As filed with the Securities and Exchange
Commission on October 15, 2008
Registration No: 333-151954
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 July
30, 2008 (File Nos. 033-18647 and 811-05398).
This Post-Effective Amendment consists of the following:
(1) Facing sheet of Registration Statement.
(2) Part C to Registration Statement (including signature page).
(3) Exhibit 12 to Item 16 of the 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 (File 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) (a) 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.
(b) Articles of Amendment of Articles of Incorporation of the
Registrant, dated January 9, 2008 and filed January 16, 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 811-5398), filed with the Securities
and Exchange Commission on March 3, 2008.
(c) Articles of Amendment of 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 811-5398), filed with the Securities
and Exchange Commission on April 28, 2008.
(d) Articles of Amendment of 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 811-5398), filed with the Securities
and Exchange Commission on April 28, 2008.
(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
Balanced Wealth Strategy Portfolio and AllianceBernstein Balanced
Shares Portfolio, each a series of AllianceBernstein Variable Products
Series Fund, Inc. - Incorporated by reference to Appendix F to the
Registrant's Prospectus filed under Rule 497 (File Nos. 033-18647 and
811-05398), filed with the Securities and Exchange Commission on July
30, 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) Form of Opinion and Consent of Seward & Kissel LLP regarding the
legality of securities being registered - Incorporated by reference to
Exhibit 11 to the Registrant's Registration Statement on Form N-14
(File Nos. 333-151954 and 811-05398), filed with the Securities and
Exchange Commission on June 26, 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 Exhibit 14 to the Registrant's
Registration Statement on Form N-14 (File Nos. 333-151954 and
811-05398), filed with the Securities and Exchange Commission on June
26, 2008.
(15) Not applicable.
(16) Powers of Attorney for: David H. Dievler, 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 Exhibit 16 of Registrant's Registration on Form N-14
(File No. 333-149286), 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
amended, the Registrant certifies that it meets all of the requirements for
filing on Form N-14 and has duly caused this Post - Effective Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned, duly
authorized, in the City of New York and State of New York, on the 15th day of
October, 2008.
ALLIANCEBERNSTEIN VARIABLE
PRODUCTS SERIES FUND, INC.
By: /s/ Robert M. Keith
-------------------
Robert M. Keith
President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this 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
/s/ Robert M. Keith President and Chief
------------------- Executive Officer October 15, 2008
Robert M. Keith
2. Principal Financial and
Accounting Officer
/s/ Joseph J. Mantineo Treasurer and
---------------------- Chief Financial
Joseph J. Mantineo Officer October 15, 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 October 15, 2008
---------------------
Andrew L. Gangolf
(Attorney-in-fact)
INDEX TO EXHIBITS
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Exhibit No. Description of Exhibits
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(12) Tax Opinion and Consent of Seward & Kissel LLP
SK 00250 0456 927252