AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 13th day of May, 2005, between Pioneer Europe Fund (the "Acquiring
Fund"), a business trust organized under the laws of the Commonwealth of
Massachusetts with its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and Pioneer Europe Select Fund, a statutory trust organized
under the laws of the State of Delaware with its principal place of business at
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Acquired Fund").
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization (the
"Reorganization") will consist of (a) the transfer of all of the assets of the
Acquired Fund to the Acquiring Fund solely in exchange for (i) the issuance of
shares of beneficial interest of each Class of shares of the Acquiring Fund that
corresponds to the Classes of shares of the Acquired Fund equal to the net asset
value represented by such shares (collectively, the "Acquiring Fund Shares" and
each, an "Acquiring Fund Share") to the Acquired Fund, and (ii) the assumption
by the Acquiring Fund of all of the liabilities of the Acquired Fund (the
"Assumed Liabilities"), on the closing date set forth below (the "Closing
Date"), and (b) the distribution by the Acquired Fund, on the Closing Date, or
as soon thereafter as practicable, of the Acquiring Fund Shares to the
shareholders of the Acquired Fund in liquidation and termination of the Acquired
Fund, all upon the terms and conditions hereinafter set forth in this Agreement.
WHEREAS, Acquiring Fund and the Acquired Fund are each registered
investment companies classified as management companies of the open-end type,
and the Acquired Fund owns securities that generally are assets of the character
in which the Acquiring Fund is permitted to invest;
WHEREAS, the Acquiring Fund is authorized to issue shares of beneficial
interest;
WHEREAS, the Board of Trustees of the Acquiring Fund has determined
that the exchange of all of the assets of the Acquired Fund for Acquiring Fund
Shares and the assumption of the Assumed Liabilities of the Acquired Fund by the
Acquiring Fund are in the best interests of the Acquiring Fund shareholders;
WHEREAS, the Board of Trustees of the Acquired Fund has determined that
the exchange of all of the assets of the Acquired Fund for Acquiring Fund Shares
and the assumption of the Assumed Liabilities of the Acquired Fund by the
Acquiring Fund are in the best interests of the Acquired Fund shareholders.
NOW, THEREFORE, 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 ACQUIRED FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF THE ASSUMED LIABILITIES AND LIQUIDATION
AND TERMINATION OF THE ACQUIRED FUND.
1.1 Subject to the terms and conditions set forth in this Agreement and on the
basis of the representations and warranties contained in this Agreement, the
Acquired Fund agrees to transfer its assets as set forth in paragraph 1.2 to the
Acquiring Fund free and clear of all liens and encumbrances (other than those
arising under the Securities Act of 1933, as amended (the "Securities Act"),
liens for taxes not yet due and payable or being contested in good faith and
contractual restrictions on the transfer of the acquired assets), and the
Acquiring Fund agrees in exchange therefore: (a) to issue to the Acquired Fund
the number of Acquiring Fund Shares of each Class, including fractional
Acquiring Fund Shares, determined (to at least two decimal places) by dividing
the value of the Acquired Fund's net assets attributable to a Class of shares
and transferred to the Acquiring Fund, computed in the manner and as of the time
and date set forth in paragraph 2.1, by the NAV of one Acquiring Fund Share of
the applicable Class, computed in the manner and as of the time and date set
forth in paragraph 2.2; and (b) to assume the Assumed Liabilities, as set forth
in paragraph 1.3. Such transactions shall take place at the closing provided for
in paragraph 3.1 (the "Closing").
1.2 (a) The assets of the Acquired Fund to be acquired by the Acquiring Fund
shall consist of all of the Acquired Fund's property, including, without
limitation, all portfolio securities and instruments, dividends and interest
receivables, cash, goodwill, contractual rights of the Acquired Fund all other
intangible property owned by the Acquired Fund and originals or copies of all
books and records of the Acquired Fund.
(b) The Acquired Fund has provided the Acquiring Fund with a
list of all of the Acquired Fund's securities and other assets as of the date of
this Agreement. The Acquired Fund reserves the right to sell any of these
securities (except to the extent sales may be limited by representations of the
Acquired Fund made in connection with the issuance of the tax opinion provided
for in paragraph 9.5 hereof) but will not, without the prior approval of the
Acquiring Fund, acquire any additional securities other than securities of the
type in which the Acquiring Fund is permitted to invest and shall not acquire,
without the consent of the Acquiring Fund, any securities that are valued at
"fair value" under the valuation procedures of either the Acquired Fund or the
Acquiring Fund.
1.3 The Acquired Fund will endeavor to discharge all the Acquired Fund's known
liabilities and obligations that are or will become due prior to the Closing
Date. The Acquired Fund shall prepare an unaudited statement of assets and
liabilities (the "Closing Statement"), as of the Valuation Date (as defined in
paragraph 2.1), in accordance with GAAP consistently applied from the prior
audited period, including a calculation of the net assets of the Acquired Fund
as of the close of business on the Closing Date. The Acquiring Fund shall assume
the Assumed Liabilities.
1.4 On the Closing Date or as soon thereafter as is practicable, the Acquired
Fund shall liquidate and distribute pro rata to the Acquired Fund's shareholders
of record determined as of the close of business on the Closing Date (the
"Acquired Fund Shareholders") the Acquiring Fund Shares it receives pursuant to
paragraph 1.1. Such liquidation and distribution will be accomplished by the
Acquired Fund instructing the Acquiring Fund to transfer the Acquiring Fund
Shares then credited to the account of the Acquired Fund on the books of the
Acquiring Fund to open accounts on the share records of the Acquiring Fund in
the names of the Acquired Fund Shareholders (as provided to the Acquiring Fund
by the Acquired Fund) and representing the respective pro rata number of the
Acquiring Fund Shares due such shareholders. The Acquired Fund shall promptly
provide the Acquiring Fund with evidence of such liquidation and distribution.
All issued and outstanding shares of the Acquired Fund will simultaneously be
cancelled on the books of the Acquired Fund, although share certificates
representing interests in the Acquired Fund will represent a number of Acquiring
Fund Shares after the Closing Date as determined in accordance with paragraph
1.1. The Acquiring Fund shall not issue certificates representing the Acquiring
Fund Shares in connection with such exchange.
1.5 Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent. Acquiring Fund Shares will be issued in the
manner described in the Acquiring Fund's Registration Statement on Form N-14 in
the form attached to this Agreement as Annex A.
1.6 Any transfer taxes payable upon issuance of the Acquiring Fund Shares in a
name other than the registered holder of the Acquired Fund shares on the books
of the Acquired Fund as of the time of issuance shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be issued and transferred.
1.7 Any reporting responsibility of the Acquired Fund with respect to the
Acquired Fund is and shall remain the responsibility of the Acquired Fund up to
and including the Closing Date and such later date on which the Acquired Fund is
terminated.
1.8 The Acquired Fund shall, following the Closing Date and the making of all
distributions pursuant to paragraph 1.4, be terminated under the laws of the
State of Delaware and in accordance with the Declaration of Trust and By-Laws of
the Acquired Fund.
2. VALUATION
2.1 The value of the assets of the Acquired Fund to be acquired by the Acquiring
Fund hereunder shall be the value of such assets computed as of the close of
regular trading on the New York Stock Exchange, Inc. on the Closing Date (such
time and date being hereinafter called the "Valuation Date"), using the
valuation procedures set forth in the prospectus or statement of additional
information of the Acquired Fund as in effect on the date hereof.
2.2 The NAV of the Acquiring Fund Shares shall be calculated in accordance with
the valuation procedures described in paragraph 2.1.
2.3 All computations of value shall be made by Pioneer Investment Management,
Inc., or its agent, in accordance with its regular practice as pricing agent for
the Acquired Fund.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be June 24, 2005, or such later date as the parties
may agree to in writing. All acts taking place at the Closing shall be deemed to
take place simultaneously as of the close of business on the Closing Date unless
otherwise provided. The Closing shall be held as of 5:00 p.m. (Eastern time) at
the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, or at such other time and/or place as the parties may
agree.
3.2 Portfolio securities shall be presented by the Acquired Fund to Xxxxx
Brothers Xxxxxxxx & Co. ("BBH") as custodian for the Acquiring Fund for
examination no later than three business days preceding the Valuation Date. The
Acquiring Fund may, in its sole discretion, reject any securities if it
reasonably believes that the ownership of such securities by the Acquired Fund
or the acquisition of such securities by the Acquiring Fund would violate the
investment policies and restrictions of the Acquired Fund and the Acquiring
Fund. The portfolio securities, cash and due bills shall be delivered by the
Acquired Fund to BBH as custodian for the Acquiring Fund for the account of the
Acquiring Fund at the Closing duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof in accordance with the custom
of brokers. The cash shall be delivered by wire in federal funds to an account
of the Acquiring Fund specified by the Acquiring Fund.
3.3 BBH, custodian for the Acquired Fund, shall deliver at or as soon as
possible after the Closing a certificate of an authorized officer stating that:
(a) the Acquired Fund's assets have been delivered in proper form to the
Acquiring Fund on the Closing Date and (b) all necessary transfer taxes
including all applicable federal and state stock transfer stamps, if any, have
been paid, or provision for payment shall have been made, in conjunction with
the delivery of portfolio securities.
3.4 In the event that on the Valuation Date (a) the primary trading market for
portfolio securities of the Acquired Fund shall be closed to trading or trading
thereon shall be restricted or (b) trading or the reporting of trading on such
market shall be disrupted so that accurate calculation based upon available
market prices of the value of the net assets of the parties hereto is
impracticable, the Closing Date shall be postponed until the first business day
after the day when trading shall have been fully resumed and reporting shall
have been restored, provided that unless the parties otherwise agree, if the
transactions contemplated by this Agreement shall not have occurred on or prior
to December 31, 2005, each party's obligations under this Agreement shall
terminate without liability to the other party, except for any liability that
may arise out of a party's breach of its obligations under this Agreement prior
to such termination.
3.5 The Acquired Fund shall deliver to the Acquiring Fund at the Closing (or, if
not reasonably available at the Closing, as soon as practicable thereafter) a
list of the names, addresses, taxpayer identification numbers and backup
withholding and nonresident alien withholding status of the Acquired Fund
Shareholders and the number and percentage ownership of outstanding shares owned
by each such shareholder immediately prior to the Closing, certified by the
President, Executive Vice President or Treasurer of the Acquired Fund as being
an accurate record of the information (i) provided by Acquired Fund Shareholders
or (ii) derived from the Acquired Fund's records by such officers or one of the
Acquired Fund's service providers.
3.6 The Acquiring Fund shall issue and deliver a confirmation evidencing the
Acquiring Fund Shares to be credited to the Acquired Fund's account on the
Closing Date to the Secretary of the Acquired Fund, or provide evidence
satisfactory to the Acquired Fund that such Acquiring Fund Shares have been
credited to the Acquired Fund's account on the books of the Acquiring Fund. At
the Closing, each party shall deliver to the other such bills of sale, checks,
assignments, share certificates, if any, receipts or other documents as such
other party or its counsel may reasonably request.
4. LIQUIDATION AND TERMINATION OF ACQUIRED FUND
4.1 As soon as practicable after the Closing, the Acquired Fund shall liquidate
the Acquired Fund and distribute pro rata to the Acquired Fund Shareholders the
Acquiring Fund Shares received pursuant to paragraph 1.1. Such liquidation and
distribution will be accomplished by the transfer of the Acquiring Fund Shares
credited to the account of the Acquired Fund to open accounts on the share
records in the names of Acquired Fund Shareholders as delivered to the Acquiring
Fund prior to the Closing Date in accordance with paragraph 3.5 and representing
the respective pro rata entitlement of each Acquired Fund Shareholder in the
Acquiring Fund Shares of the corresponding Class held by the Acquired Fund
Shareholder at the time of the Closing.
4.2 In connection with such liquidating distributions, (a) the Acquiring Fund
shall not deliver certificates representing its shares and (b) the share
transfer books of the Acquired Fund shall be permanently closed as of the
Closing Date and arrangements satisfactory to the Acquiring Fund, acting
reasonably, shall be made to restrict the further transfer of the Acquired
Fund's shares.
4.3 As soon as practicable after the liquidation of the Acquired Fund, the
Acquired Fund shall terminate its existence as a statutory trust under the laws
of the State of Delaware and in accordance with the Declaration of Trust and
By-Laws of the Acquired Fund.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Acquired Fund represents and warrants to the Acquiring Fund, which
representations and warranties will be true and correct on the date hereof and
on the Closing Date as though made on and as of the Closing Date, as follows:
(a) The Acquired Fund is a statutory trust 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, subject
to approval by the Acquired Fund Shareholders, to perform its
obligations under this Agreement. The Acquired Fund 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
Acquired Fund 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;
(b) The Acquired Fund is a registered investment company
classified as a management company of the open-end type, and
its registration with the Securities and Exchange Commission
(the "Commission") under the Investment Company Act of 1940
(the "Investment Company Act") is in full force and effect;
(c) The Acquired Fund is not, and the execution, delivery and
performance of this Agreement in respect of the Acquired Fund
will not result, in a material violation of its Declaration of
Trust or By-Laws or of any material agreement, indenture,
instrument, contract, lease or other undertaking with respect
to the Acquired Fund to which the Acquired Fund is a party or
by which the Acquired Fund or its assets are bound;
(d) Except as specifically disclosed on Schedule 5.1(d) or
included in the calculation of NAV on the Valuation Date, the
Acquired Fund has no material contracts or other commitments
(other than this Agreement) with respect to the Acquired Fund
which will be terminated with liability to either the Acquired
Fund or to the Acquired Fund on or prior to the Closing Date;
(e) No litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending
or to its knowledge threatened against the Acquired Fund or
any of the Acquired Fund's properties or assets, except as
previously disclosed in writing to, and acknowledged in
writing by, the Acquiring Fund. The Acquired Fund is not a
party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially
and adversely affects the Acquired Fund's business or the
Acquired Fund's ability to consummate the transactions herein
contemplated;
(f) The statement of assets and liabilities of the Acquired Fund
as of August 31, 2004 has been audited by Ernst & Young LLP,
independent certified public accountants, has been prepared in
accordance with GAAP consistently applied and fairly reflects
the financial condition of the Acquired Fund as of such date;
except for the Assumed Liabilities, the Acquired Fund will not
have any known or contingent liabilities on the Closing Date;
(g) Since August 31, 2004 except as disclosed on a schedule to
this Agreement or specifically disclosed in the Acquired
Fund's prospectus or statement of additional information as in
effect on the date of this Agreement, there has not been any
material adverse change in the Acquired Fund's financial
condition, assets, liabilities, business or prospects, or any
incurrence by the Acquired Fund of indebtedness, except for
normal contractual obligations incurred in the ordinary course
of business or in connection with the settlement of purchases
and sales of portfolio securities. For the purposes of this
subparagraph (g), a decline in NAV per share of the Acquired
Fund arising out of its normal investment operations or a
decline in net assets of the Acquired Fund as a result of
redemptions shall not constitute a material adverse change;
(h) For each taxable year of its operation, the Acquired Fund has
met the requirements of Subchapter M of the Code for
qualification and favorable tax treatment as a regulated
investment company and will qualify as such as of the Closing
Date with respect to its taxable year ending on the Closing
Date. The Acquired Fund has not taken any action, or failed to
take any action, which has caused or will cause the Acquired
Fund to fail to qualify for such favorable tax treatment as a
regulated investment company under the Code. The Acquired Fund
has not been notified that any tax return or other filing of
the Acquired Fund has been reviewed or audited by any federal,
state, local or foreign taxing authority. Except as set forth
on Schedule 5.1:
(A) The Acquired Fund shall have filed all federal, state and
local tax returns required by law to be filed, including all
information returns and payee statements, and all tax returns
for foreign countries, provinces and other governing bodies
that have jurisdiction to levy taxes upon;
(B) The Acquired Fund shall have paid all taxes, interest,
penalties, assessments and deficiencies which have become due
or which have been claimed to be due or provision shall have
been made for the payment thereof;
(C) All tax returns filed or to be filed by the Acquired Fund
shall constitute complete and accurate reports of the
respective tax liabilities of the Acquired Fund or, in the
case of information returns and payee statements, the amounts
required to be reported accurately set forth all material
items required to be included or reflected in such returns;
(D) The Acquired Fund has not and will not have waived or extended
any applicable statute of limitations relating to the
assessment of federal, state, local or foreign taxes; and
(E) The Acquired Fund has not been notified that any examinations
of the federal, state, local or foreign tax returns of the
Acquired Fund are currently in progress or threatened and no
deficiencies have been asserted or assessed against the
Acquired Fund as a result of any audit by the Internal Revenue
Service or any state, local or foreign taxing authority, and
no such deficiency has been proposed or threatened;
(i) All issued and outstanding shares of the Acquired Fund are,
and at the Closing Date will be, duly and validly issued and
outstanding, fully paid and non-assessable. To the Acquired
Fund's knowledge, all of the issued and outstanding shares of
the Acquired Fund will, at the time of Closing, be held of
record by the persons and in the amounts set forth in the
records of the transfer agent as provided in paragraph 3.5.
The Acquired Fund does not have outstanding any options,
warrants or other rights to subscribe for or purchase any
shares of the Acquired Fund, nor is there outstanding any
security convertible into any shares of the Acquired Fund;
(j) At the Closing Date, the Acquired Fund will have good and
marketable title to the assets to be transferred to the
Acquiring Fund pursuant to paragraph 1.1 and full right, power
and authority to sell, assign, transfer and deliver such
assets hereunder, and, upon delivery and payment for such
assets, the Acquiring Fund will acquire good and marketable
title thereto, subject to no restrictions on the full transfer
thereof, except such restrictions as might arise under the
Securities Act, other than as disclosed in writing to, and
acknowledged in writing by, the Acquiring Fund;
(k) The Acquired Fund has the power and authority to enter into
and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement has been
duly authorized by all necessary action on the part of the
Acquired Fund's Board of Trustees, and, subject to the
approval of the Acquired Fund Shareholders, assuming due
authorization, execution and delivery by the Acquiring Fund,
this Agreement will constitute a valid and binding obligation
of the Acquired Fund, enforceable in accordance with its
terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(l) Any information furnished by the Acquired Fund for use in
registration statements, proxy materials and any information
necessary to compute the total return of the Acquired Fund
shall be accurate and complete in all material respects and
shall comply in all material respects with federal securities
and other laws and regulations applicable thereto or the
requirements of any form for which its use is intended;
(m) The proxy statement to be included in the Acquiring Fund's
Registration Statement on Form N-14 attached hereto as Annex A
(other than information therein that relates to Pioneer
Investment Management, Inc., the Acquiring Fund or their
affiliates) will, on the effective date of that Registration
Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(n) Except as set forth on Schedule 5.1 and as will be obtained on
or prior to the Closing Date, no consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the Acquired Fund of the
transactions contemplated by this Agreement;
(o) To the Acquired Fund's knowledge, all of the issued and
outstanding shares of beneficial interest of the Acquired Fund
have been offered for sale and sold in conformity with all
applicable federal and state securities laws;
(p) The Acquired Fund currently complies in all material respects
with and since its organization has complied in all material
respects with the requirements of, and the rules and
regulations under, the Investment Company Act, the Securities
Act, the Securities Exchange Act of 1934 (the "Exchange Act"),
state "Blue Sky" laws and all other applicable federal and
state laws or regulations. The Acquired Fund currently
complies in all material respects with, and since its
organization has complied in all material respects with, all
investment objectives, policies, guidelines and restrictions
and any compliance procedures established by the Acquired Fund
with respect to the Acquired Fund. All advertising and sales
material used by the Acquired Fund complies in all material
respects with and has complied in all material respects with
the applicable requirements of the Securities Act, the rules
and regulations of the Commission, and, to the extent
applicable, the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "NASD") and any applicable state
regulatory authority. All registration statements,
prospectuses, reports, proxy materials or other filings
required to be made or filed with the Commission, the NASD or
any state securities authorities by the Acquired Fund have
been duly filed and have been approved or declared effective,
if such approval or declaration of effectiveness is required
by law. Such registration statements, prospectuses, reports,
proxy materials and other filings under the Securities Act,
the Exchange Act and the Investment Company Act (i) are or
were in compliance in all material respects with the
requirements of all applicable statutes and the rules and
regulations thereunder and (ii) do not or did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in
which they were made, not false or misleading;
(q) The Acquired Fund has previously provided to the Acquiring
Fund (and will at the Closing provide an update through the
Closing Date of such information) with data which supports a
calculation of the Acquired Fund's total return and yield for
all periods since the organization of the Acquired Fund. Such
data has been prepared in accordance in all material respects
with the requirements of the Investment Company Act and the
regulations thereunder and the rules of the NASD; and
(r) The prospectus of the Acquired Fund dated December 39, 2004,
and any amendments or supplements thereto, previously
furnished to the Acquiring Fund, did not as of their dates or
the dates of their distribution to the public contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which such statements were made, not misleading.
(s) The Acquired Fund Tax Representation Certificate to be
delivered by the Acquired Fund to the Acquiring Fund and
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at the Closing
pursuant to paragraph 8.4 (the "Acquired Fund Tax
Representation Certificate") will not on the Closing Date
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein
not misleading.
5.2 The Acquiring Fund represents and warrants to the Acquired Fund, which
representations and warranties will be true and correct on the date hereof and
on the Closing Date as though made on and as of the Closing Date, as follows:
(a) The Acquiring Fund is a business trust, validly existing and
in good standing under the laws of the Commonwealth of
Massachusetts and has the power to own all of its properties
and assets and to perform its obligations under this
Agreement. The Acquiring Fund 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 Acquiring Fund 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;
(b) The Acquiring Fund is a registered investment company
classified as a management company of the open-end type, and
its registration with the Commission as an investment company
under the Investment Company Act is in full force and effect;
(c) The prospectus and statement of additional information of the
Acquiring Fund included in the Acquiring Fund's registration
statement that will be in effect on the Closing Date will
conform in all material respects with the applicable
requirements of the Securities Act and the Investment Company
Act and the rules and regulations of the Commission thereunder
and will not as of its date and as of the Closing Date contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading;
(d) The Acquiring Fund is not, and its execution, delivery and
performance of this Agreement will not result, in violation of
its Agreement and Declaration of Trust or By-Laws or in
material violation of any agreement, indenture, instrument,
contract, lease or other undertaking with respect to the
Acquiring Fund to which it is a party or by which it is bound;
(e) No litigation or administrative proceeding or investigation of
or before any court or governmental body is presently pending
or threatened against the Acquiring Fund or any of the
Acquiring Fund's properties or assets, except as previously
disclosed in writing to, and acknowledged in writing by, the
Acquired Fund. The Acquiring Fund knows of no facts which
might form the basis for the institution of such proceedings,
and the Acquiring Fund is not a party to or subject to the
provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects the
Acquiring Fund's business or its ability to consummate the
transactions contemplated herein;
(f) The Acquiring Fund has the power and authority to enter into
and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement has been
duly authorized by all necessary action, if any, on the part
of the Acquiring Fund's Board of Trustees, and, assuming due
authorization, execution and delivery by the Acquired Fund,
this Agreement will constitute a valid and binding obligation
of the Acquiring Fund, enforceable in accordance with its
terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(g) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund
Shareholders, pursuant to the terms of this Agreement, will at
the Closing Date have been duly authorized and, when so issued
and delivered, will be duly and validly issued Acquiring Fund
Shares and will be fully paid and non-assessable; the
Acquiring Fund does not have outstanding any options, warrants
or other rights to subscribe for or purchase any Acquiring
Fund Shares, nor is there outstanding any security convertible
into any of the Acquiring Fund Shares;
(h) The information to be furnished by the Acquiring Fund for use
in proxy materials and other documents which may be necessary
in connection with the transactions contemplated hereby shall
be accurate and complete in all material respects and shall
comply in all material respects with federal securities and
other laws and regulations applicable thereto or the
requirements of any form for which its use is intended;
(i) For each taxable year of its operation, the Acquiring Fund has
met the requirements of Subchapter M of the Code for
qualification and treatment as a regulated investment company
and has elected to be treated as such and will qualify as such
as of the Closing Date. The Acquiring Fund has not taken any
action which has caused or will cause the Acquiring Fund to
fail to qualify as a regulated investment company under the
Code. The Acquiring Fund has not been notified that any tax
return or other filing of the Acquiring Fund has been reviewed
or audited by any federal, state, local or foreign taxing
authority. Except as set forth on Schedule 5.1:
(A) The Acquiring Fund shall have filed all federal, state and
local tax returns required to be filed, including all
information returns and payee statements, and all tax returns
for foreign countries, provinces and other governing bodies
that have jurisdiction to levy taxes upon it;
(B) The Acquiring Fund shall have paid all taxes, interest,
penalties, assessments and deficiencies which have become due
or which have been claimed to be due or provision shall have
been made for the payment thereof;
(C) All tax returns filed or to be filed by the Acquiring Fund
shall constitute complete and accurate reports of the
respective tax liabilities of the Acquiring Fund or, in the
case of information returns and payee statements, the amounts
required to be reported accurately set forth all material
items required to be included or reflected in such returns;
(D) The Acquiring Fund has not and will not have waived or
extended any applicable statute of limitations relating to the
assessment of federal, state, local or foreign taxes; and
(E) The Acquiring Fund has not been notified that any examinations
of the federal, state, local or foreign tax returns of the
Acquiring Fund are currently in progress or threatened and no
deficiencies have been asserted or assessed against the
Acquiring Fund as a result of any audit by the Internal
Revenue Service or any state, local or foreign taxing
authority, and no such deficiency has been proposed or
threatened;
(j) Immediately prior to the Closing, the Acquiring Fund will be
in compliance in all material respects with all applicable
laws, rules and regulations, including, without limitation,
the Investment Company Act, the Securities Act, the Exchange
Act and all applicable state securities laws. Immediately
prior to the Closing, the Acquiring Fund will be in compliance
in all material respects with the applicable investment
policies and restrictions set forth in its registration
statement currently in effect and will have calculated its NAV
in accordance with the Acquiring Fund's registration
statement;
(k) The Acquiring Fund Shares to be issued pursuant to this
Agreement shall on the Closing Date be duly registered under
the Securities Act by a Registration Statement on Form N-14 of
the Acquiring Fund then in effect and qualified for sale under
the applicable state securities laws; and
(l) The Acquiring Fund Shares to be issued pursuant to this
Agreement are duly authorized and on the Closing Date will be
validly issued and fully paid and non-assessable and will
conform in all material respects to the description thereof
contained in the Acquiring Fund's Registration Statement on
Form N-14. On the Closing Date, the Acquiring Fund shall not,
except as provided herein, have outstanding any warrants,
options, convertible securities or any other type of right
pursuant to which any person could acquire Acquiring Fund
Shares.
(m) The Acquiring Fund Tax Representation Certificate to be
delivered by the Acquiring Fund to the Acquired Fund and
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP at Closing pursuant
to paragraph 7.3 (the "Acquiring Fund Tax Representation
Certificate") will not on the Closing Date contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
6. COVENANTS OF EACH OF THE PARTIES
6.1 The Acquired Fund will operate its business in the ordinary course between
the date hereof and the Closing Date. It is understood that such ordinary course
of business will include the declaration and payment of customary dividends and
distributions and any other dividends and distributions necessary or advisable
(except to the extent distributions that are not customary may be limited by
representations made in connection with the issuance of the tax opinion
described in paragraph 9.5 hereof), in each case payable either in cash or in
additional shares.
6.2 The Acquired Fund will call a meeting of the Acquired Fund Shareholders to
consider and act upon the matters set forth in the proxy statement. Each of the
Acquired Fund and the Acquiring Fund will use reasonable efforts to promptly
prepare and file with the Commission a Registration Statement on Form N-14
relating to the transactions contemplated by this Agreement.
6.3 The Acquired Fund covenants that the Acquiring Fund Shares to be issued
hereunder are not being acquired for the purpose of making any distribution
thereof other than in accordance with the terms of this Agreement.
6.4 The Acquired Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requests concerning the beneficial
ownership of the Acquired Fund's shares.
6.5 Subject to the provisions of this Agreement, each of the Acquired Fund and
the Acquiring Fund will take, or cause to be taken, all actions, and do or cause
to be done, all things reasonably necessary, proper or advisable to consummate
and make effective the transactions contemplated by this Agreement.
6.6 The Acquired Fund shall furnish to the Acquiring Fund on the Closing Date
the Closing Statement, which statement shall be prepared in accordance with GAAP
consistently applied and shall be certified by the Acquired Fund's Treasurer or
Assistant Treasurer. As promptly as practicable, but in any case within 90 days
after the Closing Date, the Acquired Fund shall furnish to the Acquiring Fund,
in such form as is reasonably satisfactory to the Acquiring Fund, a statement of
the earnings and profits of the Acquired Fund for federal income tax purposes,
and of any capital loss carryovers and other items that will be carried over to
the Acquiring Fund as a result of Section 381 of the Code, and which statement
will be certified by the Treasurer of the Acquired Fund.
6.7 The Acquired Fund shall provide the Acquiring Fund with information
reasonably necessary for the preparation of a prospectus, which will include the
proxy statement, referred to in paragraph 5.1(m), all to be included in the
Acquiring Fund's Registration Statement on Form N-14, in compliance with the
Securities Act, the Exchange Act and the Investment Company Act in connection
with the meeting of the Acquired Fund Shareholders to consider approval of this
Agreement and the transactions contemplated herein.
6.8 The Acquired Fund shall maintain errors and omissions insurance covering
management of the Acquired Fund prior to and including the Closing Date.
6.9 Neither the Acquired Fund not the Acquiring Fund shall take any action that
is inconsistent with the representations set forth in, with respect to the
Acquired Fund, the Acquired Fund Tax Representation Certificate, and with
respect to the Acquiring Fund, the Acquiring Fund Tax Representation
Certificate, to the extent such action would prevent the reorganization from
qualifying as a "reorganization" under Section 368(a) of the Code.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all of the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following further
conditions, unless waived by the Acquired Fund in writing:
7.1 All representations and warranties made in this Agreement by the Acquiring
Fund 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 Acquiring Fund shall have delivered to the Acquired Fund a certificate
executed in its name by its President, Executive Vice President, Treasurer or
Assistant Treasurer, in form and substance reasonably satisfactory to the
Acquired Fund and dated as of the Closing Date, to the effect that the
representations and warranties made in this Agreement by the Acquiring Fund are
true and correct in all material respects at and as of the Closing Date, except
as they may be affected by the transactions contemplated by this Agreement; and
7.3 The Acquiring Fund shall have delivered to the Acquired Fund and Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP an Acquiring Fund Tax Representation
Certificate, satisfactory to the Acquired Fund and Xxxxxx Xxxxxx Xxxxxxxxx Xxxx
and Xxxx LLP, substantially in the form attached to this Agreement as Annex B,
concerning certain tax-related maters with respect to the Acquiring Fund.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquired Fund of all of the its obligations hereunder on or before the Closing
Date and, in addition thereto, the following further conditions:
8.1 All representations and warranties made in this Agreement by the Acquired
Fund 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;
8.2 The Acquired Fund shall have delivered to the Acquiring Fund a statement of
the Acquired Fund's assets and liabilities showing the federal tax bases and
holding periods as of the Closing Date, certified by the Acquired Fund's
Treasurer or Assistant Treasurer;
8.3 The Acquired Fund shall have delivered to the Acquiring Fund on the Closing
Date a certificate executed in its name by its President, Executive Vice
President, Treasurer or Assistant Treasurer, in form and substance reasonably
satisfactory to the Acquiring Fund and dated as of the Closing Date, to the
effect that the representations and warranties made in this Agreement are true
and correct in all material respects at and as of the Closing Date, except as
they may be affected by the transactions contemplated by this Agreement; and
8.4 The Acquired Fund shall have delivered to the Acquiring Fund and Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP an Acquired Fund Tax Representation
Certificate, satisfactory to the Acquiring Fund and Xxxxxx Xxxxxx Xxxxxxxxx Xxxx
and Xxxx LLP, substantially in the form attached to this Agreement as Annex C,
concerning certain tax-related matters with respect to the Acquired Fund.
9. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH OF THE PARTIES
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to either party hereto, the other party to this
Agreement shall, at its option, not be required to consummate the transactions
contemplated by this Agreement:
9.1 This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of the
Acquired Fund in accordance with the provisions of each of the Acquired Fund's
Declaration of Trust and By-Laws, and certified copies of the votes evidencing
such approval shall have been delivered to the Acquiring Fund. Notwithstanding
anything herein to the contrary, neither party hereto may waive the conditions
set forth in this paragraph 9.1;
9.2 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 obtain damages or other relief in connection with, this Agreement
or the transactions contemplated herein;
9.3 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 Blue Sky and securities authorities) deemed necessary by
either party hereto 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 either party hereto,
provided that either party may for itself waive any of such conditions;
9.4 The Acquiring Fund's Registration Statement on Form N-14 shall have become
effective under the Securities Act and no stop orders suspending the
effectiveness thereof shall have been issued and, to the best knowledge of the
parties hereto, no investigation or proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated under the Securities Act;
9.5 The parties shall have received a favorable opinion of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, addressed to the Acquiring Fund and the Acquired
Fund and satisfactory to the Acquiring Fund and the Acquired Fund, substantially
to the effect that for federal income tax purposes, on the basis of the facts,
representations and assumptions set forth in such opinion, the acquisition by
the Acquiring Fund of all of the assets of the Acquired Fund solely in exchange
for the issuance of Acquiring Fund Shares to the Acquired Fund and the
assumption of all of the Assumed Liabilities by the Acquiring Fund, followed by
the distribution by the Acquired Fund, in liquidation of the Acquired Fund, of
Acquiring Fund Shares to the Acquired Fund Shareholders in exchange for their
Acquired Fund shares of beneficial interest and the termination of the Acquired
Fund, will constitute a reorganization within the meaning of Section 368(a) of
the Code. Notwithstanding anything herein to the contrary, neither Acquiring
Fund nor Acquired Fund may waive the conditions set forth in this paragraph 9.5;
and
9.6 The Acquired Fund shall have distributed to its shareholders, in a
distribution or distributions qualifying for the deduction for dividends paid
under Section 561 of the Code, all of its investment company taxable income (as
defined in Section 852(b)(2) of the Code determined without regard to Section
852(b)(2)(D) of the Code) for its taxable year ending on the Closing Date, all
of the excess of (i) its interest income excludable from gross income under
Section 103(a) of the Code over (ii) its deductions disallowed under Sections
265 and 171(a)(2) of the Code for its taxable year ending on the Closing Date,
and all of its net capital gain (as such term is used in Sections 852(b)(3)(A)
and (C) of the Code), after reduction by any available capital loss
carryforward, for its taxable year ending on the Closing Date.
10. BROKERAGE FEES AND EXPENSES
10.1 Each party hereto represents and warrants to the other party hereto that
there are no brokers or finders entitled to receive any payments in connection
with the transactions provided for herein.
10.2 The parties have been informed by Pioneer Investment Management, Inc. that
it will pay all expenses incurred in connection with the Reorganization
(including, but not limited to, the preparation of the proxy statement and
solicitation expenses).
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1 The parties hereto agree that no party has made any representation,
warranty or covenant not set forth herein or referred to in paragraph 9.6 hereof
and that this Agreement constitutes the entire agreement between the parties.
11.2 The representations, warranties and covenants contained in this Agreement
or in any document delivered pursuant hereto or in connection herewith shall
survive the consummation of the transactions contemplated hereunder.
12. TERMINATION
12.1 This Agreement may be terminated at any time prior to the Closing Date by:
(a) the mutual agreement of the Acquired Fund and the Acquiring Fund; (b) any
party in the event that the other party hereto shall breach any material
representation, warranty or agreement contained herein to be performed at or
prior to the Closing Date and has not cured such breach within 10 days of notice
thereof; or (c) 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.
12.2 In the event of any such termination, there shall be no liability for
damages on the part of any party hereto or their respective Trustees or officers
to the other party, but[, except as provided in Section 10,] each shall bear the
expenses incurred by it incidental to the preparation and carrying out of this
Agreement.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Acquired Fund and the Acquiring Fund; provided, however, that following the
meeting of the Acquired Fund Shareholders called by the Acquired Fund pursuant
to paragraph 6.2 of this Agreement, no such amendment may have the effect of
changing the provisions for determining the number of the Acquiring Fund Shares
to be issued to the Acquired Fund Shareholders under this Agreement to the
detriment of the Acquired Fund Shareholders without their further approval.
14. NOTICES
Any notice, report, statement or demand required or permitted by any
provision of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the Acquired Fund and the
Acquiring Fund at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
15. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
15.1 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.
15.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
15.3 This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
15.4 This Agreement shall bind 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 either party
without the written consent of the other party hereto. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm, corporation or other entity, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
15.5 It is expressly agreed that the obligations of the Acquiring Fund and the
Acquired Fund shall not be binding upon any of their respective Trustees,
shareholders, nominees, officers, agents or employees personally, but bind only
the property of the Acquiring Fund or the Acquired Fund, as the case may be, as
provided in the Declaration of Trust of the Acquiring Fund and the Acquired
Fund, respectively. The execution and delivery of this Agreement have been
authorized by the Acquired Trustees of each of the Acquiring Fund and the
Acquired Fund and this Agreement has been executed by authorized officers of the
Acquiring Fund and the Acquired Fund acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officers
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the property of the
Acquiring Fund and the Acquired Fund, as the case may be, as provided in the
Declaration of Trust of the Acquiring Fund and the Acquired Fund, respectively.
[Remainder of page left blank intentionally.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President or Vice President and attested by its
Secretary or Assistant Secretary.
Attested: PIONEER EUROPE FUND
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
----------------------- ------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Executive Vice President
Attest: PIONEER EUROPE SELECT FUND
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
----------------------- ------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Executive Vice President
Annex B
TAX REPRESENTATION CERTIFICATE OF
PIONEER EUROPE FUND
This certificate is being delivered in connection with the transaction to
be effected pursuant to the Agreement and Plan of Reorganization (the
"Agreement") made as of ________________, 2005 between Pioneer Europe Fund
("Acquiring Fund"), and Pioneer Europe Select Fund ("Acquired Fund"). Pursuant
to the Agreement, Acquiring Fund will acquire all of the assets of Acquired Fund
in exchange solely for (i) the assumption by Acquiring Fund of the liabilities
of Acquired Fund (the "Acquired Fund Liabilities") and (ii) the issuance of
Class A shares, Class B shares, and Class C shares of beneficial interest of
Acquiring Fund (the "Acquiring Fund Shares") to Acquired Fund, followed by the
distribution by Acquired Fund, in liquidation of Acquired Fund, of the Acquiring
Fund Shares to the shareholders of Acquired Fund and the termination of Acquired
Fund (the foregoing together constituting the "transaction").
The undersigned officer of Acquiring Fund, after consulting with its
counsel, auditors and tax advisers regarding the meaning of and factual support
for the following representations, on behalf of Acquiring Fund, hereby certifies
and represents that the following statements are true, complete and correct and
will be true, complete and correct on the date of the transaction and thereafter
as relevant. Unless otherwise indicated, all capitalized terms used but not
defined herein shall have the meaning ascribed to them in the Agreement.
1. Acquiring Fund is a business trust established under the laws of the
Commonwealth of Massachusetts, and Acquiring Fund is, and has been at all
times, treated as a separate corporation for federal income tax purposes.
2. Neither Acquiring Fund nor any person treated as related to Acquiring Fund
under Treasury Regulation Section 1.368-1(e)(3) nor any partnership of
which Acquiring Fund or any such related person is a partner has any plan
or intention to redeem or otherwise acquire any of the Acquiring Fund
Shares received by shareholders of Acquired Fund in the transaction except
in the ordinary course of Acquiring Fund's business in connection with its
legal obligation under Section 22(e) of the Investment Company Act of 1940,
as amended (the "1940 Act"), as a registered open-end investment company to
redeem its own shares.
3. After the transaction, Acquiring Fund will continue the historic business
of Acquired Fund or will use all or a significant portion of the historic
business assets of Acquired Fund in a business. For this purpose, Acquiring
Fund shall be treated as conducting the business and holding the assets of
certain related entities, as described in Treasury Regulation Section
1.368-1(d)(4).
4. Acquiring Fund has no plan or intention to sell or otherwise dispose of any
assets of Acquired Fund acquired in the transaction, except for
dispositions made in the ordinary course of its business or to maintain its
qualification as a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), and except for
transfers of assets to certain related entities, as described in Section
368(a)(2)(C) of the Code or Treasury Regulation Section 1.368-2(k)(1).
5. Any expenses of Acquired Fund incurred in connection with the transaction
which are paid or assumed by Acquiring Fund will be expenses of Acquired
Fund solely and directly related to the transaction in accordance with Rev.
Rul. 73-54, 1973-1 C.B. 187. Acquiring Fund will not pay or assume the
expenses, if any, of Acquired Fund shareholders in connection with the
transaction.
6. There is no, and never has been any, indebtedness between Acquiring Fund
and Acquired Fund.
7. Acquiring Fund has properly elected to be treated as a regulated investment
company under Subchapter M of the Code, has qualified for the special tax
treatment afforded regulated investment companies under the Code for each
taxable year since inception, qualifies for such treatment as of the date
of the transaction, and intends to qualify for such treatment after the
transaction.
8. Acquiring Fund meets the requirements of a regulated investment company as
defined in Section 368(a)(2)(F) of the Code.
9. Acquiring Fund is not under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code.
10. Acquiring Fund does not now own and has never owned, directly or
indirectly, any shares of Acquired Fund.
11. As of the date of the transaction, the fair market value of the Acquiring
Fund Shares issued to Acquired Fund in exchange for the assets of Acquired
Fund will be approximately equal to the fair market value of the assets of
Acquired Fund received by Acquiring Fund, minus the Acquired Fund
Liabilities assumed by Acquiring Fund. Acquiring Fund will not furnish any
consideration in connection with the acquisition of Acquired Fund's assets
other than the assumption of such Acquired Fund Liabilities and the
issuance of such Acquiring Fund Shares.
12. Acquired Fund shareholders will not be in control (within the meaning of
Sections 368(a)(2)(H)(i) and 304(c) of the Code, which provide that control
means the ownership of shares possessing at least 50% of the total combined
voting power of all classes of shares that are entitled to vote or at least
50% of the total value of shares of all classes) of Acquiring Fund after
the transaction.
13. The transaction is being undertaken for valid and substantial business
purposes, including capitalizing on potential economies of scale in
expenses, including the costs of accounting, legal, transfer agency,
insurance, custodial, and administrative services, and increasing
diversification.
14. No Acquired Fund shareholder is acting as agent for Acquiring Fund in
connection with the transaction or approval thereof. Acquiring Fund will
not reimburse any Acquired Fund shareholder for Acquired Fund shares such
shareholder may have purchased or for other obligations such shareholder
may have incurred.
The undersigned officer of Acquiring Fund is authorized to make all of the
representations set forth herein, and the undersigned is authorized to execute
this certificate on behalf of Acquiring Fund. The undersigned recognizes that
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP will rely upon the foregoing
representations in evaluating the United States federal income tax consequences
of the transaction and rendering its opinion pursuant to Section 9.5 of the
Agreement. If, prior to the date of the transaction, any of the representations
set forth herein ceases to be accurate, the undersigned agrees to deliver to
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP immediately a written notice to that
effect.
PIONEER EUROPE FUND
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Dated: _______________, 2005
Annex C
TAX REPRESENTATION CERTIFICATE OF
PIONEER EUROPE SELECT FUND
This certificate is being delivered in connection with the transaction
to be effective pursuant to the Agreement and Plan of Reorganization (the
"Agreement") made as of ___________ , 2005 between Pioneer Europe Fund
("Acquiring Fund"), and Pioneer Europe Select Fund ("Acquired Fund"). Pursuant
to the Agreement, Acquiring Fund will acquire all of the assets of Acquired Fund
in exchange solely for (i) the assumption by Acquiring Fund of the liabilities
of Acquired Fund (the "Acquired Fund Liabilities") and (ii) the issuance of
Class A shares, Class B shares, and Class C shares of beneficial interest of
Acquiring Fund (the "Acquiring Fund Shares") to Acquired Fund, followed by the
distribution by Acquired Fund, in liquidation of Acquired Fund, of the Acquiring
Fund Shares to the shareholders of Acquired Fund and the termination of Acquired
Fund (the foregoing together constituting the "transaction").
The undersigned officer of Acquired Fund, after consulting with its
counsel, auditors and tax advisers regarding the meaning of and factual support
for the following representations, on behalf of Acquired Fund, hereby certifies
and represents that the following statements are true, complete and correct and
will be true, complete and correct on the date of the transaction and thereafter
as relevant. Unless otherwise indicated, all capitalized terms used but not
defined herein shall have the meaning ascribed to them in the Agreement.
15. Acquired Fund is a statutory trust established under the laws of the State
of Delaware, and Acquired Fund is, and has been at all times, treated as a
separate corporation for federal income tax purposes.
16. As of the date of the transaction, the fair market value of the Acquiring
Fund Shares received by each shareholder that holds shares of Acquired Fund
(the "Acquired Fund Shares") will be approximately equal to the fair market
value of the Acquired Fund Shares with respect to which such Acquiring Fund
Shares are received, and the aggregate consideration received by Acquired
Fund shareholders in exchange for their Acquired Fund Shares will be
approximately equal to the fair market value of all of the outstanding
Acquired Fund Shares immediately prior to the transaction. No property
other than Acquiring Fund Shares will be distributed to shareholders of
Acquired Fund in exchange for their Acquired Fund Shares, nor will any such
shareholder receive cash or other property as part of the transaction.
17. Neither Acquired Fund nor any person "related" to Acquired Fund (as defined
in Treasury Regulation Section 1.368-1(e)(3)) nor any partnership in which
the Acquired Fund or any such related person is a partner has redeemed,
acquired or otherwise made any distributions with respect to any shares of
the Acquired Fund as part of the transaction, or otherwise pursuant to a
plan of which the transaction is a part, other than redemptions and
distributions made in the ordinary course of Acquired Fund's business as an
open-end regulated investment company. There is no plan or intention on the
part of any shareholder of Acquired Fund that owns beneficially 5% or more
of the Acquired Fund Shares and, to the best knowledge of management of
Acquired Fund, there is no plan or intention on the part of the remaining
shareholders of Acquired Fund, in connection with the transaction, to
engage in any transaction with Acquired Fund, Acquiring Fund, or any person
treated as related to Acquired Fund or Acquiring Fund under Treasury
Regulation Section 1.368-1(e)(3) or any partnership in which Acquired Fund,
Acquiring Fund, or any person treated as related to Acquired Fund or
Acquiring Fund under Treasury Regulation Section 1.368-1(e)(3) is a partner
involving the sale, redemption or exchange of any of the Acquired Fund
Shares or any of the Acquiring Fund Shares to be received in the
transaction, as the case may be.
18. Acquired Fund assets transferred to Acquiring Fund will comprise at least
ninety percent (90%) of the fair market value of the net assets and at
least seventy percent (70%) of the fair market value of the gross assets
held by Acquired Fund immediately prior to the transaction. For purposes of
this representation, amounts used by Acquired Fund to pay expenses of the
transaction and all redemptions and distributions (except for redemptions
in the ordinary course of business upon demand of a shareholder that
Acquired Fund is required to make as an open-end investment company
pursuant to Section 22(e) of the Investment Company Act of 1940, as
amended, and regular, normal dividends) made by Acquired Fund immediately
preceding the transaction are taken into account as assets of Acquired Fund
held immediately prior to the transaction.
19. As of the date of the transaction, the fair market value of the Acquiring
Fund Shares issued to Acquired Fund in exchange for the assets of Acquired
Fund will be approximately equal to the fair market value of the assets of
Acquired Fund received by Acquiring Fund, minus the Acquired Fund
Liabilities assumed by Acquiring Fund. Acquired Fund will not receive any
consideration from the Acquiring Fund in connection with the acquisition of
Acquired Fund's assets other than the assumption of such Acquired Fund
Liabilities and the issuance of such Acquiring Fund Shares.
20. The Acquired Fund Liabilities assumed by Acquiring Fund plus the
liabilities, if any, to which the transferred assets are subject were
incurred by Acquired Fund in the ordinary course of its business.
21. The fair market value of the Acquired Fund assets transferred to Acquiring
Fund will equal or exceed the sum of the Acquired Fund Liabilities assumed
by Acquiring Fund within the meaning of Section 357(d) of the Internal
Revenue Code of 1986, as amended (the "Code").
22. Acquired Fund currently conducts its historic business within the meaning
of Treasury Regulation Section 1.368-1(d), which provides that, in general,
a corporation's historic business is the business it has conducted most
recently, but does not include a business that the corporation enters into
as part of a plan of reorganization. The Acquired Fund assets transferred
to Acquiring Fund will be Acquired Fund's historic business assets within
the meaning of Treasury Regulation Section 1.368-1(d), which provides that
a corporation's historic business assets are the assets used in its
historic business.
23. Acquired Fund will distribute to its shareholders the Acquiring Fund Shares
it receives, and its other properties, if any, pursuant to the transaction
and will be liquidated promptly thereafter.
24. The expenses of Acquired Fund incurred by it in connection with the
transaction which are to be assumed by Acquiring Fund, if any, will be only
such expenses that are solely and directly related to the transaction in
accordance with Rev. Rul. 73-54, 1973-1 C.B. 187. Acquired Fund will not
pay any expenses incurred by its shareholders in connection with the
transaction.
25. There is no, and never has been any, indebtedness between Acquiring Fund
and Acquired Fund.
26. Acquired Fund has properly elected to be treated as a regulated investment
company under Subchapter M of the Code, has qualified for the special tax
treatment afforded regulated investment companies under Subchapter M of the
Code for each taxable year since inception, and qualifies for such
treatment for its taxable year ending on the closing date of the
transaction.
27. Acquired Fund meets the requirements of a regulated investment company as
defined in Section 368(a)(2)(F) of the Code.
28. Acquired Fund is not under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code.
29. Acquired Fund shareholders will not be in control (within the meaning of
Sections 368(a)(2)(H)(i) and 304(c) of the Code, which provide that control
means the ownership of shares possessing at least 50% of the total combined
voting power of all classes of shares that are entitled to vote or at least
50% of the total value of shares of all classes) of Acquiring Fund after
the transaction.
30. Acquired Fund shareholders will not have dissenters' or appraisal rights in
the transaction.
31. The transaction is being undertaken for valid and substantial business
purposes, including capitalizing on potential economies of scale in
expenses, including the costs of accounting, legal, transfer agency,
insurance, custodial, and administrative services, and increasing
diversification.
The undersigned officer of Acquired Fund is authorized to make all of
the representations set forth herein, and the undersigned is authorized to
execute this certificate on behalf of Acquired Fund. The undersigned recognizes
that Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP will rely upon the foregoing
representations in evaluating the United States federal income tax consequences
of the transaction and rendering its opinion pursuant to Section 9.5 of the
Agreement. If, prior to the date of the transaction, any of the representations
set forth herein ceases to be accurate, the undersigned agrees to deliver to
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP immediately a written notice to that
effect.
PIONEER EUROPE SELECT FUND
By:
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Name:
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Title:
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Dated: ______________ , 2005
