As filed with the Securities and Exchange
Commission on August 12, 2008
Registration No. : 333-149286
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
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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
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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 sole purpose of this filing is to file as an exhibit 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 March
17, 2008 (File nos. 333-149286 and 811-5398).
This Post-Effective Registration filing contains the following:
- - Facing Page
- - Part C - Other Information
- - Signatures
- - Exhibit 12
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' 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 Acquisition and Liquidation between AllianceBernstein
U.S Government/High Grade Securities Portfolio and AllianceBernstein
High Yield Portfolio, AllianceBernstein Global Bond Portfolio,
AllianceBernstein Americas Government Income Portfolio and
AllianceBernstein Global Dollar Government Portfolio, each a series of
AllianceBernstein Variable Products Series Fund, Inc. 0 Incorporated
by reference to Appendix F of Registrant's Prospectus filed under Rule
497 (File Nos. 333-149286 and 811-5398), filed with the Securities and
Exchange Commission on March 17, 2008.
(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) 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. 333-149286
and 811-5398), filed with the Securities and Exchange Commission on
February 15, 2008.
(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 to the Registrant's Registration Statement
on Form N-14 (File Nos. 333-149286 and 811-5398), filed with the
Securities and Exchange Commission on February 15, 2008.
(15) Not applicable.
(16) Powers of Attorney for: John H. Dobkin, Michael J. Downey, William H.
Foulk, Jr., D. James Guzy, Nancy P. Jacklin, Marc O. Mayer, Marshall
C. Turner, Jr. and Earl D. Weiner - Incorporated by reference to the
Registrant's Registration Statement on Form N-14 (File Nos. 333-149286
and 811-5398), filed with the Securities and Exchange Commission on
February 15, 2008.
(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 12th day of August, 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 August 12, 2008
2. Principal Financial and
Accounting Officer
/s/ Joseph J. Mantineo Treasurer and
------------------------- Chief Financial
Joseph J. Mantineo Officer
August 12, 2008
3. Majority of the Directors:
--------------------------
John H. Dobkin*
William H. Foulk, Jr.*
Michael Downey*
D. James Guzy*
Nancy P. Jacklin*
Marc O. Mayer*
Marshall C. Turner, Jr.*
Earl D. Weiner*
*By: /s/Andrew L. Gangolf August 12, 2008
--------------------
Andrew L. Gangolf
(Attorney-in-fact)
INDEX TO EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
(12) Tax Opinion and Consent of Seward & Kissel LLP
SK 00250 0292 905550