UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT, dated this 24th day of October, 2000, by
and between Pioneer II, a Delaware business trust ("Trust"), and Pioneer Funds
Distributor, Inc., a Massachusetts corporation (the "Underwriter")
WITNESSETH
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and has filed a registration statement (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") for the purpose of
registering shares of beneficial interest for public offering under the
Securities Act of 1933, as amended;
WHEREAS, the Underwriter engages in the purchase and sale of securities
both as a broker and a dealer and is registered as a broker-dealer with the
Commission and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD");
WHEREAS, the parties hereto deem it mutually advantageous that the
Underwriter should act as Principal Underwriter, as defined in the 1940 Act, for
the sale to the public of the shares of beneficial interest of the securities
portfolio of each series of the Trust which the Trustees may establish from time
to time (individually, a "Portfolio" and collectively, the "Portfolios"); and
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Underwriter do hereby agree as follows:
1. The Trust hereby grants to the Underwriter the right and option to
purchase shares of beneficial interest of each class of each Portfolio of the
Trust (the "Shares") for sale to investors either directly or indirectly through
other broker-dealers. The Underwriter is not required to purchase any specified
number of Shares, but will purchase from the Trust only a sufficient number of
Shares as may be necessary to fill unconditional orders received from time to
time by the Underwriter from investors and dealers.
2. The Underwriter shall offer Shares to the public at an offering
price based upon the net asset value of the Shares, to be calculated for each
class of Shares as described in the Registration Statement, including the
Prospectus(es), filed with the Commission and in effect at the time of the
offering, plus sales charges as approved by the Underwriter and the Trustees of
the Trust and as further outlined in the Trust's Prospectus(es). The offering
price shall be subject to any provisions set forth in the Prospectus(es) from
time to time with respect thereto, including, without limitation, rights of
accumulation, letters of intention, exchangeability of Shares, reinstatement
privileges, net asset value purchases by certain persons and reinvestments of
dividends and capital gain distributions.
3. In the case of all Shares sold to investors through other
broker-dealers, a portion of applicable sales charges will be reallowed to such
broker-dealers who are members of the NASD or, in the case of certain sales by
banks or certain sales to foreign nationals, to brokers or dealers exempt from
registration with the Commission. The concession reallowed to broker-dealers
shall be set forth in a written sales agreement and shall be generally the same
for broker-dealers providing comparable levels of sales and service.
4. This Agreement shall terminate on any anniversary hereof if its
terms and renewal have not been approved by a majority vote of the Trustees of
the Trust voting in person, including a majority of its Trustees who are not
"interested persons" of the Trust and who have no direct or indirect financial
interest in the operation of the Underwriting Agreement (the "Qualified
Trustees"), at a meeting of Trustees called for the purpose of voting on such
approval. This Agreement may also be terminated at any time, without payment of
any penalty, by the Trust on 60 days' written notice to the Underwriter, or by
the Underwriter upon similar notice to the Trust. This Agreement may also be
terminated by a party upon five (5) days' written notice to the other party in
the event that the Commission has issued an order or obtained an injunction or
other court order suspending effectiveness of the Registration Statement
covering the Shares. Finally, this Agreement may also be terminated by the Trust
upon five (5) days' written notice to the Underwriter provided either of the
following events has occurred: (i) the NASD has expelled the Underwriter or
suspended its membership in that organization; or (ii) the qualification,
registration, license or right of the Underwriter to sell Shares in a particular
state has been suspended or cancelled in a state in which sales of Shares during
the most recent 12-month period exceeded 10% of all Shares sold by the
Underwriter during such period.
5. The compensation for the services of the Underwriter as a
principal underwriter under this Agreement shall be:
With respect to Class A Shares (i) that part of the sales charge which
is retained by the Underwriter after allowance of discounts to dealers
as set forth, if required, in the Registration Statement, including the
Prospectus, filed with the Commission and in effect at the time of the
offering, as amended, and (ii) those amounts payable to the Underwriter
as reimbursement of expenses pursuant to any distribution plan for the
Trust which may be in effect.
With respect to Class B Shares (i) the Underwriter's Allocable Portion
(as defined in Section 9) of the Distribution Fee, if any, payable from
time to time to the Underwriter under the Trust's Class B Distribution
Plan and (ii) the contingent deferred sales charge payable with respect
to Class B Shares sold through the Underwriter as set forth in the
Registration Statement, including the Prospectus, filed with the
Commission and in effect at the time of the sale of such Class B
Shares.
With respect to Class C Shares (i) the Distribution Fee, if any,
payable from time to time to the Underwriter under the Trust's Class C
Distribution Plan and (ii) the contingent deferred sales charge payable
with respect to Class C Shares sold through
2
the Underwriter as set forth in the Registration Statement, including
the Prospectus, filed with the Commission and in effect at the time of
the sale so such Class C Shares.
With respect to Class Y Shares, the Underwriter shall not be entitled
to any compensation.
With respect to any future class of Shares, the Underwriter shall be
entitled to such consideration as the Trust and the Underwriter shall
agree at the time such class of Shares is established.
Notwithstanding anything to the contrary herein, subsequent to the issuance of a
Class B Share, the Trust agrees not to take any action to waive or change any
contingent deferred sales charge (including, without limitation, by change in
the rules applicable to conversion of Class B Shares into another class) in
respect of such Class B Shares, except (i) as provided in the Trust's Prospectus
or Statement of Additional Information in effect on September 30, 1998 (if any)
or the Trust's Prospectus or Statement of Additional Information in effect on
the date of the Trust's initial public offering of such Shares, if later, or
(ii) as required by a change in the 1940 Act and the rules and regulations
thereunder, the Conduct Rules of the NASD or any order of any court or
governmental agency enacted, issued or promulgated after the date of the Trust's
Prospectus and Statement of Additional Information determined in clause (i)
above. Neither the termination of the Underwriter's role as principal
underwriter of the Class B Shares nor the termination of this Agreement nor the
termination or modification of the Class B Distribution Plan shall terminate the
Underwriter's right to the contingent deferred sales charge with respect to
Class B Shares sold through said Underwriter or Class B Shares issued through
one or a series of exchanges of shares of another investment company for which
the Underwriter acts as principal underwriter, in each case with respect to
Class B Shares or their predecessors initially issued prior to such termination
or modification ("Pre-Amendment Class B Shares"). Except as provided in the
preceding sentences and notwithstanding any other provisions of the Agreement or
the Class B Distribution Plan, the Underwriter's entitlement to its Allocable
Portion of the contingent deferred sales charge payable in respect of the
Pre-Amendment Class B Shares shall be absolute and unconditional and shall not
be subject to dispute, offset, counterclaim or any defense whatsoever, at law or
equity, including, without limitation, any of the foregoing based on the
insolvency or bankruptcy of such Underwriter.
6. Notwithstanding anything to the contrary set forth in the
Distribution Plan or this Agreement, the Trust agrees to comply with respect to
Pre-Amendment Class B Shares (as such term is defined in the Distribution Plan)
with the provision of Sections 1(b), (d), (g) and (h) and Section 4 and Section
6 of the Trust's Class B Distribution Plan as though such provision were set
forth in this Agreement.
7. Nothing contained herein shall relieve the Trust of any
obligation under its management contract or any other contract with any
affiliate of the Underwriter.
8. Notwithstanding anything to the contrary set forth in the Class B
Distribution Plan or this Agreement, the Trust acknowledges that the Underwriter
may assign, sell or
3
pledge (collectively, "Transfer") its rights to Distribution Fees and
contingent deferred sales charges with respect to Class B Shares. Upon receipt
of notice of such Transfer, the Trust shall pay to the assignee, purchaser or
pledgee (collectively with their subsequent transferees, "Transferees"), as
third party beneficiaries, such portion of the Distribution Fees and contingent
deferred sales charges payable to the Underwriter as provided in written
instructions (the "Allocation Instructions") from the Underwriter to the Trust
and shall pay the balance, if any, to the Underwriter. In the absence of
Allocation Instructions, the Trust shall have no obligations to a Transferee.
9. Payments of the Distribution Fee and contingent deferred sales
charges with respect to Class B Shares shall be allocated between the
Underwriter (or its Transferee) and such co- or successor principal underwriter
(each an "Allocable Portion"), as provided in the Allocation Procedures attached
hereto.
10. The parties to this Agreement acknowledge and agree that all
liabilities arising hereunder, whether direct or indirect, of any nature
whatsoever, including without limitation, liabilities arising in connection with
any agreement of the Trust or its Trustees as set forth herein to indemnify any
party to this Agreement or any other person, if any, shall be satisfied out of
the assets of the Trust and that no Trustee, officer or holder of Shares shall
be personally liable for any of the foregoing liabilities. The Trust's Agreement
and Declaration of Trust describes in detail the respective responsibilities and
limitations on liability of the Trustees, officers and holders of Shares.
11. This Agreement shall automatically terminate in the event of its
assignment (as that term is defined in the 1940 Act).
12. In the event of any dispute between the parties, this Agreement
shall be construed according to the laws of The Commonwealth of Massachusetts.
4
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers and their seals to be hereto
affixed as of the day and year first above written.
ATTEST: PIONEER II
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxx Xxxx X. Xxxxx, Xx.
Secretary President
ATTEST: PIONEER FUNDS DISTRIBUTOR, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Clerk Chairman
5
