As filed with the Securities and Exchange Commission on February 28, 2007
Securities Act File No. 333-137559
Investment Company Act File No. 811-5207
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM N-14
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Pre-Effective Amendment No. [__]
Post-Effective Amendment No. 1
(Check appropriate box or boxes)
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ALLIANCEBERNSTEIN INCOME FUND, INC.
(formerly named ACM Income Fund, Inc.)
(Exact Name of Registrant as Specified in Charter)
(800) 221-5672
(Area Code and Telephone Number)
1345 Avenue of the Americas, New York, New York 10105
(Address of Principal Executive Office) (Zip Code)
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EMILIE D.WRAPP
AllianceBernstein L.P.
1345 Avenue of the Americas
New York, New York 10105
(Name and Address of Agent for Service)
Copies of communications
to: Kathleen K. Clarke
Seward & Kissel LLP
1200 G Street, N.W.
Washington, D.C. 20005
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EXPLANATORY NOTE
The Joint Proxy Statement/Prospectus and the Statement of Additional
Information in the form filed on October 31, 2006 pursuant to Rule 497 of the
General Rules and Regulations under the Securities Act of 1933, as amended, are
incorporated herein by reference.
This amendment is being filed for the sole purpose of filing, as Exhibit 12
to this Registration Statement, the tax opinion of Seward & Kissel LLP, tax
counsel for the Registrant.
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 Articles of Incorporation, filed as Exhibit (1) in response to Item
16, Article IX of the Registrant's Amended and Restated By-Laws filed as Exhibit
(2) in response to Item 16, Section 4 of the Registrant's Advisory Agreement
filed as (6) in response to Item 16, all as set forth below.
Section 2-418 of the Maryland General Corporation Law reads as follows:
"2-418 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.--
(a) In this section the following words have the meaning
indicated.
(1) "Director" means any person who is or was a director of
a corporation and any person who, while a director of a
corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other
enterprise, or employee benefit plan.
(2) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger,
consolidation, or other transaction in which the
predecessor's existence ceased upon consummation of the
transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the
office of director in the corporation; and
(ii) When used with respect to a person other
than a director as contemplated in
subsection (j), the elective or appointive
office in the corporation held by the
officer, or the employment or agency
relationship undertaken by the employee or
agent in behalf of the corporation.
(iii) "Official capacity" does not include service
for any other foreign or domestic
corporation or any partnership, joint
venture, trust, other enterprise, or
employee benefit plan.
(5) "Party" includes a person who was, is, or is threatened
to be made a named defendant or respondent in a
proceeding.
(6) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative, or investigative.
(b) (1) A corporation may indemnify any director made a party
to any proceeding by reason of service in that capacity
unless it is established that:
(i) The act or omission of the director was
material to the matter giving rise to
the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and
deliberate dishonesty; or
(ii) The director actually received an
improper personal benefit in money,
property, or services; or
(iii) In the case of any criminal proceeding,
the director had reasonable cause to
believe that the act or omission was
unlawful.
(2) (i) Indemnification may be against
judgments, penalties, fines,
settlements, and reasonable expenses
actually incurred by the director in
connection with the proceeding.
(ii) However, if the proceeding was one by or
in the right of the corporation,
indemnification may not be made in
respect of any proceeding in which the
director shall have been adjudged to be
liable to the corporation.
(3) (i) The termination of any proceeding by
judgment, order or settlement does not
create a presumption that the director
did not meet the requisite standard of
conduct set forth in this subsection.
(ii) The termination of any proceeding by
conviction, or a plea of nolo contendere
or its equivalent, or an entry of an
order of probation prior to judgment,
creates a rebuttable presumption that
the director did not meet that standard
of conduct.
(4) A corporation may not indemnify a director or advance
expenses under this section for a proceeding brought by
that director against the corporation, except:
(i) For a proceeding brought to enforce
indemnification under this section; or
(ii) If the charter or bylaws of the
corporation, a resolution of the board
of directors of the corporation, or an
agreement approved by the board of
directors of the corporation to which
the corporation is a party expressly
provide otherwise.
(c) A director may not be indemnified under subsection (b) of
this section in respect of any proceeding charging improper
personal benefit to the director, whether or not involving
action in the director's official capacity, in which the
director was adjudged to be liable on the basis that
personal benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the merits or
otherwise, in the defense of any proceeding referred to
in subsection (b) of this section shall be indemnified
against reasonable expenses incurred by the director in
connection with the proceeding.
(2) A court of appropriate jurisdiction upon application of
a director and such notice as the court shall require,
may order indemnification in the following
circumstances:
(i) If it determines a director is entitled
to reimbursement under paragraph (1) of
this subsection, the court shall order
indemnification, in which case the
director shall be entitled to recover
the expenses of securing such
reimbursement; or
(ii) If it determines that the director is
fairly and reasonably entitled to
indemnification in view of all the
relevant circumstances, whether or not
the director has met the standards of
conduct set forth in subsection (b) of
this section or has been adjudged liable
under the circumstances described in
subsection (c) of this section, the
court may order such indemnification as
the court shall deem proper. However,
indemnification with respect to any
proceeding by or in the right of the
corporation or in which liability shall
have been adjudged in the circumstances
described in subsection (c) shall be
limited to expenses.
(3) A court of appropriate jurisdiction may be the same
court in which the proceeding involving the director's
liability took place.
(e) (1) Indemnification under subsection (b) of this section
may not be made by the corporation unless authorized
for a specific proceeding after a determination has
been made that indemnification of the director is
permissible in the circumstances because the director
has met the standard of conduct set forth in subsection
(b) of this section.
(2) Such determination shall be made:
(i) By the board of directors by a majority
vote of a quorum consisting of directors
not, at the time, parties to the
proceeding, or, if such a quorum cannot
be obtained, then by a majority vote of
a committee of the board consisting
solely of two or more directors not, at
the time, parties to such proceeding and
who were duly designated to act in the
matter by a majority vote of the full
board in which the designated directors
who are parties may participate;
(ii) By special legal counsel selected by the
board or a committee of the board by
vote as set forth in subparagraph (i) of
this paragraph, or, if the requisite
quorum of the full board cannot be
obtained therefor and the committee
cannot be established, by a majority
vote of the full board in which
directors who are parties may
participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and determination as
to reasonableness of expenses shall be made in the same
manner as the determination that indemnification is
permissible. However, if the determination that
indemnification is permissible is made by special legal
counsel, authorization of indemnification and
determination as to reasonableness of expenses shall be
made in the manner specified in subparagraph (ii) of
paragraph (2) of this subsection for selection of such
counsel.
(4) Shares held by directors who are parties to the
proceeding may not be voted on the subject matter under
this subsection.
(f) (1) Reasonable expenses incurred by a director who is a
party to a proceeding may be paid or reimbursed by the
corporation in advance of the final disposition of the
proceeding, upon receipt by the corporation of:
(i) A written affirmation by the director of
the director's good faith belief that
the standard of conduct necessary for
indemnification by the corporation as
authorized in this section has been met;
and
(ii) A written undertaking by or on behalf of
the director to repay the amount if it
shall ultimately be determined that the
standard of conduct has not been met.
(2) The undertaking required by subparagraph (ii) of
paragraph (1) of this subsection shall be an unlimited
general obligation of the director but need not be
secured and may be accepted without reference to
financial ability to make the repayment.
(3) Payments under this subsection shall be made as
provided by the charter, bylaws, or contract or as
specified in subsection (e) of this section.
(g) The indemnification and advancement of expenses provided or
authorized by this section may not be deemed exclusive of
any other rights, by indemnification or otherwise, to which
a director may be entitled under the charter, the bylaws, a
resolution of stockholders or directors, an agreement or
otherwise, both as to action in an official capacity and as
to action in another capacity while holding such office.
(h) This section does not limit the corporation's power to pay
or reimburse expenses incurred by a director in connection
with an appearance as a witness in a proceeding at a time
when the director has not been made a named defendant or
respondent in the proceeding.
(i) For purposes of this section:
(1) The corporation shall be deemed to have requested a
director to serve an employee benefit plan where the
performance of the director's duties to the corporation
also imposes duties on, or otherwise involves services
by, the director to the plan or participants or
beneficiaries of the plan:
(2) Excise taxes assessed on a director with respect to an
employee benefit plan pursuant to applicable law shall
be deemed fines; and
(3) Action taken or omitted by the director with respect to
an employee benefit plan in the performance of the
director's duties for a purpose reasonably believed by
the director to be in the interest of the participants
and beneficiaries of the plan shall be deemed to be for
a purpose which is not opposed to the best interests of
the corporation.
(j) Unless limited by the charter:
(1) An officer of the corporation shall be indemnified as
and to the extent provided in subsection (d) of this
section for a director and shall be entitled, to the
same extent as a director, to seek indemnification
pursuant to the provisions of subsection (d);
(2) A corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation to the
same extent that it may indemnify directors under this
section; and
(3) A corporation, in addition, may indemnify and advance
expenses to an officer, employee, or agent who is not a
director to such further extent, consistent with law,
as may be provided by its charter, bylaws, general or
specific action of its board of directors or contract.
(k) (1) A corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or who, while a
director, officer, employee, or agent of the
corporation, is or was serving at the request, of the
corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other
enterprise, or employee benefit plan against any
liability asserted against and incurred by such person
in any such capacity or arising out of such person's
position, whether or not the corporation would have the
power to indemnify against liability under the
provisions of this section.
(2) A corporation may provide similar protection, including
a trust fund, letter of credit, or surety bond, not
inconsistent with this section.
(3) The insurance or similar protection may be provided by
a subsidiary or an affiliate of the corporation.
(l) Any indemnification of, or advance of expenses to, a
director in accordance with this section, if arising out of
a proceeding by or in the right of the corporation, shall be
reported in writing to the stockholders with the notice of
the next stockholders' meeting or prior to the meeting."
Article EIGHTH of the Corporation's Charter reads as follows
"(1) To the maximum extent permitted by the Maryland General Corporation
Law as from time to time amended, the Corporation shall indemnify its currently
acting and its former directors and officers and those persons who, at the
request of the Corporation, serve or have served another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan in
one or more of such capacities against all expenses, liabilities and losses
(including attorney's fees, judgments, fines and amounts paid in settlement)
reasonably incurred or suffered by him in connection with being such a director,
officer or other person serving as described above; provided that nothing herein
shall protect any director or officer of the Corporation against, any liability
to the Corporation or to its security holders to which he would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office. Such
right of indemnification shall be a contract right which may be enforced in any
manner desired by such person. Such right of indemnification shall not be
exclusive of any other right which such directors, officers or other persons may
have or hereafter acquire. Any repeal or modification of this Article EIGHTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification based on events, omissions or proceedings prior
thereto;
(2) A director or officer of the Corporation, in his capacity as such
director or officer, shall not be personally liable to the Corporation or its
stockholders for monetary damages except for liability (i) to the extent that it
is proved that the person actually received an improper benefit or profit in
money, property or services, for the amount of the benefit or profit in money,
property or services actually received, or (ii) to the extent that a judgment or
other final adjudication adverse to the person is entered in a proceeding based
on a finding in the proceeding that the person's action, or failure to act, was
the result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding; provided that nothing herein shall protect
any director or officer of the Corporation against any liability to the
Corporation or to its security holders to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office. If the Maryland General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of a director or officer of the Corporation,
then the liability of the director or officer of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Maryland General
Corporation Law, as so amended. Any repeal or modification of this Article
EIGHTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director or officer of the Corporation existing at the
time of such repeal or modification based on events or omissions prior thereto."
Article IX of the Corporation's Bylaws reads as follows:
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 Adviser and its employees are also indemnified by the Registrant under
Section 4 of the Registrant's Advisory Agreement:
4. We [the Registrant] shall expect of you, and you will give us the benefit or,
your best judgment and efforts in rendering these services to us, and we agree
as an inducement to your undertaking these services that you shall not be liable
hereunder for any mistake of judgment or in any event whatsoever, except for
lack of good faith, provided that nothing herein shall be deemed to protect, or
purport to protect, you against any liability to us or to our security holders
to which you would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of your duties hereunder, or by
reason of your reckless disregard of your obligations and duties hereunder.
Item 16 Exhibits
(1)(a) Articles of Incorporation of the Registrant (1)
(1)(b) Articles of Amendment to the Articles of Incorporation
dated August 14, 1987 (1)
(1)(c) Articles of Amendment to the Articles of Incorporation
dated April 14, 1989 (1)
(2)(a) Amended and Restated Bylaws (4)
(3) Not applicable
(4) Plan of Acquisition and Liquidation.(3)
(5) Not applicable
(6)(a) Investment Advisory Agreement between the Registrant and
AllianceBernstein L.P. (formerly Alliance Capital Management
L.P.) (1)
(6)(b) Administration Agreement between the Registrant and Mitchell
Hutchins Asset Management, Inc. (1)
(7) Not applicable
(8) Not applicable
(9)(a) Custodian Agreement between the Registrant and State Street
Bank and Trust Company (1)
(9)(b) Amendment to Custodian Agreement (1)
(9)(c) Amendment to Custodian Agreement (2)
(9)(d) Amendment to Custodian Agreement (2)
(10) Not applicable
(11) Opinion of Seward & Kissel LLP as to the legality of the
securities being registered (5)
(12) Opinion of Seward & Kissel LLP as to tax consequences (6)
(13)(a) Transfer Agency Agreement between the Registrant and State
Street Bank and Trust Company (1)
(13)(b) Shareholder Inquiry Agency Agreement with AllianceBernstein
Investor Services, Inc., (formerly, Alliance Fund Services,
Inc.) (2)
(13)(c) Accounting Agency Agreement between the Registrant and State
Street Bank and Trust Company (7)
(13)(d) Dividend Reinvestment and Cash Purchase Plan (1)
(14) Consent of Ernst & Young LLP, independent auditors for ACM
Government Opportunity Fund, Inc. and the Registrant (5)
(15) Not applicable
(16) Powers of Attorney (5)
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1. Incorporated by reference from Registrant's Registration Statement on Form
N-14 (File Nos. 333-43514 and 811-5207) filed on August 11, 2000 and as updated
in Registrant's 497 filing filed with the SEC on September 19, 2000.
2. Incorporated by reference from Registrant's Registration Statement on Form
N-14 (File Nos. 333-43514 and 811-5207) filed on August 11, 2000.
3. Incorporated by reference from Appendix E to Part A of Registrant's
Registration Statement of Form N-14 (File Nos. 333-137559 and 811-5207) filed on
September 22, 2006.
4. Incorporated by reference to Exhibit 77Q1 from Registrant's Form N-SAR filing
(File No. 811-5207) filed on August 29, 2006.
5. Incorporated by reference from Registrant's Registration Statement of Form
N-14 (File Nos. 333-137559 and 811-5207) filed on September 22, 2006.
6. Filed herewith.
7. See Exhibit (9)(a) - Custodian Agreement.
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) under the Securities Act of 1933 (17 CFR
230.145c), 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 has duly caused this Amendment to the Registration Statement on Form
N-14 to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of New York, on the 28th day of February, 2007.
ALLIANCEBERNSTEIN INCOME FUND, INC.
(formerly named ACM Income Fund, Inc.)
By: Marc O. Mayer*
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Marc O. Mayer
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the 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 February 28, 2007
Executive Officer
2. Principal Financial and
Accounting Officer:
/s/ Joseph J. Mantineo Treasurer and February 28, 2007
---------------------- Chief Financial Officer
Joseph J. Mantineo
3. Majority of Directors
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.*
*By:/s/ Andrew L. Gangolf February 28, 2007
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Andrew L. Gangolf
(Attorney-in-fact)
Index to Exhibits
-----------------
Exhibit No. Description of Exhibits
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(12) Tax Opinion of Seward & Kissel LLP
SK 00250 0209 749999