ALLIANCEBERNSTEIN HIGH YIELD FUND, INC.
EXHIBIT 77Q1
AGREEMENT AND PLAN OF ACQUISITION AND
LIQUIDATION
BETWEEN ALLIANCEBERNSTEIN HIGH YIELD
FUND, INC.
AND ALLIANCEBERNSTEIN EMERGING MARKET
DEBT FUND, INC.
As of
August 15, 2007
This Agreement and Plan of Acquisition and
Liquidation (the ?Acquisition Plan?) is made as of this 15th
day of August, 2007, by and between AllianceBernstein
Emerging Market Debt Fund, Inc. (?Acquiring Fund?), a
Maryland corporation, and AllianceBernstein High Yield
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:
1934 Act
Securities Exchange Act of 1934, as amended
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 Fund?s books.
Closing Date
Shall be on such other date following the date
that Stockholders of the Acquired Fund
approve the Acquisition Plan 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
s
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
Registrati
on
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 and will include the proxy
materials necessary for the Stockholders of the
Acquired Fund to approve 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 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.
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. Stockholder Action
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 Acquisition 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.
4. Transfer of the Acquired Fund?s 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
Fund?s investment income excludable from
gross income under Section 103(a) of the Code
over (B) Acquired Fund?s deductions
disallowed under Sections 265 and 171(a)(2) of
the Code, (ii) 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
(iii) 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 ending on
September 30, 2007, and for the short taxable
year beginning on October 1, 2007 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 Fund?s
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 Fund?s 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 Fund?s 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 The Bank of New
York Mellon, 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 Fund?s 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
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 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.
5. 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 4(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 4(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 4(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 4(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 4(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 4(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 4(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 Fund?s shares will be shown on the
books of Acquiring Fund?s 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 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.
6. 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, subject to the approval of
Stockholders referred to in Section 3 hereof, the
consummation of the transactions contemplated
by this Acquisition Plan will not, violate the
Acquired Fund?s Charter, its 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 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, 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 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 4(b) hereof.
(h) At the Effective Time, the Acquired Fund will
have good and marketable title to the Assets and
full right, power and authority to assign,
transfer, deliver and convey the Assets.
(i) The Financial Statements of the Acquired Fund,
a copy of which has been previously delivered
to 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.
(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 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.
(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 November 1, 2007, 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 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
Acquiring Fund.
(q) The Acquisition Shares to be issued to the
Acquired Fund pursuant to paragraph 4(e)(i)
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)(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.
7. 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, 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 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 4(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 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
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. 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 November 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
Fund?s operations and changes in Acquiring
Fund?s 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 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.
(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.
8. 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) The Stockholders of the Acquired Fund shall
have approved the Acquisition in the manner
required by the Charter of the Acquired Fund,
its 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
Acquisition Plan.
(b) 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.
(c) 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.
(d) 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.
(e) Acquiring Fund and the Acquired Fund shall
have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
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 Stockholder?s 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),
▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP with respect to the Funds
that are reasonably necessary to enable
▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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).
(f) 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.
(g) No action, suit or other proceeding shall be
threatened or pending before any court or
governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other
relief in connection with the Acquisition.
(h) The SEC shall not have issued any unfavorable
advisory report under Section 25(b) of the 1940
Act nor instituted any proceeding seeking to
enjoin consummation of the Acquisition under
Section 25(c) of the 1940 Act.
(i) Neither party shall have terminated this
Acquisition Plan with respect to the Acquisition
pursuant to Section 13 of this Acquisition Plan.
9. Conditions to the Obligations of the Acquired Fund
The obligations of the Acquired Fund with respect to
the Acquisition shall be subject to the following conditions
precedent:
(a) The Acquired Fund shall have received an
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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
(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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP may (i) rely on the opinion of ▇▇▇▇▇▇▇
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) Acquiring 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.
10. 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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 Acquiring 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, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP may (i) rely on the opinion of ▇▇▇▇▇▇▇
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.
11. Closing
(a) The Closing shall be held at the offices of the
Funds, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 Fund?s 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.
12. 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.
13. Termination of Acquisition Plan
A majority of either Fund?s Board of Directors may
terminate this Acquisition Plan with respect to that Fund at
any time before the applicable Effective Time if: (a) the
Fund?s conditions precedent set forth in Sections 8, 9 or 10
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.
14. 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.
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 this
Acquisition Plan.
16. Amendments
The parties may, by agreement in writing authorized
by their respective Board of Directors, amend this
Acquisition 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 Acquisition
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 (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.
18. Indemnification of Directors
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?s 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.
19. 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
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.
20. 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.
21. 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.
22. 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.
23. 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 Emerging
Market Debt Fund, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
For Acquiring Fund:
AllianceBernstein High Yield
Fund, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
24. Expenses
The Acquisition expenses shall be paid by each of the
Acquired Fund and the Acquiring Fund on a relative net
asset basis.
25. 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
EMERGING MARKET DEBT
FUND, INC.
Attest:
By:
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Assistant
Secretary
Title:
President
ALLIANCEBERNSTEIN HIGH
YIELD FUND, INC.
Attest:
By:
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Assistant
Secretary
Title:
President
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