any notice, report, statement, certificate or demand required
or permitted by any provision of this Acquisition 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:
AllianceBernstein Global Thematic Growth Fund, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
For Acquiring Fund:
AllianceBernstein Global Health Care Fund, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
23. Expenses
The Acquisition expenses shall be paid by the Acquired Fund.
24. General
This Acquisition 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 Acquisition Plan are for reference only and shall not affect
in any way the meaning or interpretation of this Acquisition Plan.
Whenever the context so requires, the use in this Acquisition Plan
of the singular will be deemed to include the plural and vice versa.
Nothing in this Acquisition Plan, expressed or implied, confers upon
any other person any rights or remedies under or by reason of this
Acquisition Plan. Neither party may assign or transfer any right or
obligation under this Acquisition Plan without the written consent
of the other party.
In Witness Whereof, the parties hereto have executed this Acquisition
Plan as of the day and year first above written.
AllianceBernstein Global Health Care Fund, Inc.
Attest:
By:
Name: Xxxxxx X. Xxxxxxx
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
Title: President
AllianceBernstein Global Thematic Growth Fund, Inc.
Attest:
By:
Name: Xxxxxx X. Xxxxxxx
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
Title: President
SK 00250 0200 897599v2
Ablegal/agtgf/Item 77.Q1 for nsar 3-09
ablegal - 1516733 v1
