As filed with the Securities and Exchange Commission on May 9, 2019
Registration No. : 333-228555
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
____________________________________________
AB 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:
Paul M. Miller
Seward & Kissel LLP
901 K Street, N.W.
Suite 800
Washington, D.C. 20001
This Post-Effective Amendment No. 1 is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended, solely for the purpose of filing as an exhibit to the Registration Statement the tax opinion of Seward & Kissel LLP, tax counsel for the Registrant, as required by Item 16(12) of Form N-14. Parts A and B of this Registration Statement are incorporated herein by reference to the Prospectus and Statement of Additional Information, each filed with the Securities and Exchange Commission under Rule 497 on January 28, 2019 (File nos. 333-228555 and 811-5398).
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 and as set forth in Article EIGHTH of Registrant's Amended and Restated Articles of Incorporation, filed as Exhibit (1), Article IX of the Registrant’s Amended and Restated By-Laws filed as Exhibit (2) and Section 9 of the Distribution Services Agreement filed as Exhibit (7)(a) and Class B Distribution Services Agreement filed as Exhibit (7)(b). 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 (6)(a) in response to Item 16. | |
| Article EIGHTH of the Registrant's Articles of Incorporation provide 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. |
| C-1 |
| 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. | |
| C-2 |
| 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. | |
| C-3 |
| 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’ liability insurance policy issued by the ICI Mutual Insurance Company. 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 participating investment company. In addition, the Adviser’s liability insurance policy, which is issued by a number of underwriters, including Greenwich Insurance Company as primary underwriter, extends to officers of the Registrant and such officers are covered up to the limits specified for any claim against them for acts committed in their capacities as officers of the investment companies sponsored by the Adviser. | ||
| ITEM 16. | Exhibits | |
| (1) | (a) Articles of Amendment and Restatement to Articles of Incorporation of the Registrant dated February 1, 2006 and filed February 23, 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 811-05398), filed with the Securities and Exchange Commission on March 1, 2006. | |
| (b) Articles of Amendment to Articles of Incorporation of the Registrant, dated January 9, 2008 and filed January 15, 2008 – Incorporated by reference to Exhibit (a)(2) to Post-Effective Amendment No. 44 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on March 3, 2008. | ||
| (c) Articles of Amendment to Articles of Incorporation of the Registrant, dated April 28, 2008 and filed April 28, 2008 – Incorporated by reference to Exhibit (a)(3) to Post-Effective Amendment No. 46 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2008. | ||
| (d) Articles of Amendment to Articles of Incorporation of the Registrant, dated April 28, 2008 and filed April 28, 2008 – Incorporated by reference to Exhibit (a)(4) to Post-Effective Amendment No. 46 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2008. | ||
| C-4 |
| (e) Articles of Amendment to Articles of Incorporation of the Registrant, dated September 26, 2008 and filed September 26, 2008 – Incorporated by reference to Exhibit (a)(5) to Post-Effective Amendment No. 48 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on February 26, 2009. | ||
| (f) Articles of Amendment to Articles of Incorporation of the Registrant, dated March 9, 2009 and filed April 6, 2009 – Incorporated by reference to Exhibit (a)(6) to Post-Effective Amendment No. 49 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2009. | ||
| (g) Articles of Amendment to Articles of Incorporation of the Registrant, dated March 30, 2009 and filed March 31, 2009 – Incorporated by reference to Exhibit (a)(7) to Post-Effective Amendment No. 49 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2009. | ||
| (h) Articles of Amendment to Articles of Incorporation of the Registrant, dated March 30, 2009 and filed March 31, 2009 – Incorporated by reference to Exhibit (a)(8) to Post-Effective Amendment No. 49 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2009. | ||
| (i) Articles of Amendment to Articles of Incorporation of the Registrant, dated October 2, 2009 and filed October 5, 2009 – Incorporated by reference to Exhibit (a)(9) to Post-Effective Amendment No. 50 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on February 25, 2010. | ||
| (j) Articles of Amendment to Articles of Incorporation of the Registrant, dated October 2, 2009 and filed October 5, 2009 – Incorporated by reference to Exhibit (a)(10) to Post-Effective Amendment No. 50 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on February 25, 2010. | ||
| (k) Articles of Amendment to Articles of Incorporation of the Registrant, dated March 16, 2011 and filed March 16, 2011 – Incorporated by reference to Exhibit (a)(11) to Post-Effective Amendment No. 53 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on March 31, 2011. |
| C-5 |
| (l) Articles of Amendment to Articles of Incorporation of the Registrant, dated and filed on June 6, 2012 – Incorporated by reference to Exhibit (a)(12) to Post-Effective Amendment No. 58 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 26, 2013. | ||
| (m) Articles Supplementary to Articles of Incorporation of the Registrant, dated and filed on February 5, 2015 – Incorporated by reference to Exhibit (a)(13) to Post-Effective Amendment No. 62 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on February 11, 2015. | ||
| (n) Articles of Amendment to Articles of Incorporation of the Registrant, effective and filed on March 30, 2015 – Incorporated by reference to Exhibit (a)(13) to Post-Effective Amendment No. 63 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 30, 2015. | ||
| (2) | By-Laws - 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) | Voting Trust Agreements. – Not Applicable. | |
| (4) | Form of Plan of Acquisition and Liquidation – Incorporated by reference to Appendix F of Registrant’s Prospectus filed under Rule 497 (File Nos. 333-228555 and 811-5398), filed with the Securities and Exchange Commission on January 28, 2019. | |
| (5) | Instruments defining the rights of holders of the securities being registered. – Not Applicable. | |
| (6) | (a) Investment Advisory Agreement between the Registrant and AllianceBernstein L.P., dated July 22, 1992, as amended as of May 1, 1997, May 1, 2001, May 1, 2003, May 1, 2004, September 7, 2004, May 1, 2005, August 3, 2006, April 1, 2011, April 28, 2015, February 3, 2017 and January 30, 2018 – Incorporated by reference to Exhibit (d)(1) to Post-Effective Amendment No. 74 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 26, 2018. | |
| C-6 |
| (b) Investment Advisory Contract between the Registrant, with respect to AB Multi-Manager Alternative Strategies Portfolio, and AllianceBernstein L.P., dated December 16, 2015 – Incorporated by reference to Exhibit (d)(2) to Post-Effective Amendment No. 66 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2016. | ||
| (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 811-05398), 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 (e)(2) to Post-Effective Amendment No. 28 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on May 4, 1999. | ||
| (8) | Bonus, profit sharing, pension or other similar contracts or arrangements. - Not applicable. | |
| (9) | (a) Master Custodian Agreement dated August 3, 2009 between the Registrant and State Street Bank and Trust Company - Incorporated by reference to Exhibit (g) to Post-Effective Amendment No. 51 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 29, 2010. | |
| (b) Amendment to the Master Custodian Agreement, dated April 1, 2015, between the Registrant , with respect to AB Global Risk Allocation – Moderate Portfolio, AB Global Bond Portfolio and AB Multi-Manager Alternative Strategies Portfolio, and State Street Bank and Trust Company – Incorporated by reference to Exhibit (g)(2) to Post-Effective Amendment No. 63 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 30, 2015. | ||
| (10) | (a) Rule 12b-1 Class B Distribution Plan - Incorporated by reference to Exhibit (m) to Post-Effective Amendment No. 28 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on May 4, 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 811-05398), filed with the Securities and Exchange Commission on February 11, 2004. |
| C-7 |
| (11) | Opinion and Consent of Seward & Kissel LLP regarding the legality of securities being registered – Incorporated by reference to the Registrant’s Registration Statement on Form N-14 (File Nos. 333-228555 and 811-5398), filed with the Securities and Exchange Commission on November 26, 2018. | |
| (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 811-05398), 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 811-05398), 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 Exhibit (h) to Post-Effective Amendment No. 41 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on March 1, 2006. | ||
| (d) Expense Limitation Agreement between Registrant and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(4) to Post-Effective Amendment No. 58 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 26, 2013. | ||
| (e) Expense Limitation Agreement, dated April 29, 2015, between the Registrant, on behalf of AB Global Bond Portfolio, and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(5) to Post-Effective Amendment No. 63 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 30, 2015. | ||
| (f) Acquired Fund Fee and Expense Waiver Agreement, dated April 29, 2015, between the Registrant, on behalf of AB Global Bond Portfolio, and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(7) to Post-Effective Amendment No. 63 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 30, 2015. | ||
| C-8 |
| (g) Expense Limitation Agreement, dated December 16, 2015, between the Registrant, on behalf of AB Multi-Manager Alternative Strategies Portfolio, and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(8) to Post-Effective Amendment No. 66 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2016. | ||
| (h) Acquired Fund Fee and Expense Waiver Agreement, dated December 16, 2015, between the Registrant, on behalf of AB Multi-Manager Alternative Strategies Portfolio and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(9) to Post-Effective Amendment No. 66 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 28, 2016. | ||
| (i) Management Fee Waiver Undertaking, dated June 1, 2016, by AllianceBernstein L.P. - Incorporated by reference to Exhibit (h)(15) to Post-Effective Amendment No. 172 of the Registration Statement on Form N-1A of AB Bond Fund, Inc. (File Nos. 2-48227 and 811-02383), filed with the Securities and Exchange Commission on February 23, 2018. | ||
| (j) Expense Limitation Agreement, dated April 28, 2016, between the Registrant, on behalf of AB Global Risk Allocation – Moderate Portfolio, and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(10) to Post-Effective Amendment No. 74 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 26, 2018. | ||
| (k) Form of Acquired Fund Fee Waiver Undertaking, dated May 1, 2018, between the Registrant, on behalf of AB Balanced Wealth Strategy Portfolio, and AllianceBernstein L.P. – Incorporated by reference to Exhibit (h)(11) to Post-Effective Amendment No. 74 of Registrant’s Registration Statement on Form N-1A (File Nos. 33-18647 and 811-05398), filed with the Securities and Exchange Commission on April 26, 2018. | ||
| (14) | Consent of Independent Registered Public Accounting Firm – Incorporated by reference to the Registrant’s Registration Statement on Form N-14 (File Nos. 333-228555 and 811-5398), filed with the Securities and Exchange Commission on November 26, 2018. | |
| (15) | Financial Statements omitted pursuant to Item 14(a)(1). - Not applicable | |
| C-9 |
| (16) | Powers of Attorney for: Michael J. Downey, William H. Foulk, Jr., Nancy P. Jacklin, Robert M. Keith, Carol C. McMullen, Garry L. Moody, Marshall C. Turner, Jr. and Earl D. Weiner – Incorporated by reference to the Registrant’s Registration Statement on Form N-14 (File Nos. 333-228555 and 811-5398), filed with the Securities and Exchange Commission on November 26, 2018. | |
| (17) | Additional Exhibits. – 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. | ||
| C-10 |
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 9th day of May, 2019.
| AB VARIABLE PRODUCTS SERIES FUND, INC. | |||
| By: | /s/ Robert M. Keith | ||
| Robert M. Keith | |||
| President | |||
As required by the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:
| Signature | Title | Date | |||
| 1) | Principal Executive Officer: | ||||
| /s/ Robert M. Keith | President and Chief Executive Officer | May 9, 2019 | |||
| Robert M. Keith | |||||
| 2) | Principal Financial andAccounting Officer: | ||||
| /s/ Joseph J. Mantineo | Treasurer and Chief Financial Officer | May 9, 2019 | |||
| Joseph J. Mantineo | |||||
| 3) | Directors: | ||||
| Michael J. Downey* Nancy P. Jacklin* Robert M. Keith* Carol C. McMullen* Garry L. Moody* Marshall C. Turner, Jr.* Earl D. Weiner* |
|||||
| * By: | /s/ Emilie D. Wrapp | May 9, 2019 | |||
| Emilie D. Wrapp | |||||
| (Attorney-in-Fact) | |||||
| C-11 |
INDEX TO EXHIBITS
| Exhibit No. | Description of Exhibits | |
| (12) | Tax Opinion and Consent of Seward & Kissel LLP | |
Exhibit (12)
|
Seward & Kissel llp ONE BATTERY PARK PLAZA NEW YORK, NEW YORK 10004 |
|||
|
TELEPHONE: (212) 574-1200 FACSIMILE: (212) 480-8421 WWW.SEWKIS.COM |
901 K STREET, NW WASHINGTON, D.C. 20001 TELEPHONE: (202) 737-8833 FACSIMILE: (202) 737-5184 | ||
| April 26, 2019 |
AB Variable Products Series Fund, Inc.— AB Value Portfolio
1345 Avenue of the Americas
New York, New York 10105
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
1345 Avenue of the Americas
New York, New York 10105
| Re: | Acquisition of the Assets and Assumption of the Liabilities of AB Variable Products Series Fund, Inc. — AB Value Portfolio by AB Variable Products Series Fund, Inc. — AB Growth and Income Portfolio |
||
Ladies and Gentlemen:
I. Introduction
We have acted as counsel to AB Value Portfolio, a series of AB Variable Products Series Fund, Inc. (“AVP”), a Maryland corporation (“Target”), and AB Growth and Income Portfolio, a series of AVP (the “Acquirer”), in connection with the Acquisition provided for in the Agreement and Plan of Acquisition and Liquidation among the Target, the Acquirer and certain other parties, dated as of November 8, 2018 (the “Plan”). Pursuant to Section 5(b) of the Plan, Target and Acquirer have requested our opinion as to certain of the United States federal income tax consequences to Acquirer, Target and the shareholders of Target (“Target Shareholders”) in connection with the Acquisition. Each capitalized term not defined herein has the meaning ascribed to that term in the Plan.
II. Relevant Facts
Target and Acquirer are each a series of AVP, a registered, open-end management investment company under the Investment Company Act of 1940, as amended (the “Act”). Shares of the Target and the Acquirer are not sold directly to individuals. The Target and the Acquirer only offer their shares through the separate accounts of life insurance companies that fund variable annuity contracts and variable life insurance policies. Each of the Target and the Acquirer seeks to comply with the diversification requirements of Section 817(h) of the Code.
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 2
The Plan and the Acquisition have been approved by the Board of Directors of Acquirer and Target. 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 in exchange for shares (including fractional shares) of Acquirer (“Acquirer Shares”) and the assumption by Acquirer of all the Liabilities of Target existing at the Effective Time of the Acquisition. At the Closing Date or as soon as reasonably practicable thereafter, Target will liquidate and distribute all of the Acquirer Shares that it received in connection with the Acquisition to those then former Target Shareholders in exchange for all of the then outstanding shares of Target (“Target Shares”). Upon completion of the Acquisition, each such former Target Shareholder 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 shareholder held prior to the Acquisition. The Target and the Acquirer will pay the expenses relating to the Acquisition.
The stated investment objective of Acquirer is long-term growth of capital. Acquirer invests primarily in the equity securities of U.S. companies that the Adviser believes are undervalued.
The stated investment objective of Target is long-term growth of capital. Target invests primarily in a diversified portfolio of equity securities of U.S. companies with relatively large market capitalizations that the Adviser believes are undervalued..
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 Target and Acquirer:
(1) Acquirer is a “fund” (as defined in Section 851(g)(2) of the United States Internal Revenue Code of 1986, as amended (the “Code”)). Each of Target and Acquirer: (a) 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; (b) will invest its assets at all times through the Effective Time in a manner that ensures compliance with the foregoing; and (c) has no earnings and profits accumulated in any taxable year in which it did not qualify as a RIC.
(2) AllianceBernstein L.P. (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.
(3) Following the Acquisition, Acquirer 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. At least one-third of the assets of the Target satisfy the investment objectives, strategies, policies, risks and restrictions of the Acquirer.
(4) The Target Shareholders will receive no consideration pursuant to the Acquisition other than Acquirer Shares.
(5) The Target Shareholders will pay any expenses incurred by them in connection with the Acquisition.
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 3
(6) The liabilities of Target to be assumed by Acquirer in the Acquisition have been incurred in the ordinary course of business of Target or incurred by Target solely and directly in connection with the Acquisition.
(7) 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 it 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 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.
(8) 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 an open-end investment company. Neither Acquirer nor any person “related” (within the meaning of Section 1.368-1(e)(3) of the Treasury Regulations) to it has 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 the Target Shareholders pursuant to the Acquisition, except for redemptions in the ordinary course of such business.
(9) 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 it will have acquired Target Shares with consideration other than Acquirer Shares.
(10) Without limiting the effect of paragraphs 7, 8, and 9 above, the aggregate value of the acquisitions, redemptions and distributions described in such paragraphs will not exceed fifty percent (50%) of the value (without giving effect to such acquisitions, redemptions, and distributions) of the aggregate value of all of the equity securities issued by Target at the Effective Time.
(11)
(a) There is no plan or intention of the Target Shareholders 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 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.
(12) 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.
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 3
(13) 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.
(14) There are no unasserted claims or assessments against Target that are probable of assertion.
(15) 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.
(16) At no time during the five-year period ending at the Effective Time, has the Acquirer directly or indirectly owned any Target Shares.
(17) The fair market value of the Acquirer Shares each Target Shareholder receives in connection with the Acquisition will be approximately equal to the fair market value of the Target Shares it surrenders in exchange therefor.
(18) Pursuant to the Acquisition, Target will transfer to Acquirer, and Acquirer will acquire, at least ninety percent (90%) of the fair market value of the net assets, and at least seventy percent (70%) of the fair market value of the gross assets, that Target held immediately before the Acquisition. For 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, 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.
(19) There is no intercompany indebtedness between Acquirer and Target that was issued or acquired, or will be settled, at a discount.
(20) The sum of (a) the expenses incurred by Target pursuant to the Plan and (b) the Liabilities of Target to be assumed by Acquirer in the Acquisition will not exceed twenty percent (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]
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.
[1] Code § 361.
[2] Code § 354.
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 4
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]
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]
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 it 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]
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]
The Acquisition will be a transfer of substantially all of the Assets of Target, a series of a corporation, to Acquirer, a series of a corporation, in exchange solely for Acquirer Shares (including fractional Acquirer Shares, if any), which will then be distributed to the shareholders of Target pursuant to the liquidation of Target. Therefore, the Acquisition will satisfy the statutory language of Section 368(a)(1)(C) to be treated as a “reorganization.”
Since each of Target and Acquirer 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 Shareholder will receive Acquirer Shares as a result of the Acquisition. Therefore, the Acquisition will satisfy the COI requirement.
[3] Treas. Reg. § 1.368-1(b).
[4] Treas. Reg. § 1.368-1(e)(1)(i).
[5] Id.
[6] Treas. Reg. § 1.368-1(e)(3).
[7] Treas. Reg. § 1.368-1(d)(1)-(3).
[8] Rev. Rul. 87-76, 1987-2 C.B. 84.
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 5
Target and Acquirer each have identical investment objectives to seek long-term growth of capital. Target and Acquirer have identical principal investment strategies investing primarily in domestic equity securities with a focus on undervalued companies. Each of Target and Acquirer invest substantially all of their assets in equity securities.
Based upon the above, we believe that Target and Acquirer are engaged in the same historic business of investing in U.S. domestic equity securities of undervalued companies 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 at least one-third of the assets of Target satisfy the investment objectives, strategies, policies, risks and restrictions of the Acquirer, we believe Acquirer will use the assets 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.[9]
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 Acquirer and Target will each be a “party to a reorganization” within the meaning of Section 368(b) of the Code.
(2) Each Target Shareholder will recognize no gain or loss on such shareholder’s receipt of Acquirer Shares (including any fractional Acquirer Share to which the shareholder may be entitled) in exchange for the shareholder’s Target Shares owned by the Target Shareholders in connection with the Acquisition.
(3) Neither Target nor Acquirer will recognize any gain or loss upon the transfer by Target of all of its Assets to Acquirer solely in exchange for Acquirer Shares (including fractional Acquirer Shares, if any) and the assumption by Acquirer of the Liabilities pursuant to the Plan or upon the distribution of Acquirer Shares to Target Shareholders in exchange for their respective Target Fund 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 Shareholders (including any fractional Acquirer Share to which the shareholder may be entitled) will be the same as the aggregate tax basis of the Target Shares surrendered in exchange therefore decreased by any cash received and increased by any gain recognized on the exchange.
[9] In a series of Private Letter Rulings, the IRS has held that a reorganization of two RICs will satisfy the COBE requirement where the taxpayers made a similar representation. See, e.g., PLR 200818021(May 2, 2008) and PLR 201001015 (Jan. 8, 2010). Although private letter rulings have no precedential effect, they may evidence a pattern of conduct on the part of the IRS. See Rowan Cos., Inc. v. United States, 452 U.S. 247, 261 n. 17 (1981).
AB Variable Products Series Fund, Inc.— AB Value Portfolio
AB Variable Products Series Fund, Inc.— AB Growth and Income Portfolio
April 26, 2019
Page 6
(6) The holding period of Acquirer Shares received in connection with the Acquisition by each of the Target Shareholders (including any fractional Acquirer Share to which the shareholder 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 Target Shareholder 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.
Notwithstanding the above, we express no view with respect to the effect of the transaction 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.
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 | |