-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MCEGsZ0vcFT+yTxoIEvBBSaU3zF7gVQsz90l5J9+mzoyFHRuVfdoljj+gjMTT0ER n0KNplIQyjrB9votZz4BUw== 0000919574-08-000013.txt : 20080103 0000919574-08-000013.hdr.sgml : 20080103 20080103141554 ACCESSION NUMBER: 0000919574-08-000013 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20080103 DATE AS OF CHANGE: 20080103 EFFECTIVENESS DATE: 20080103 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLIANCEBERNSTEIN VARIABLE PRODUCTS SERIES FUND INC CENTRAL INDEX KEY: 0000825316 IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS EX SEC ACT: 1933 Act SEC FILE NUMBER: 033-18647 FILM NUMBER: 08505463 BUSINESS ADDRESS: STREET 1: ALLIANCEBERNSTEIN LP STREET 2: 1345 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10105 BUSINESS PHONE: 2129691000 MAIL ADDRESS: STREET 1: ALLIANCEBERNSTEIN LP STREET 2: 1345 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10105 POS EX 1 d836840_pos-ex.txt As filed with the Securities and Exchange Commission on January 3, 2008 Registration No : Investment Company Act Registration No. 811-5398 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-14 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Pre-Effective Amendment No. Post-Effective Amendment No. 1 -------------------------------------------- ALLIANCEBERNSTEIN VARIABLE PRODUCTS SERIES FUND, INC. (Exact Name of Registrant as Specified in Charter) 1345 Avenue of the Americas, New York, New York 10105 (Address of Principal Executive Office) (Zip Code) Registrant's Telephone Number, including Area Code: (800) 221-5672 ------------------------------------------------------------------ EMILIE D. WRAPP AllianceBernstein L.P. 1345 Avenue of the Americas New York, New York l0105 (Name and address of agent for service) Copies of communications to: Kathleen K. Clarke Seward & Kissel LLP 1200 G Street, Nw Suite 350 Washington, DC 20005 The Joint Proxy Statement/Prospectus in the Form filed on November 2, 2007 and the Statement of Additional Information in the Form filed on November 16, 2007 pursuant to Rule 497 of the General Rules and Regulations under the Securities Act of 1933, as amended, are incorporated herein by reference. This amendment is being filed for the sole purpose of filing, as Exhibit 12 to this Registration Statement, the tax opinion of Seward & Kissel LLP, tax counsel for the Registrant. ALLIANCEBERNSTEIN VARIABLE PRODUCTS SERIES FUND, INC. CONTENTS OF FORM N-14 REGISTRATION STATEMENT This Registration Statement contains the following papers and documents: - ------------- ---------------------------------------------------------------- o Cover Sheet - ------------- ---------------------------------------------------------------- o Contents of Registration Statement - ------------- ---------------------------------------------------------------- o Form N-14 Cross Reference Sheet - ------------- ---------------------------------------------------------------- o Letter to Shareholders - ------------- ---------------------------------------------------------------- o Notice of Special Meetings of Shareholders - ------------- ---------------------------------------------------------------- o Part A - Proxy Statement/Prospectus - ------------- ---------------------------------------------------------------- o Part B - Statement of Additional Information - ------------- ---------------------------------------------------------------- o Part C - Other Information - ------------- ---------------------------------------------------------------- o Signatures - ------------- ---------------------------------------------------------------- o Exhibits - ------------- ---------------------------------------------------------------- CROSS REFERENCE SHEET - --------------------------------------- ------------------------------------- ITEM NO. PROXY/PROSPECTUS - --------------------------------------- ------------------------------------- Part A - --------------------------------------- ------------------------------------- 1. Beginning of Registration Cover Page/Questions & Answers Statement and Outside Front Cover Page of Prospectus - --------------------------------------- ------------------------------------- 2. Beginning of Outside Back Cover Page of Prospectus Questions & Answers - --------------------------------------- ------------------------------------- 3. Fee Table, Synopsis Information and Risk Factors Summary, Appendix A - --------------------------------------- ------------------------------------- 4. Information about the Letter to Stockholders, Transaction Questions and Answers, Summary, Information About the Proposed Transaction - --------------------------------------- ------------------------------------- 5. Information about the Letters to Stockholders, Registrant Questions and Answers, Summary, Information About the Funds - --------------------------------------- ------------------------------------- 6. Information about the Company Letters to Stockholders, Being Acquired Questions and Answers, Summary, Information About the Funds - --------------------------------------- ------------------------------------- 7. Voting Information Voting Information - --------------------------------------- ------------------------------------- 8. Interest of Certain Persons and Experts Experts - --------------------------------------- ------------------------------------- 9. Additional Information Required for Reoffering by Persons Deemed to be Underwriters Not Applicable - --------------------------------------- ------------------------------------- Part B - --------------------------------------- ------------------------------------- 10. Cover Page Cover Page - --------------------------------------- ------------------------------------- 11. Table of Contents Table of Contents - --------------------------------------- ------------------------------------- 12. Additional Information About SAI the Registrant - --------------------------------------- ------------------------------------- 13. Additional Information about SAI the Company being Acquired - --------------------------------------- ------------------------------------- 14. Financial Statements Incorporated by Reference to the SAI - --------------------------------------- ------------------------------------- 15-17. Information required to be included in Part C is set forth under the appropriate item, so numbered, in Part C of this Registration Statement - --------------------------------------- ------------------------------------- PART C OTHER INFORMATION Item 15. Indemnification It is the Registrant's policy to indemnify its directors and officers, employees and other agents to the maximum extent permitted by Section 2-418 of the General Corporation Law of the State of Maryland, which is incorporated by reference herein and as set forth in Article EIGHTH of Registrant's Charter, filed as Exhibit (a), Article IX of the Registrant's Amended and Restated By-Laws filed as Exhibit (b) and Section 9 of the Distribution Services Agreement filed as Exhibit (e)(1) and Class B Distribution Services Agreement filed as Exhibit (e)(2) in response to Item 23 of the Registrant's Registration Statement filed on Form N-1A (filed Nos. 33-18647 and 811-5398), as set forth below. The Adviser's liability for any loss suffered by the Registrant or its shareholders is set forth in Section 4 of the Advisory Agreement filed as Exhibit (d)(1) in response to Item 23 of the Registrant's Registration Statement filed on Form N-1A (filed Nos. 33-18647 and 811-5398), as set forth below. Article EIGHTH of the Registrant's Charter reads as follows: EIGHTH: (1) To the maximum extent that Maryland law in effect from time to time permits limitation of the liability of directors and officers of a corporation, no present or former director or officer of the Corporation shall be liable to the Corporation or its stockholders for money damages. (2) The Corporation shall have the power, to the maximum extent permitted by Maryland law in effect from time to time, to obligate itself to indemnify, and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a) any individual who is a present or former director or officer of the Corporation or (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner or trustee of another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise from and against any claim or liability to which such person may become subject or which such person may incur by reason of his status as a present or former director or officer of the Corporation. The Corporation shall have the power, with the approval of the Board of Directors, to provide such indemnification and advancement of expenses to a person who served a predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation or a predecessor of the Corporation. (3) The provisions of this Article EIGHTH shall be subject to the limitations of the Investment Company Act. (4) Neither the amendment nor repeal of this Article EIGHTH, nor the adoption or amendment of any other provision of the Charter or Bylaws inconsistent with this Article EIGHTH, shall apply to or affect in any respect the applicability of the preceding sections of this Article EIGHTH with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption. The Advisory Agreement between the Registrant and AllianceBernstein L.P. provides that AllianceBernstein L.P. will not be liable under such agreements for any mistake of judgment or in any event whatsoever except for lack of good faith and that nothing therein shall be deemed to protect, or purport to protect, AllianceBernstein L.P. against any liability to Registrant or its security holders to which it would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties thereunder, or by reason of reckless disregard of its obligations or duties thereunder. The Distribution Services Agreement between the Registrant and AllianceBernstein Investments, Inc. ("ABI") provides that the Registrant will indemnify, defend and hold ABI, and any person who controls it within the meaning of Section 15 of the Securities Act of 1933, as amended (the "Securities Act"), free and harmless from and against any and all claims, demands, liabilities and expenses which ABI or any controlling person may incur arising out of or based upon any alleged untrue statement of a material fact contained in Registrant's Registration Statement or Prospectus or Statement of Additional Information or arising out of, or based upon any alleged omission to state a material fact required to be stated in either thereof or necessary to make the statements in any thereof not misleading, provided that nothing therein shall be so construed as to protect ABI against any liability to Registrant or its security holders to which it would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties, or be reason of reckless disregard of its obligations or duties thereunder. The foregoing summaries are qualified by the entire text of Registrant's Articles of Incorporation, the Advisory Agreement between the Registrant and AllianceBernstein L.P. and the Distribution Services Agreement between the Registrant and ABI. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. In accordance with Release No. IC-11330 (September 2, 1980), the Registrant will indemnify its directors, officers, investment manager and principal underwriters only if (1) a final decision on the merits was issued by the court or other body before whom the proceeding was brought that the person to be indemnified (the indemnitee) was not liable by reason or willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office (disabling conduct) or (2) a reasonable determination is made, based upon a review of the facts, that the indemnitee was not liable by reason of disabling conduct, by (a) the vote of a majority of a quorum of the directors who are neither interested persons of the Registrant as defined in section 2(a)(19) of the Investment Company Act of 1940 nor parties to the proceeding (disinterested, non-party directors), or (b) an independent legal counsel in a written opinion. The Registrant will advance attorneys fees or other expenses incurred by its directors, officers, investment adviser or principal underwriters in defending a proceeding, upon the undertaking by or on behalf of the indemnitee to repay the advance unless it is ultimately determined that he is entitled to indemnification and, as a condition to the advance, (1) the indemnitee shall provide a security for his undertaking, (2) the Registrant shall be insured against losses arising by reason of any lawful advances, or (3) a majority of a quorum of disinterested, non-party directors of the Registrant, or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the indemnitee ultimately will be found entitled to indemnification. ARTICLE IX of the Registrant's Amended and Restated By-laws reads as follows: ARTICLE IX. Indemnification. To the maximum extent permitted by Maryland law in effect from time to time, the Corporation shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (a) any individual who is a present or former director or officer of the Corporation and who is made or threatened to be made a party to the proceeding by reason of his or her service in any such capacity or (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner or trustee of another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in any such capacity. The Corporation may, with the approval of its Board of Directors or any duly authorized committee thereof, provide such indemnification and advance for expenses to a person who served a predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation or a predecessor of the Corporation. The termination of any claim, action, suit or other proceeding involving any person, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or nolo contendere, or its equivalent, shall not create a presumption that such person did not meet the standards of conduct required for indemnification or payment of expenses to be required or permitted under Maryland law, these Bylaws or the Charter. Any indemnification or advance of expenses made pursuant to this Article shall be subject to applicable requirements of the 1940 Act. The indemnification and payment of expenses provided in these Bylaws shall not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment of expenses may be or may become entitled under any bylaw, regulation, insurance, agreement or otherwise. Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the Bylaws or Charter inconsistent with this Article, shall apply to or affect in any respect the applicability of the preceding paragraph with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption. The Registrant participates in a joint directors and officers liability insurance policy issued by the ICI Mutual Insurance Company. Coverage under this policy has been extended to directors, trustees and officers of the investment companies managed by AllianceBernstein L.P. Under this policy, outside trustees and directors are covered up to the limits specified for any claim against them for acts committed in their capacities as trustee or director. A pro rata share of the premium for this coverage is charged to each investment company and to the Adviser. ITEM 16. EXHIBITS: (1) Articles of Amendment and Restatement of the Registrant dated February 1, 2006 - Incorporated by reference to Exhibit (a)(2) to Post-Effective Amendment No. 41 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on March 1, 2006. (2) Amended and Restated By-Laws of the Registrant - Incorporated by reference to Exhibit 99.77Q1 - Other Exhibits to Form NSAR-A for the Registrant, filed with the Securities and Exchange Commission on August 29, 2006. (3) Not applicable. (4) Form of Plan of Acquisiton and Liquidation of AllianceBernstein Variable Products Series, Inc. with respect to its series, AllianceBernstein International Research Growth Portfolio and AllianceBernstein International Growth Portfolio - Incorporated by reference from Appendix G to Part A of Registrant's Registration Statement on Form N-14 (File Nos. 333-146372 and 811-5398), filed with the Securities and Exchange Commission on September 28, 2007. (5) Not applicable. (6) (a) Form of Investment Advisory Agreement between Registrant and AllianceBernstein L.P. - Incorporated by reference to Exhibit (d)(1) to Post-Effective Amendment No. 40 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 27, 2005. (b) Sub-Advisory Agreement between AllianceBernstein L.P. and Law, Dempsey & Company Limited, relating to the Global Bond Portfolio - Incorporated by reference to Exhibit (5)(b) to Post-Effective Amendment No. 22 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 29, 1998. (7) (a) Distribution Services Agreement between the Registrant and AllianceBernstein Investments, Inc. - Incorporated by reference to Exhibit (6) to Post-Effective Amendment No. 22 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 29, 1998. (b) Class B Distribution Services Agreement between the Registrant and AllianceBernstein Investments, Inc. - Incorporated by reference to Exhibit (c)(2) to Post-Effective Amendment No. 27 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on May 3, 1999. (8) Not applicable. (9) Custody Agreement between the Registrant and The Bank of New York - Incorporated by reference to Exhibit (g)(1) to Post-Effective Amendment No. 42 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 28, 2006. (10) (a) Rule 12b-1 Class B Distribution Plan - Incorporated by reference to Exhibit (m) to Post-Effective Amendment No. 27 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on May 3, 1999. (b) Amended and Restated Rule 18f-3 Plan - Incorporated by reference to Exhibit (n) to Post-Effective Amendment No. 36 of the Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on February 11, 2004. (11) Form of Opinion and Consent of Seward & Kissel LLP regarding the legality of securities being registered - Incorporated by reference from Registrant's Registration Statement on Form N-14 (File Nos. 333-146372 and 811-5398), filed with the Securities and Exchange Commission on September 28, 2007. (12) Opinion and Consent of Seward & Kissel LLP as to Tax matters - Filed herewith. (13) (a) Transfer Agency Agreement between the Registrant and AllianceBernstein Investor Services, Inc. - Incorporated by reference to Exhibit (9) to Post-Effective Amendment No. 22 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 29, 1998. (b) Expense Limitation Undertaking by AllianceBernstein L.P. - Incorporated by reference to Exhibit (h)(2) to Post-Effective Amendment No. 40 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 27, 2005. (c) Form of Expense Limitation Undertaking by AllianceBernstein L.P. - Incorporated by reference to Post-Effective Amendment No. 41 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on March 1, 2006. (d) Code of Ethics for the Fund - Incorporated by reference to Exhibit (p)(1) to Post-Effective Amendment No. 31 of Registrant's Registration Statement on Form N-1A (File Nos. 33-18647 and 811-5398), filed with the Securities and Exchange Commission on April 26, 2001. (e) Code of Ethics for the AllianceBernstein L.P. and AllianceBernstein Investments, Inc. - Incorporated by reference to Exhibit (p)(2) to Post-Effective Amendment No. 4 of the Registration Statement on Form N-1A of The AllianceBernstein Pooling Portfolios (File Nos. 333-120487 and 811-21673), filed with the Securities and Exchange Commission on December 29, 2006. (14) Consent of Independent Registered Public Accounting Firm - Incorporated by reference from Registrant's Registration Statement on Form N-14 (File Nos. 333-146372 and 811-5398), filed with the Securities and Exchange Commission on September 28, 2007. (15) Not applicable. (16) Powers of Attorney for: David H. Dievler, John H. Dobkin, Michael J. Downey, William H. Foulk, Jr., Marc O. Mayer and Earl D. Weiner - Incorporated by reference from Registrant's Registration Statement on Form N-14 (File Nos. 333-146372 ande 811-5398), filed with the Securities and Exchange Commission on September 28, 2007. (17) Not applicable. ITEM 17. Undertakings (1) The undersigned registrant agrees that prior to any public reoffering of the securities registered through the use of a prospectus which is a part of this registration statement by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c) of the Securities Act 17 CFR 230.145(c), the reoffering prospectus will contain the information called for by the applicable registration form for reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. (2) The undersigned registrant agrees that every prospectus that is filed under paragraph (1) above will be filed as a part of an amendment to the registration statement and will not be used until the amendment is effective, and that, in determining any liability under the 1933 Act, each post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering of them. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as the Registrant has duly caused this Registration Statement on Form N-14 to be signed on its behalf by the undersigned, duly authorized, in the City of New York and State of New York, on the 3rd day of January, 2008. ALLIANCEBERNSTEIN VARIABLE PRODUCTS SERIES FUND, INC. By: Marc O. Mayer* ------------------ Marc O. Mayer President Pursuant to the requirements of the Securities Act of 1933, as amended Registration Statement has been signed below by the following persons in the capacities and on the date indicated: SIGNATURE TITLE DATE 1. Principal Executive Officer Marc O. Mayer* President and Chief Executive Officer January 3, 2008 2. Principal Financial and Accounting Officer /s/ Joseph J. Mantineo Treasurer and ------------------------- Chief Financial Joseph J. Mantineo Officer January 3, 2008 3. Majority of Directors: David H. Dievler* John H. Dobkin* William H. Foulk, Jr.* Michael Downey* Marc O. Mayer* Earl D. Weiner* *By: /s/ Andrew L. Gangolf January 3, 2008 ----------------------- Andrew L. Gangolf (Attorney-in-fact) INDEX TO EXHIBITS Exhibit No. Description of Exhibits - ---------- ----------------------- (12) Tax Opinion of Seward & Kissel LLP EX-12 2 d836840_ex12.txt Exhibit (12) AllianceBernstein International Research Growth Portfolio a series of AllianceBernstein Variable Products Series Fund, Inc. 1345 Avenue of the Americas New York, New York 10105 AllianceBernstein International Growth Portfolio a series of AllianceBernstein Variable Products Series Fund, Inc. 1345 Avenue of the Americas New York, New York 10105 Re: Acquisition of the Assets and Assumption of the Liabilities of AllianceBernstein International Research Growth Portfolio by AllianceBernstein International Growth Portfolio Ladies and Gentlemen: I. Introduction We have acted as counsel to AllianceBernstein International Research Growth Portfolio ("Target") and to AllianceBernstein International Growth Portfolio ("Acquirer"), each of which is a series of AllianceBernstein Variable Products Series Fund, Inc., a Maryland corporation, in connection with the Acquisition provided for in the Plan of Acquisition and Liquidation of AVP with respect to Target and Acquirer, dated as of September 25, 2007 (the "Plan"). Pursuant to Section 5(b) of the Plan, Target and Acquirer have each requested our opinion as to certain of the federal income tax consequences to Target, Acquirer and the stockholders of Target ("Target Stockholders") in connection with the Acquisition. Each capitalized term not defined herein has the meaning ascribed to that term in the Plan. II. Relevant Facts AVP is registered as an open-end management investment company under the Investment Company Act of 1940, as amended (the "Act"). The Plan and the Acquisition have been approved by the Board of Directors of AVP (the "Board"). The terms and conditions of the Acquisition are set forth in the Plan. Pursuant to the Plan, Target will transfer all of its Assets to Acquirer solely in exchange for shares (including fractional shares) of the stock of Acquirer ("Acquirer Shares") and the assumption by Acquirer of all the Liabilities of Target existing on or after the Effective Time of the Acquisition. At the Closing Date, Target will liquidate and distribute all of the Acquirer Shares that it received in connection with the Acquisition to those then former Target Stockholders in exchange for all the then outstanding shares of the stock of Target ("Target Shares"). Upon completion of the Acquisition, each such former Target Stockholders will be the owner of full and fractional Acquirer Shares equal in net asset value as of the Closing Date to the net asset value of the Target Shares such Target Stockholder held prior to the Acquisition. Pursuant to the Plan, Target and Acquirer will bear any expenses incurred in connection with the Acquisition on a pro rata basis in accordance with their respective net asset values as of the Effective Time of the Acquisition. The investment objective of both Target and Acquirer is long-term growth of capital. Target invests primarily in an international portfolio of equity securities of companies within various market sectors selected by the Adviser for their growth potential in both developed and emerging countries. Acquirer invests primarily in an international portfolio of equity securities of companies located in both developed and emerging countries. Each of Target and Acquirer invests (i) primarily in the equity securities of non-U.S. companies and (ii) under normal circumstances, in the equity securities of companies located in at least three countries (and normally substantially more) other than the United States. According to the Form N-CSR filed by each of Target and Acquirer with the United States Securities and Exchange Commission, on September 7, 2007 in the case of Acquirer for the period ended June 30, 2007 and on October 9, 2007 in the case of Target for the period ended July 31, 2007, each of Target and Acquirer has over 94 percent of its net assets invested in common equity securities and substantially all of the equity securities are issued by non-U.S. companies. In rendering the opinions set forth below, we have examined the Registration Statement on Form N-14 of Acquirer relating to the Acquisition and such other documents and materials as we have deemed relevant. For purposes of rendering our opinions, we have relied exclusively, as to factual matters, upon the statements made in that Registration Statement and, with your approval, upon the following assumptions the correctness of each of which have been verified (or appropriately represented) to us by officers of Acquirer and Target: (1) The Plan has been duly approved by the Board. (2) Each of Target and Acquirer: (a) is a "fund" (as defined in Section 851(g)(2) of the United States Internal Revenue Code of 1986, as amended (the "Code")); (b) has qualified for treatment as a regulated investment company under Part I of Subchapter M of Subtitle A, Chapter 1, of the Code (a "RIC") for each taxable year since the commencement of its operations and qualifies for treatment as a RIC during its current taxable year which includes the Effective Time; (c) will invest its assets at all times through the Effective Time in a manner that ensures compliance with the foregoing; and (d) has no earnings and profits accumulated in any taxable year in which it did not qualify as a RIC. (3) The Adviser will operate the business of Target in the ordinary course between the date of the Plan and the Effective Time, including the declaration and payment of customary dividends and other distributions and any other distributions deemed advisable in anticipation of the Acquisition. From the date it commenced operations through the Effective Time, Target will conduct its "historic business" (within the meaning of Section 1.368-1(d)(2) of the Treasury Regulations) in a substantially unchanged manner. Before the Effective Time, Target will not (a) dispose of and/or acquire any assets (i) for the purpose of satisfying Acquirer's investment objective or policies, or (ii) for any other reason except in the ordinary course of its business as a RIC, or (b) otherwise change its historic investment policies. (4) Following the Acquisition, Acquirer (a) has no plan or intention to sell or otherwise dispose of any of the securities acquired from Target, except for dispositions made in the ordinary course of its business and dispositions necessary to maintain its status as a RIC and (b) will continue in the same business as it conducted prior to the Acquisition and will continue to invest its assets in accordance with the description of its investment activities set forth in the Prospectus. (5) The Target Stockholders will receive no consideration pursuant to the Acquisition other than Acquirer Shares. (6) The Target Stockholders will pay any expenses incurred by them in connection with the Acquisition. (7) The liabilities of Target to be assumed by Acquirer in the Acquisition have been incurred in the ordinary course of business of Target or were incurred by Target solely and directly in connection with the Acquisition. (8) During the five-year period ending at the Effective Time, (a) neither Target nor any person "related" (within the meaning of Section 1.368-1(e)(3) of the Treasury Regulations) to Target will have acquired Target Shares, either directly or through any transaction, agreement, or arrangement with any other person, with consideration other than Acquirer Shares or Target Shares, except for Target Shares redeemed in the ordinary course of Target's business as a series of an open-end investment company as required by Section 22(e) of the Act, and (b) no distributions will have been made with respect to Target Shares, other than normal, regular dividend distributions made pursuant to Target's historic dividend-paying practice and other distributions that qualify for the deduction for dividends paid (within the meaning of Section 561 of the Code) referred to in Sections 852(a)(1) and 4982(c)(1)(A) of the Code. (9) Acquirer has no plan or intention to issue additional Acquirer Shares following the Acquisition except for Acquirer Shares issued in the ordinary course of its business as a series of an open-end investment company; nor does Acquirer, or any person "related" (within the meaning of Section 1.368-1(e)(3) of the Treasury Regulations) to Acquirer, have any plan or intention to acquire, during the five-year period beginning at the Effective Time, either directly or through any transaction, agreement, or arrangement with any other person, any Acquirer Shares issued to Target Stockholders pursuant to the Acquisition, except for redemptions in the ordinary course of such business as required by Section 22(e) of the Act. (10) During the five-year period ending at the Effective Time, neither Acquirer nor any person "related" (within the meaning of Section 1.368-1(e)(3) of the Treasury Regulations) to Acquirer will have acquired Target Shares with consideration other than Acquirer Shares. (11) Without limiting the effect of paragraphs 8, 9, and 10 above, the aggregate value of the acquisitions, redemptions and distributions will not exceed 50% of the value (without giving effect to such acquisitions, redemptions, and distributions) of the Target Shares at the Effective Time. (12) (a) There is no plan or intention of the Target Stockholders to redeem, sell or otherwise dispose of (i) any portion of their Target Shares before the Acquisition to any person "related" (within the meaning of Section 1.368-1(e)(3) of the Treasury Regulations) to either Target or Acquirer or (ii) any portion of the Acquirer Shares they receive in the Acquisition to any person "related" (within such meaning) to Acquirer. (b) It is not anticipated that dispositions of those Acquirer Shares at the time of, or immediately after, the Acquisition will exceed the usual rate and frequency of dispositions of Target Shares as a series of an open-end investment company. (c) It is expected that the percentage of Target Shares, if any, that will be disposed of as a result of, or at the time, of the Acquisition will be de minimis, and that there will be no extraordinary redemptions of Target Shares immediately following the Acquisition. (13) The fair market value of the assets of Target transferred to Acquirer will equal or exceed the sum of (a) the amount of liabilities of Target assumed by Acquirer, and (b) the amount of Liabilities, if any, to which the transferred assets are subject. (14) There are no pending or threatened claims or assessments that have been asserted by or against Target, other than any disclosed and reflected in the net asset value of Target. (15) There are no unasserted claims or assessments against Target that are probable of assertion. (16) There is no plan or intention for Acquirer to be dissolved or merged into another business trust or a corporation or any "fund" thereof (as defined in Section 851(g)(2) of the Code) following the Acquisition. (17) At no time during the five-year period ending at the Effective Time, has the Acquirer directly or indirectly owned any Target Shares. (18) The fair market value of the Acquirer Shares each Target Stockholder receives in connection with the Acquisition will be approximately equal to the fair market value of the Target Shares it surrenders in exchange therefor. (19) Pursuant to the Acquisition, Target will transfer to Acquirer, and Acquirer will acquire, at least 90% of the fair market value of the net assets, and at least 70% of the fair market value of the gross assets, that Target held immediately before the Acquisition. For the purposes of the foregoing, any amounts Target uses to pay its Acquisition expenses and to make redemptions and distributions immediately before the Acquisition (except (a) redemptions in the ordinary course of its business required by Section 22(e) of the Act and (b) regular, normal dividend distributions made to conform to its policy of distributing all or substantially all of its income and gains to avoid the obligation to pay federal income tax and/or the excise tax under Section 4982 of the Code) will be included as assets held thereby immediately before the Acquisition. (20) There is no intercompany indebtedness between Acquirer and Target that was issued or acquired, or will be settled, at a discount. (21) The sum of (a) the expenses incurred by the Adviser pursuant to the Plan and (b) the liabilities of Target to be assumed by Acquirer in the Acquisition will not exceed 20% of the fair market value of the assets of Target transferred to Acquirer pursuant to the Acquisition. III. Relevant Law A corporation which is a "party to a reorganization" will not recognize gain or loss if it exchanges property pursuant to a plan of reorganization solely for stock or securities of another corporation which is a party to the reorganization.(1) Likewise, the shareholders of a corporation will not recognize gain or loss if they exchange stock or securities of a corporation which is a party to a reorganization solely for stock or securities in such corporation or another corporation which is a party to the reorganization in pursuant of the plan of reorganization.(2) - ---------- (1) Code ss. 361. (2) Code ss. 354. In order to be a treated as a "reorganization," a transaction must satisfy certain statutory requirements contained in Code Section 368 as well as certain regulatory requirements contained in the Treasury Regulations thereunder. Code Section 368(a)(1)(C) provides that a "reorganization" includes the acquisition by one corporation in exchange solely for all or a part of its voting stock of substantially all of the properties of another corporation. Code Section 368(a)(2)(F) provides that two or more investment companies may engage in a "reorganization" only if each of them is either a RIC, a real estate investment trust or they each meet certain diversification requirements. In addition to the statutory language of Code Section 368, there are two significant non-statutory requirements for a reorganization, the continuity of interest ("COI") requirement and the continuity of business enterprise ("COBE") requirement. (3) - ---------- (3) Treas. Reg. ss. 1.368-1(b). In order to satisfy the COI requirement, "a substantial part of the value of the proprietary interests in the target corporation must be preserved."(4) This is accomplished "if, in a potential reorganization, [the proprietary interest in the target corporation] is exchanged for a proprietary interest in the issuing corporation..."(5) For this purpose, a proprietary interest in the target corporation is not preserved if persons related to the acquiring corporation acquire stock of the target corporation for consideration other than stock of the acquiring corporation.(6) - ---------- (4) Treas. Reg. ss. 1.368-1(e)(1)(i). (5) Id. (6) Treas. Reg. ss. 1.368-1(e)(3). In order to satisfy the COBE requirement, a reorganization may satisfy either the "historic business test" or the "historic asset test." Under the "historic business test," a taxpayer can establish COBE if it either (i) continues the target's historic business, or (ii) continues any significant historic line of business of the target if the target has more than one line of business. For this purpose, a line of business entered into as part of the plan of reorganization is not a historic business. Under the "historic asset test," a taxpayer can establish asset continuity if is uses a "significant" portion of the target's historic business assets in a business. " Historic business assets" may include stock, securities, or intangible operating assets if they are used in the target's historic business.(7) - ---------- (7) Treas. Reg. ss. 1.368-1(d)(1)-(3). In interpreting the "historic business test" in the case of a reorganization involving a RIC, the Internal Revenue Service has held that a corporation engaged in the business of investing in a portfolio of corporate stocks and bonds was not in the same business as a diversified open-end RIC investing in high-grade municipal bonds.(8) - ---------- (8) Rev. Rul. 87-76, 1987-2 C.B. 84. The Acquisition will be a transfer of substantially all of the assets of Target to Acquirer, each of which is a corporation, in exchange solely for stock of Acquirer, which will then be distributed to the Target Stockholders. Therefore, the Acquisition will satisfy the statutory language of Section 368(a)(1)(C) to be treated as a "reorganization." Since each of Acquirer and Target is a RIC, the Acquisition will satisfy the statutory language of Section 368(a)(2)(F) to be treated as a "reorganization." Based upon the representations made above with respect to acquisitions of Target Shares by persons "related" to Acquirer, each Target Stockholder will receive solely stock of Acquirer as a result of the Acquisition. Therefore, the Acquisition will satisfy the COI requirement. Acquirer and Target are each engaged in the business of investing in the equity securities of non-U.S. companies. Based on the most recent Form N-CSR filed by each of Acquirer and Target, each of Acquirer and Target had invested over 94 percent of its assets in equity securities of non-U.S. companies. In addition, each of Acquirer and Target pursue a strategy that focuses on the long-term growth of capital, as opposed to either a value strategy or an income strategy. Based upon the above, we believe that Acquirer and Target are engaged in the same "historic business" and Acquirer will continue to pursue this historic business after the Acquisition. Therefore, in our view, the Acquisition will satisfy the "historic business test" of the COBE requirement for a "reorganization." Alternatively, since Acquirer has no plan or intention to sell or otherwise dispose of any of the securities acquired from Target, except for dispositions made in the ordinary course of that business and dispositions necessary to maintain its status as a RIC, we believe Acquirer will use the securities acquired from Target in its historic business so that Acquirer will satisfy the "historic asset test" of the COBE requirement and thus will satisfy the COBE requirement. IV. Opinions Based upon the foregoing and upon our consideration of the Code, the Treasury Regulations promulgated under the Code, published Revenue Rulings, Revenue Procedures and other published pronouncements of the Internal Revenue Service, the published opinions of the United States Tax Court and other United States federal courts, and such other authorities as we consider relevant, each as they exist as of the date hereof, we are of the opinion that, for federal income tax purposes: (1) The Acquisition will constitute a "reorganization" within the meaning of Section 368(a) of the Code, and Target and Acquirer will each be a "party to a reorganization" within the meaning of Section 368(b) of the Code. (2) Each Target Stockholder will recognize no gain or loss on such stockholder's receipt of Acquirer Shares (including any fractional Acquirer Share to which the stockholder may be entitled) in exchange for the stockholder's Target Shares in connection with the Acquisition. (3) Neither Target nor Acquirer will recognize any gain or loss upon the transfer by Target of all of the Assets to Acquirer solely in exchange for Acquirer Shares and the assumption by Acquirer of the Liabilities pursuant to the Plan or upon the distribution of Acquirer Shares to Target Stockholders in exchange for their respective Target Shares. (4) The holding period and tax basis of the Assets acquired by Acquirer will be the same as the holding period and tax basis that Target had in the Assets immediately prior to the Acquisition. (5) The aggregate tax basis of Acquirer Shares received in connection with the Acquisition by each Target Stockholder (including any fractional Acquirer Share to which the stockholder may be entitled) will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefor. (6) The holding period of Acquirer Shares received in connection with the Acquisition by each Target Stockholder (including any fractional Acquirer Share to which the stockholder may be entitled) will include the holding period of the Target Shares surrendered in exchange therefor, provided that such Target Shares constitute capital assets in the hands of the stockholder as of the Closing Date. (7) Acquirer will succeed to the capital loss carryovers of Target, if any, under Section 381 of the Code, but the use by Acquirer of any such capital loss carryovers (and of any capital loss carryovers of Acquirer) may be subject to limitation under Section 383 of the Code. While the payment of expenses by the Adviser pursuant to the Plan will not affect the opinions expressed above, no opinion is expressed herein as to whether the payment of such expenses by the Adviser will have other federal income tax consequences to Acquirer, Target or Target Stockholders. Because our opinion is based upon current law, no assurance can be given that existing United States federal income tax laws will not be changed by future legislative or administrative or judicial interpretation, any of which could affect the opinion expressed above. This opinion is provided to you in connection with the Acquisition. This opinion may not be quoted or relied upon by any other person or entity, or for any other purpose, without our prior written consent. Very truly yours, /s/ Seward & Kissel LLP -------------------------------- Seward & Kissel LLP SK 99999 0010 836840 -----END PRIVACY-ENHANCED MESSAGE-----