AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made as of the 4th day of May,
1999, by and between Pioneer Bond Fund, a Massachusetts business trust (the
"Current Trust"), and Pioneer Bond Fund, a business trust duly formed under the
laws of the State of Delaware (the "Successor Trust").
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368 (a)(1) of the U.S. Internal Revenue Code of
1986, as amended (the "Code"), and is intended to effect the conversion of the
Current Trust into a Delaware business trust.
In consideration of the premises and of the covenants and agreements
hereinafter set forth the parties hereto covenant and agree as follows.
1. TRANSFER OF ASSETS OF THE CURRENT TRUST IN EXCHANGE FOR ASSUMPTION OF
LIABILITIES AND ISSUANCE OF SHARES OF THE SUCCESSOR TRUST; DISSOLUTION OF
THE CURRENT TRUST
1.1 Subject to the terms and conditions set forth herein and on the basis
of the representations and warranties contained herein, the Current Trust agrees
to transfer all of its assets set forth in paragraph 1.2 and assign and transfer
all of its liabilities to the Successor Trust established solely for the purpose
of acquiring all of the assets and assuming all of the liabilities of the
Current Trust. As of the date of this Agreement, the Successor Trust has not
issued any shares of beneficial interest or commenced operations. The Successor
Trust agrees that in exchange for all of the assets of the Current Trust (1) the
Successor Trust shall assume all of the liabilities of the Current Trust,
whether contingent or otherwise, then existing and (2) the Successor Trust shall
deliver to the Current Trust the number of full and fractional shares of each
Class of the Successor Trust (the "Successor Trust Shares") equal to the number
of each class of Current Trust Shares then outstanding, the value of the
Successor Trust Shares collectively to be equal to the value of the assets of
the Current Trust transferred to, less the liabilities of Current Trust assumed
by, the Successor Trust (the "Net Assets"), as described in paragraph 3.1 on the
Closing Date provided for in paragraph 3.1. Such transactions shall take place
at the Closing provided for in paragraph 3.1.
1.2 The assets of the Current Trust to be acquired by the Successor Trust
shall include, without limitation, all cash, cash equivalents, securities,
receivables (including interest and dividends receivable), any claims or rights
of action or rights to register shares under applicable securities laws, any
books or records of the Current Trust and other property owned by the Current
Trust and any deferred or prepaid expenses shown as assets on the books of the
Current Trust on the Closing Date provided for in paragraph 3.1.
1.3 Immediately upon delivery to the Current Trust of Successor Trust
Shares of the Successor Trust, any duly authorized officer of the Current Trust
as the then sole shareholder of the Successor Trust shall (i) elect as Trustees
of the Successor Trust the persons
27
who currently serve as Trustees of the Current Trust; (ii) ratify the selection
of the independent accountants; (iii) approve a management contract for the
Successor Trust with Pioneer Investments in the form most recently approved for
the Current Trust; and (iv) adopt the investment objectives, investment policies
and investment restrictions of the Current Trust.
1.4 As provided in paragraph 3.4, on the Closing Date, the Current Trust
will distribute in liquidation to its shareholders of record ("Current Trust
Shareholders"), determined as of the close of business on the Closing Date, the
Successor Trust Shares of each class received from the Successor Trust pro rata
in proportion to their respective shares of beneficial interest of such class in
the Current Trust ("Current Trust Shares"), in exchange for such Current Trust
Shares. Such distribution will be accomplished by the transfer of the Successor
Trust Shares then credited to the account of the Current Trust on the share
records of the Successor Trust to open accounts on those records in the names of
such Current Trust Shareholders and representing the respective pro rata number
of the Successor Trust Shares of each class received from the Successor Trust
due to the Current Trust Shareholders. The Successor Trust shall not issue
certificates representing Successor Trust Shares in connection with such
distributions and, if applicable, in exchange for the outstanding certificates
representing Acquired Fund Shares, as described in paragraph 1.8. Fractional
Successor Trust Shares shall be rounded to the third place after the decimal
point.
1.5 As soon as practicable after the distribution of the Successor Trust
Shares as set forth in Section 1.4, the Current Trust shall be terminated and
any such further actions shall be taken in connection therewith as are required
by applicable law.
1.6 Ownership of the Successor Trust Shares by each Successor Trust
Shareholder shall be maintained separately on the books of Pioneering Services
Corporation as the shareholder services and transfer agent for the Successor
Trust.
1.7 Any transfer taxes payable upon issuance of Successor Trust Shares in a
name other than the registered holder of the Current Trust Shares on the books
of the Current Trust as of that time shall be paid by the person to whom such
Successor Trust Shares are to be distributed as a condition of such transfer.
1.8 The Successor Trust shall record the net asset value of all outstanding
Current Trust certificated shares in its books and records as of the Closing
Date, in accordance with paragraph 2.2, and daily thereafter, in accordance with
the Successor Trust's procedures for determining net asset value per share. The
Successor Trust may honor certificates representing Current Trust shares at
their net asset value as determined only on the books and records of the
Successor Trust, and subject to the Successor Trust's normal requirements for
redeeming or transferring shares evidenced by certificates. The Current Trust
Shareholders need not surrender such certificates or deliver an affidavit with
respect to lost certificates, after the Closing. Any Current Trust certificate
which remains outstanding on the Closing Date shall be deemed to be cancelled,
shall no longer evidence ownership of shares of beneficial interest of the
Current Trust and shall not evidence ownership of the Successor Trust Shares.
28
2. VALUATION
2.1 The value of the Net Assets of the Current Trust to be acquired
hereunder by the Successor Trust shall be the net asset value computed as of the
valuation time provided in the then current prospectus of the Current Trust on
the Closing Date using the valuation procedures set forth in the then current
prospectus or statement of additional information.
2.2 The value of full and fractional Successor Trust Shares of the
Successor Trust to be issued in exchange for the Net Assets of each of the
Current Trust shall be equal to the value of such Net Assets on the Closing
Date, and the number of such Successor Trust Shares of each class to be issued
by the Successor Trust shall equal the number of full and fractional Current
Trust Shares of each class of the Current Trust on the Closing Date.
2.3 All computations of value shall be made by Pioneering Services
Corporation.
3. CLOSING AND CLOSING DATE
3.1 The transfer of the assets of the Current Trust in exchange for the
assumption by the Successor Trust of the liabilities of the Current Trust and
the issuance of Successor Trust Shares to the Current Trust, as described above,
together with related acts necessary to consummate such acts (the "Closing"),
shall occur at the offices of Xxxx and Xxxx LLP at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 on May 17, 1999 ("Closing Date"), or at such other place or
date on or prior to December 31, 1999 as the parties may agree in writing. All
acts taking place at the Closing shall be deemed to take place simultaneously as
of the last daily determination of the net asset value of the Current Trust or
at such other time and or place as the parties may agree.
3.2 In the event that on the Closing Date (a) the New York Stock Exchange
is closed to trading or trading thereon is restricted or (b) trading or
reporting of trading on said Exchange or in any market in which portfolio
securities of the Current Trust are traded is disrupted so that accurate
appraisal of the value of the Net Assets of the Current Trust is impracticable,
the Closing shall be postponed until the first business day upon which trading
shall have been fully resumed and reporting shall have been restored.
3.3 The Current Trust shall deliver at the Closing a certificate or
separate certificates of an authorized officer stating that it has notified the
Custodian, as custodian for the Current Trust and the Successor Trust, of the
conversion of the Current Trust to the Successor Trust.
3.4 Pioneering Services Corporation, as shareholder services and transfer
agent for the Current Trust, shall deliver at the Closing certificates as to the
conversion on its books and records of the accounts of the shareholders of the
Current Trust to accounts as holders of shares of the Successor Trust. The
Successor Trust shall issue and deliver to the Current Trust a confirmation
evidencing the shares of Successor Trust to be credited on the Closing Date or
provide evidence satisfactory to the Current Trust that such shares of the
Successor Trust have been credited to the account of the Current Trust on the
books of the Successor Trust. At the Closing each party shall deliver to the
other such bills of sale,
29
checks, assignments, share certificates, receipts or other documents as such
other party or its counsel may reasonably request.
3.5 Portfolio securities that are not held in book-entry form in the name
of the Custodian as record holder for the Current Trust shall be presented by
the Current Trust to the Custodian for examination no later than five business
days preceding the Closing Date. Portfolio securities which are not held in
book-entry form shall be delivered by the Current Trust to the Custodian for the
account of the Successor Trust on the Closing Date, duly endorsed in proper form
for transfer, in such condition as to constitute good delivery thereof in
accordance with the custom of brokers, and shall be accompanied by all necessary
federal and state stock transfer stamps or a check for the appropriate purchase
price thereof. Portfolio securities held of record by the Custodian in
book-entry form on behalf of the Current Trust shall be delivered to the
Successor Trust by the Custodian by recording the transfer of beneficial
ownership thereof on its records. The cash of the Current Trust to be delivered
shall be in the form of currency or by the Custodian crediting the Successor
Trust's account maintained with the Custodian with immediately available funds.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Current Trust represents and warrants as follows:
4.1.A. The Current Trust is a business trust duly authorized to exist under
the laws of The Commonwealth of Massachusetts and has the power to own all of
its properties and assets and, subject to approval by the shareholders of the
Current Trust, to perform its obligations under this Agreement. The Current
Trust is not required to qualify to do business in any jurisdiction in which it
is not so qualified or where failure to qualify would not subject it to any
material liability or disability. The Current Trust has all necessary federal,
state and local authorizations to own all of its properties and assets and to
carry on its business as now being conducted;
4.1.B. The Current Trust is a registered investment company classified as a
management company of the open-end diversified type and its registration with
the Securities and Exchange Commission (the "SEC") as an investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), is in
full force and effect;
4.1.C. The Current Trust is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any provision of
its Declaration of Trust or By-laws, or any agreement, indenture, instrument,
contract, lease or other undertaking to which the Current Trust is a party or by
which the Current Trust is bound;
4.1.D. The Current Trust has no material contracts or other commitments
(other than this Agreement or agreements for the purchase of securities entered
into in the ordinary course of business and consistent with its obligations
under this Agreement) that will not be terminated without liability to the
Current Trust on or prior to the Closing Date;
4.1.E. No material litigation or administrative proceeding or investigation
of or before any court or governmental body presently is pending or threatened
against the Current
30
Trust or any of its properties or assets. The Current Trust knows of no facts
that might form the basis for the institution of such proceedings and the
Current Trust is not a party to, or subject to, the provisions of any order,
decree or judgment of any court or governmental body that materially and
adversely affects its business or its ability to consummate the transactions
herein contemplated;
4.1.F. At the date hereof and at the Closing Date, all federal, state and
other tax returns and reports, including information returns and payee
statements, of the Current Trust required by law to have been filed or furnished
by such dates shall have been filed or furnished and all federal, state and
other taxes, interest and penalties shall have been paid so far as due or
provision shall have been made for the payment thereof and no such return is
currently under audit and no assessment has been asserted with respect to any of
such returns or reports;
4.1.G. The Current Trust has elected that it be treated as a regulated
investment company under Subchapter M of the Code, has qualified as such for
each taxable year since its inception, and will qualify as such as of the
Closing Date;
4.1.H. The authorized capital of the Current Trust consists of an unlimited
number of shares of beneficial interest, no par value, divided into three
classes (Class A, Class B and Class C) of one series. All issued and outstanding
shares of beneficial interest of the Current Trust are, and at the Closing Date
will be, duly and validly issued and outstanding, fully paid and nonassessable.
The Current Trust does not have outstanding any options, warrants or other
rights to subscribe for or purchase any of its shares of beneficial interest,
nor is there outstanding any security convertible into any of its shares of
beneficial interest;
4.1.I. The information to be furnished by the Current Trust for use in
applications for orders, registration statements, proxy materials and other
documents which may be necessary in connection with the transactions
contemplated hereby shall be accurate and complete and shall comply in all
material respects with federal securities and other laws and regulations
thereunder applicable thereto;
4.1.J. All of the issued and outstanding Current Trust Shares will at the
time of the Closing be held by the persons and in the amounts as, on behalf of
the Current Trust, certified in accordance with the provisions of paragraph 3.4;
4.1.K. At the Closing Date, the Current Trust will have good and marketable
title to the assets to be transferred to the Successor Trust pursuant to
paragraph 1.1, and full right, power and authority to sell, assign, transfer and
deliver such assets hereunder, and upon delivery and in payment for such assets,
the Successor Trust will acquire good and marketable title thereto subject to no
restrictions on the full transfer thereof, including such restrictions as might
arise under the Securities Act of 1933, as amended (the "1933 Act), except as
otherwise disclosed in writing and accepted by the Successor Trust;
4.1.L. The execution, delivery and performance of this Agreement will have
been duly authorized prior to the Closing Date by all necessary action on the
part of the Current Trust and this Agreement constitutes a valid and binding
obligation of the Current Trust
31
enforceable in accordance with its terms, subject to the approval of the
Current Trust's shareholders;
4.1.M. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Current Trust of
the transactions contemplated herein, except such as shall have been obtained
prior to the Closing Date.
4.2 The Successor Trust represents and warrants as follows:
4.2.A. The Successor Trust is a business trust duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the power to own all of its properties and assets and to perform its obligations
under this Agreement; the Successor Trust is not required to qualify to do
business in any jurisdiction in which it is not so qualified or where failure to
qualify would not subject it to any material liability or disability; the
Successor Trust has all necessary federal, state and local authorizations to own
all of its properties and assets and to carry on its business as now being
conducted; that as of the date hereof and as of the Closing Date, the Successor
Trust consists of one duly established and designated series;
4.2.B. The Successor Trust is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any provision of
the Certificate of Trust, Agreement and Declaration of Trust or By-laws of the
Successor Trust or any agreement, indenture, instrument, contract, lease or
other undertaking to which the Successor Trust is a party or by which the
Successor Trust is bound;
4.2.C. No material litigation or administrative proceeding or investigation
of or before any court or governmental body is presently pending or threatened
against the Successor Trust or any of its properties or assets. The Successor
Trust knows of no facts that might form the basis for the institution of such
proceedings, and the Successor Trust is not a party to, or subject to, the
provisions of any order, decree or judgment of any court or governmental body
that materially and adversely affects its business or its ability to consummate
the transactions herein contemplated;
4.2.D. The Successor Trust will qualify as a regulated investment company
under Subchapter M of the Code for the taxable year in which the Closing occurs
and to continue to qualify as such for each taxable year;
4.2.E. Prior to the Closing Date, there shall be no issued and outstanding
Successor Trust Shares or any other securities of the Successor Trust; Successor
Trust Shares issued in connection with the transactions contemplated herein will
be duly and validly issued and outstanding and fully paid and non-assessable;
4.2.F. The execution, delivery and performance of this Agreement has been
duly authorized by all necessary action on the part of the Successor Trust, and
this Agreement constitutes a valid and binding obligation of the Successor Trust
enforceable against the Successor Trust in accordance with its terms;
4.2.G. The information to be furnished by the Successor Trust for use in
applications for orders, registration statements, proxy materials and other
documents which may be
32
necessary in connection with the transactions contemplated hereby shall be
accurate and complete and shall comply in all material respects with Federal
securities and other laws and regulations applicable thereto;
4.2.H. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Successor Trust
of the transactions contemplated herein, except such as shall have been obtained
prior to the Closing Date.
5. COVENANTS OF THE CURRENT TRUST AND THE SUCCESSOR TRUST
5.1 The Current Trust covenants that the Successor Trust Shares are not
being acquired for the purpose of making any distribution thereof, other than in
accordance with the terms of this Agreement.
5.2 The Current Trust covenants that it will assist the Successor Trust in
obtaining such information as the Successor Trust may reasonably request
concerning the beneficial ownership of Current Trust Shares.
5.3 The Current Trust will, from time to time, as and when requested by the
Successor Trust execute and deliver, or cause to be executed and delivered, all
such assignments and other instruments, and will take or cause to be taken such
further action, as the Successor Trust may deem necessary or desirable in order
to vest in, and confirm to, the Successor Trust, title to, and possession of,
all the assets of the Current Trust to be sold, assigned, transferred and
delivered to the Successor Trust hereunder and otherwise to carry out the intent
and purpose of this Agreement.
5.4 The Successor Trust will, from time to time, as and when requested by
the Current Trust, execute and deliver or cause to be executed and delivered all
such assignments and other instruments, and will take or cause to be taken such
further action, as the Current Trust may deem necessary or desirable in order to
vest in, and confirm to, the Current Trust, title to, and possession of, the
Successor Trust Shares issued, sold, assigned, transferred and delivered
hereunder and otherwise to carry out the intent and purpose of this Agreement.
5.5 The Successor Trust shall use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such
state securities laws as it may deem appropriate in order to operate after the
Closing Date.
5.6 Subject to the provisions of this Agreement, the Successor Trust and
the Current Trust each will take, or cause to be taken, all action and will do
or cause to be done all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.7 As promptly as practicable, but in any event within 60 days after the
Closing Date, the Current Trust shall furnish to the Successor Trust, in such
form as is reasonably satisfactory to Successor Trust, a statement of the
earnings and profits of the Current Trust for federal income tax purposes, and
of any capital loss carryovers and other items that
33
will be carried over to the Successor Trust as a result of Section 381 of the
Code, and which statement will be certified by the President or Treasurer of
Current Trust.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST
The obligations of the Current Trust to consummate the transactions
provided for herein shall be subject to the performance by the Successor Trust
of all the obligations to be performed by the Successor Trust hereunder on or
before the Closing Date and, in addition thereto, to the following further
conditions:
6.1 All representations and warranties of the Successor Trust contained in
this Agreement shall be true and correct in all material respects as of the date
hereof and except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date, with the same force and effect as if
made on and as of the Closing Date, and
6.2 The Successor Trust shall have delivered on the Closing Date to the
Current Trust a certificate executed in Successor Trust's name by its President
or Executive Vice President, in form and substance satisfactory to the Current
Trust, dated as of the Closing Date, to the effect that the representations and
warranties of the Successor Trust made in this Agreement are true and correct at
and as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as the Current
Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Current
Trust.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SUCCESSOR TRUST
The obligations of the Successor Trust to consummate the transactions
provided for herein shall be subject to the performance by the Current Trust of
all the obligations to be performed hereunder on or before the Closing Date and,
in addition thereto, to the following further conditions:
7.1 All representations and warranties of the Current Trust contained in
this Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date, with the same force and effect as if
made on and as of the Closing Date;
7.2 The Current Trust shall have delivered to the Successor Trust on the
Closing Date a statement of its assets and liabilities, prepared in accordance
with generally accepted accounting principles consistently applied, together
with a certificate of the Treasurer or Assistant Treasurer of the Current Trust
as to the portfolio securities of the Current Trust and the federal income tax
basis and holding period for each such portfolio security as of the Closing
Date; and
34
7.3 The Current Trust shall have delivered to the Successor Trust on the
Closing Date a certificate executed in the name of the Current Trust by its
President or Executive Vice President, in form and substance satisfactory to the
Successor Trust, dated as of the Closing Date, to the effect that the
representations and warranties made in this Agreement are true and correct at
and as of the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement, and as to such other matters as the Successor
Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Successor
Trust.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST AND THE
SUCCESSOR TRUST
The obligations of the Current Trust and the Successor Trust are subject to
the further conditions that on or before the Closing Date:
8.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the shareholders of the Current Trust in
accordance with applicable law;
8.2 On the Closing Date, no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with,
the transactions contemplated hereby;
8.3 All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those of
the Commission and of state securities authorities) deemed necessary by the
Successor Trust or the Current Trust to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of the
Successor Trust or the Current Trust, provided that either party hereto may for
itself waive any of such conditions;
8.4 The President or Executive Vice President of the Successor Trust shall
have delivered a certificate to the Current Trust on the Closing Date certifying
that the Successor Trust has taken all necessary action so that it shall be a
registered open-end investment company under the 0000 Xxx.
8.5 The Current Trust and the Successor Trust shall have received on or
before the Closing Date an opinion of Xxxx and Xxxx LLP satisfactory to the
Current Trust and the Successor Trust, substantially to the effect that for
federal income tax purposes:
8.5.A. The acquisition of all of the assets of the Current Trust by the
Successor Trust solely in exchange for the issuance of Successor Trust Shares to
the Current Trust and the assumption by the Successor Trust of all of the
liabilities of the Current Trust, followed by the distribution in liquidation by
the Current Trust of Successor Trust Shares to the shareholders of the Current
Trust in exchange for their shares of the Current Trust and the termination of
the Current Trust, will constitute a "reorganization" within the meaning
35
of Section 368(a)(1) of the Code, and the Current Trust and the Successor Trust
will each be "a party to a reorganization" within the meaning of Section 368(b)
of the Code;
8.5.B. No gain or loss will be recognized by the Current Trust upon (i) the
transfer of all of its assets to the Successor Trust solely in exchange for the
issuance of Successor Trust Shares to the Current Trust and the assumption by
the Successor Trust of the liabilities of the Current Trust and (ii) the
distribution by the Current Trust of such Successor Trust Shares to the
shareholders of the Current Trust;
8.5.C. No gain or loss will be recognized by the Successor Trust upon
receipt of all of the assets of the Current Trust solely in exchange for the
issuance of the Successor Trust Shares to the Current Trust and the assumption
by the Successor Trust of all of the liabilities of the Current Trust;
8.5.D. The tax basis of the assets acquired by the Successor Trust from the
Current Trust will be, in each instance, the same as the tax basis of those
assets in the hands of the Current Trust immediately before the transfer;
8.5.E. The tax holding period of the assets of the Current Trust in the
hands of the Successor Trust will, in each instance, include the tax holding
period of the Current Trust for those assets;
8.5.F. Current Trust Shareholders will not recognize gain or loss upon the
exchange of all of their shares of the Current Trust solely for Successor Trust
Shares as part of the transaction;
8.5.G. The tax basis of the Successor Trust Shares received by Current
Trust Shareholders in the transaction will be, for each shareholder, the same as
the tax basis of the shares of the Current Trust surrendered in exchange
therefor; and
8.5.H. The tax holding period of the Successor Trust Shares received by
Current Trust Shareholders will include, for each shareholder, the tax holding
period for the Current Trust Shares surrendered in exchange therefor, provided
that such Current Trust Shares were held as capital assets on the date of the
exchange.
The Current Trust and the Successor Trust each agree to make and provide
representations with respect to the Current Trust and the Successor Trust which
are reasonably necessary to enable Xxxx and Xxxx LLP to deliver an opinion
substantially as set forth in this paragraph 8.5, which opinion may address such
other federal income tax consequences, if any, that Xxxx and Xxxx LLP believes
to be material to the transaction.
Each of the foregoing conditions precedent to the obligations of a party,
except for the receipt of the opinion of Xxxx and Xxxx LLP set forth in
paragraph 8.5, may be waived by that party.
9. BROKERAGE FEES AND EXPENSES
9.1 The Successor Trust and the Current Trust each represent and warrant to
the other that there are no broker's or finder's fees payable in connection with
the transactions contemplated hereby.
36
9.2 The Current Trust and the Successor Trust shall each be liable for its
own expenses incurred in connection with entering into and carrying out the
provisions of this Agreement whether or not the transactions contemplated hereby
are consummated; if the transactions are consummated, such expenses of the
Current Trust will be assumed by the Successor Trust as part of the transaction.
10. ENTIRE AGREEMENT
The Successor Trust and the Current Trust agree that neither party has made
any representation, warranty or covenant not set forth herein and that this
Agreement constitutes the entire agreement between the parties. The
representations, warranties and covenants contained herein or in any document
delivered pursuant hereto or in connection herewith shall survive the
consummation of the transactions contemplated hereunder.
11. TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the
Successor Trust and the Current Trust. In addition, either the Successor Trust
or the Current Trust may at its option terminate this Agreement at or prior to
the Closing Date because:
11.1.A. There exists a material breach by the other party of any
representations, warranties or agreements contained herein to be performed at or
prior to the Closing Date; or
11.1.B. A condition herein expressed to be precedent to the obligations of
the terminating party has not been met and it reasonably appears that it will
not or cannot be met.
11.2 In the event of any such termination, there shall be no liability for
damages on the part of the Successor Trust or the Current Trust, or their
respective trustees or officers, to the other party or its trustees or officers.
12. AMENDMENT
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by the parties; provided, however, that
following the approval of this Agreement by Current Trust Shareholders, no such
amendment may have the effect of changing the provisions for determining the
number of Successor Trust Shares to be paid to Current Trust Shareholders under
this Agreement to the detriment of Current Trust Shareholders without their
further approval.
13. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
13.1 The article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
37
13.3 This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
13.4 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation other than the parties hereto and their respective
successors and assigns any rights or remedies under or by reason of this
Agreement.
13.5 All persons dealing with the Current Trust and the Successor Trust
must look solely to the property of the Current Trust and the Successor Trust
for the enforcement of any claims against such Trust as neither the Trustees,
officers, agents or shareholders of either Trust assume any personal liability
for obligations entered into on behalf of the Current Trust and the Successor
Trust.
13.6 A copy of the Agreement and Declaration of Trust of the Current Trust
is on file with the Secretary of State of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Current Trust as trustees and not individually and that the
obligations of this instrument are not binding upon any of the trustees,
officers, or shareholders of the current Trust individually, but are binding
only upon the assets and property of the Current Trust.
14. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the Current Trust or the
Successor Trust, each at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Secretary.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer.
PIONEER BOND FUND,
a Massachusetts business trust
By:/s/Xxxx X. Xxxxx, Xx.
Its: Chairman of the Board
and President
PIONEER BOND FUND,
a Delaware business trust
By:/s/ Xxxx X. Xxxxx, Xx.
Its: Chairman of the Board
and President
