AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of the 12th day of June 2009, by and between Pioneer Series Trust V, a Delaware
statutory trust (the "Acquiring Trust"), on behalf of its series, Pioneer Global
Equity Fund (the "Acquiring Fund"), with its principal place of business at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Pioneer Series Trust IX, a
Delaware statutory trust (the "Acquired Trust"), on behalf of its series,
Pioneer Europe Select Equity Fund (the "Acquired Fund"), with its principal
place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The Acquiring
Fund and the Acquired Fund are sometimes referred to collectively herein as the
"Funds" and individually as a "Fund."
This Agreement is intended to constitute a plan of a "reorganization"
as defined in Section 368(a) of the United States Internal Revenue Code of 1986,
as amended (the "Code") and the Treasury Regulations thereunder. The
reorganization (the "Reorganization") will consist of (1) the transfer of all of
the assets of the Acquired Fund to the Acquiring Fund solely in exchange for (A)
the issuance of Class A, Class B, Class C and Class Y shares of beneficial
interest of the Acquiring Fund (collectively, the "Acquiring Fund Shares" and
each, an "Acquiring Fund Share") to the Acquired Fund, and (B) the assumption by
the Acquiring Fund of all of the liabilities of the Acquired Fund on the closing
date of the Reorganization (the "Closing Date"), and (2) the distribution by the
Acquired Fund, on or promptly after the Closing Date as provided herein, of the
Acquiring Fund Shares to the shareholders of the Acquired Fund in complete
liquidation of the Acquired Fund, all upon the terms and conditions hereinafter
set forth in this Agreement. The parties hereby adopt this Agreement as a "plan
of reorganization" within the meaning of Treasury Regulations Sections
1.368-2(g) and 1.368-3(a).
WHEREAS, the Acquiring Trust and the Acquired Trust are each registered
investment companies classified as management companies of the open-end type.
WHEREAS, the Acquiring Fund is authorized to issue shares of beneficial
interest.
WHEREAS, the Board of Trustees of each of the Acquiring Trust and the
Acquired Trust have determined that the Reorganization is in the best interests
of the Acquiring Fund shareholders and the Acquired Fund shareholders,
respectively, and is not dilutive of the interests of those shareholders.
NOW, THEREFORE, in consideration of the premises 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; LIQUIDATION AND
TERMINATION OF THE ACQUIRED FUND.
1.1 Subject to the terms and conditions herein set forth and on the basis of the
representations and warranties contained herein, the Acquired Fund will transfer
all of its assets as set forth in Paragraph 1.2 (the "Acquired Assets") 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 contractual restrictions on the transfer of the
Acquired Assets) and the Acquiring Fund agrees in exchange therefor: (i) to
issue to the Acquired Fund the number of Acquiring Fund Shares, including
fractional Acquiring Fund Shares, of each class with an aggregate net asset
value ("NAV") equal to the NAV of the Acquired Fund attributable to the
corresponding class of the Acquired Fund's shares, as determined in the manner
set forth in Paragraphs 2.1 and 2.2; and (ii) to assume all of the liabilities
and obligations of the Acquired Fund, whether accrued or contingent, known or
unknown, existing at the Closing Date (collectively, the "Assumed Liabilities").
Such transactions shall take place at the Closing (as defined in Paragraph 3.1
below).
1.2 (a) The Acquired Assets 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 and choses in action of the Acquired Fund or the Acquired Trust in
respect of the Acquired Fund, all other intangible property owned by the
Acquired Fund, originals or copies of all books and records of the Acquired
Fund, and all other assets of the Acquired Fund on the Closing Date. The
Acquiring Fund shall also be entitled to receive copies of all records that the
Acquired Fund is required to maintain under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), and the rules of the Securities and
Exchange Commission (the "Commission") promulgated thereunder to the extent such
records pertain to 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 execution of this
Agreement, and the Acquiring Fund has provided the Acquired Fund with a copy of
the current fundamental investment policies and restrictions and fair value
procedures applicable to the Acquiring Fund. The Acquired Fund reserves the
right to sell any of such securities or other assets before the Closing Date
(except to the extent sales may be limited by representations of the Acquired
Fund contained herein and made in connection with the issuance of the tax
opinion provided for in Paragraph 8.3 hereof) and agrees not to acquire any
portfolio security that is not an eligible investment for, or that would violate
an investment policy or restriction of, the Acquiring Fund.
1.3 The Acquired Fund will endeavor to discharge all of its known liabilities
and obligations that are or will become due prior to the Closing.
1.4 On or as soon after the Closing Date as is conveniently practicable (the
"Liquidation Date"), the Acquired Trust shall liquidate the Acquired Fund and
distribute pro rata to its shareholders of record, determined as of the close of
regular trading on the New York Stock Exchange on the Closing Date (the
"Acquired Fund Shareholders"), the Acquiring Fund Shares received by the
Acquired Fund pursuant to Paragraph 1.1 hereof. Each Acquired Fund Shareholder
shall receive the number of full and fractional Acquiring Fund Shares of the
class corresponding to the class of shares of beneficial interest in the
Acquired Fund (the "Acquired Fund Shares") held by such Acquired Fund
Shareholder that have an aggregate NAV equal to the aggregate NAV of the
Acquired Fund Shares held of record by such Acquired Fund Shareholder on the
Closing Date. Such liquidation and distribution will be accomplished by the
Acquired Trust instructing the Acquiring Trust 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
established and maintained by the Acquiring Fund's transfer agent in the names
of the Acquired Fund Shareholders and representing the respective pro rata
number of the Acquiring Fund Shares due the Acquired Fund Shareholders. The
Acquired Trust shall promptly provide the Acquiring Trust with evidence of such
liquidation and distribution. All issued and outstanding Acquired Fund Shares
will simultaneously be cancelled on the books of the Acquired Fund, and the
Acquired Fund will be dissolved. 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. Any certificates representing ownership of
Acquired Fund Shares that remain outstanding on the Closing Date shall be deemed
to be cancelled and shall no longer evidence ownership of Acquired Fund Shares.
1.6 Any transfer taxes payable upon issuance of 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 that time 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 Trust with respect to the
Acquired Fund for taxable periods ending on or before the Closing Date,
including, but not limited to, the responsibility for filing of regulatory
reports, or other documents with the Commission, any state securities
commissions, and any federal, state or local tax authorities or any other
relevant regulatory authority, is and shall remain the responsibility of the
Acquired Fund.
2. VALUATION
2.1 The NAV per share of each class of the Acquiring Fund Shares and the NAV per
share of each class of the Acquired Fund shall, in each case, be determined as
of the close of regular trading on the New York Stock Exchange (generally, 4:00
p.m., Eastern time) on the Closing Date (the "Valuation Time"). Pioneer
Investment Management, Inc. (the "Acquiring Fund Adviser") shall compute the NAV
per Acquiring Fund Share in the manner set forth in the Acquiring Trust's
Agreement and Declaration of Trust (the "Declaration"), or By-Laws, and the
Acquiring Fund's then-current prospectus and statement of additional
information. The Acquiring Fund Adviser shall compute the NAV per share of the
Acquired Fund in the manner set forth in the Acquired Trust's Agreement and
Declaration of Trust, or By-Laws, and the Acquired Fund's then-current
prospectus and statement of additional information. The Acquiring Fund Adviser
shall confirm to the Acquiring Fund the NAV of the Acquired Fund.
2.2 The number of shares of each class of Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the Acquired Assets and
the assumption of the Assumed Liabilities shall be determined by the Acquiring
Fund Adviser by dividing the NAV of the Acquired Fund attributable to each class
of the Acquired Fund's shares, as determined in accordance with Paragraph 2.1,
by the NAV of an Acquiring Fund Share of the corresponding class, as determined
in accordance with Paragraph 2.1.
2.3 The Acquiring Fund and the Acquired Fund shall cause the Acquiring Fund
Adviser to deliver a copy of its valuation report to the other party at Closing
(as defined in Paragraph 3.1). All computations of value shall be made by the
Acquiring Fund Adviser in accordance with its regular practice as pricing agent
for the Acquiring Fund and the Acquired Fund.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be June 12, 2009, or such other date as the parties
may agree. All acts necessary to consummate the Reorganization (the "Closing")
shall be deemed to take place simultaneously as of 5:00 p.m. (Eastern time) on
the Closing Date unless otherwise agreed by the parties. The Closing shall be
held at the offices of Xxxxxxx XxXxxxxxx LLP, One Federal Street,
Boston, Massachusetts, or at such other place as the parties may agree.
3.2 Portfolio securities that are held other than in book-entry form in the name
of Xxxxx Brothers Xxxxxxxx & Co. (the "Acquired Fund Custodian") as record
holder for the Acquired Fund shall be presented by the Acquired Fund to Xxxxx
Brothers Xxxxxxxx & Co. (the "Acquiring Fund Custodian") for examination no
later than three(3) business days preceding the Closing Date. Such portfolio
securities shall be delivered by the Acquired Fund to the Acquiring Fund
Custodian for the account of the Acquiring Fund 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 Acquired Fund Custodian in book-entry form on behalf of the Acquired Fund
shall be delivered by the Acquired Fund Custodian through the Depository Trust
Company to the Acquiring Fund Custodian and by the Acquiring Fund Custodian
recording the beneficial ownership thereof by the Acquiring Fund on the
Acquiring Fund Custodian's records. Any cash shall be delivered by the Acquired
Fund Custodian transmitting immediately available funds by wire transfer to the
Acquiring Fund Custodian the cash balances maintained by the Acquired Fund
Custodian and the Acquiring Fund Custodian crediting such amount to the account
of the Acquiring Fund.
3.3 The Acquiring Fund Custodian shall deliver within one business day after the
Closing a certificate of an authorized officer stating that: (a) the Acquired
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
has been made in conjunction with the delivery of portfolio securities as part
of the Acquired Assets.
3.4 If on the Closing Date (a) the New York Stock Exchange is closed to trading
or trading thereon shall be restricted or (b) trading or the reporting of
trading on such exchange or elsewhere is disrupted so that accurate appraisal of
the NAV of the Acquiring Fund Shares or the Acquired Fund pursuant to Paragraph
2.1 is impracticable (in the judgment of the Acquiring Trust Board with respect
to the Acquiring Fund and the Acquired Trust Board with respect to the Acquired
Fund), 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.
3.5 The Acquired Fund shall deliver at the Closing a list of the names,
addresses, federal taxpayer identification numbers and backup withholding and
nonresident alien withholding status and certificates of the Acquired Fund
Shareholders and the number and percentage ownership of outstanding Acquired
Fund Shares owned by each Acquired Fund Shareholder as of the Valuation Time,
certified by the President or a Secretary of the Acquired Trust and its
Treasurer, Secretary or other authorized officer (the "Shareholder List") as
being an accurate record of the information (a) provided by the Acquired Fund
Shareholders, (b) provided by the Acquired Fund Custodian, or (c) derived from
the Acquired Trust's records by such officers or one of the Acquired Trust's
service providers. The Acquiring Fund shall issue and deliver to the Acquired
Fund a confirmation evidencing the Acquiring Fund Shares to be credited on the
Closing Date, 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, stock certificates, receipts or
other documents as such other party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1 Except as set forth on Schedule 4.1 of this Agreement, the Acquired Trust,
on behalf of the Acquired Fund, represents, warrants and covenants to the
Acquiring Fund as follows:
(a) The Acquired Fund is a series of the Acquired Trust. The Acquired Trust 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 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
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 Trust 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 Acquired Trust is not in violation of, and the execution and delivery of
this Agreement and the performance of its obligations under this Agreement on
behalf of the Acquired Fund will not result in a material violation of, any
provision of the Acquired Trust's Declaration or By-Laws or any material
agreement, indenture, instrument, contract, lease or other undertaking with
respect to the Acquired Fund to which the Acquired Trust, on behalf of the
Acquired Fund, is a party or by which the Acquired Fund or any of its assets are
bound;
(d) No litigation or administrative proceeding or investigation of or before any
court or governmental body is currently pending or to its knowledge threatened
against the Acquired Fund or any of the Acquired Fund's properties or assets
that, if adversely determined, would materially and adversely affect its
financial condition or the conduct of the Acquired Fund's business. 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 adversely affects
the Acquired Fund's business or its ability to consummate the transactions
contemplated herein or would be binding upon the Acquiring Fund as the successor
to the Acquired Fund;
(e) All material contracts or other commitments of the Acquired Fund (other than
this Agreement or agreements for the purchase and sale of securities entered
into in the ordinary course of business and consistent with its obligations
under this Agreement) will terminate at or prior to the Closing Date and no such
termination will result in liability to the Acquired Fund (or the Acquiring
Fund);
(f) The statement of assets and liabilities of the Acquired Fund, and the
related statements of operations and changes in net assets, as of and for the
fiscal year ended August 31, 2008, have been audited by Ernst & Young LLP,
independent registered public accounting firm, and are in accordance with
generally accepted accounting principles ("GAAP") consistently applied and
fairly reflect, in all material respects, the financial condition of the
Acquired Fund as of such date and the results of its operations for the period
then ended, and all known liabilities, whether actual or contingent, of the
Acquired Fund as of the date thereof are disclosed therein. The Statement of
Assets and Liabilities will be in accordance with GAAP consistently applied and
will fairly reflect, in all material respects, the financial condition of the
Acquired Fund as of such date and the results of its operations for the period
then ended. Except for the Assumed Liabilities, the Acquired Fund will not have
any known or contingent liabilities on the Closing Date. No significant
deficiency, material weakness, fraud, significant change or other factor that
could significantly affect the internal controls of the Acquired Fund has been
disclosed or is required to be disclosed in the Acquired Fund's reports on Form
N-CSR to enable the chief executive officer and chief financial officer or other
officers of the Acquired Trust to make the certifications required by the
Xxxxxxxx-Xxxxx Act, and no deficiency, weakness, fraud, change, event or other
factor exists with respect to the Acquired Fund that will be required to be
disclosed in the Acquiring Fund's Form N-CSR after the Closing Date;
(g) Since the most recent fiscal year end, except as specifically disclosed in
the Acquired Fund's prospectus, its statement of additional information as in
effect on the date of this Agreement, or its semi-annual report for the
six-month period ended February 28, 2009, 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) (but not for any
other purpose of this Agreement), a decline in NAV per Acquired Fund Share
arising out of its normal investment operations or a decline in market values of
securities in the Acquired Fund's portfolio, a decline in net assets of the
Acquired Fund as a result of redemptions or the discharge of Acquired Fund
liabilities shall not constitute a material adverse change;
(h) The Acquired Fund is a separate series of the Acquired Trust treated as a
separate corporation from each other series of the Acquired Trust under Section
851(g) of the Code. For each taxable year of its existence, including the
taxable year ending on the Closing Date, the Acquired Fund has had in effect an
election to be treated as a "regulated investment company" under Subchapter M of
the Code, has satisfied or will satisfy all of the requirements of Subchapter M
of the Code for treatment as a regulated investment company, and has been or
will be eligible to compute its federal income tax under Section 852 of the
Code;
(i) All issued and outstanding Acquired Fund Shares are, and at the Closing Date
will be, legally issued and outstanding, fully paid and nonassessable by the
Acquired Fund. All of the issued and outstanding Acquired Fund Shares will, at
the time of Closing, be held of record by the persons and in the amounts set
forth in the Shareholder List submitted to the Acquiring Fund pursuant to
Paragraph 3.5 hereof. The Acquired Fund does not have outstanding any options,
warrants or other rights to subscribe for or purchase any Acquired Fund Shares,
nor is there outstanding any security convertible into any Acquired Fund Shares;
(j) At the Closing Date, the Acquired Fund will have good and marketable title
to the Acquired Assets, and full right, power and authority to sell, assign,
transfer and deliver the Acquired Assets to the Acquiring Fund, and, upon
delivery and payment for the Acquired 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;
(k) The Acquired Trust has the trust power and authority, on behalf of the
Acquired Fund, to enter into and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of the Acquired Trust's Board of
Trustees, and, assuming due authorization, execution and delivery by the
Acquiring Trust, on behalf of the Acquiring Fund, this Agreement will constitute
a valid and binding obligation of the Acquired Trust, on behalf 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) The information to be furnished by the Acquired Fund to the Acquiring Fund
for use in applications for orders, registration statements and other documents
which may be necessary in connection with the transactions contemplated hereby
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;
(m) No consent, approval, authorization or order of or filing with any court or
governmental authority is required for the execution of this Agreement or the
consummation of the transactions contemplated by this Agreement by the Acquired
Trust or the Acquired Fund, except such as may be required under the Securities
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
1940 Act, state securities laws and the Xxxx-Xxxxx-Xxxxxx Act;
(n) The provisions of the Acquired Trust's Declaration, the Acquired Trust's
By-Laws and Delaware law do not require the shareholders of the Acquired Fund to
approve this Agreement or the transactions contemplated herein in order for the
Acquired Trust or the Acquired Fund to consummate the transactions contemplated
herein;
(o) All of the issued and outstanding Acquired Fund Shares have been offered for
sale and sold in compliance in all material respects with all applicable federal
and state securities laws, except as may have been previously disclosed in
writing to the Acquiring Fund;
(p) The current prospectus and statement of additional information of the
Acquired Fund and any amendments or supplements thereto, 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 in which such statements were made, not
materially misleading;
(q) The Acquired Fund currently complies in all material respects with the
requirements of, and the rules and regulations under, the Investment Company
Act, the Securities Act, 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 all investment objectives, policies,
guidelines and restrictions and any compliance procedures established by the
Acquired Trust with respect to the Acquired Fund. All advertising and sales
material currently used by the Acquired Fund complies in all material respects
with the applicable requirements of the Securities Act, the Investment Company
Act, the rules and regulations of the Commission promulgated thereunder, and, to
the extent applicable, the Conduct Rules of the Financial Industry Regulatory
Authority ("FINRA") 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, FINRA or any state securities
authorities used by the Acquired Fund during the three (3) years prior to the
date of this Agreement 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;
(r) Neither the Acquired Fund nor, to the knowledge of the Acquired Fund, any
"affiliated person" of the Acquired Fund has been convicted of any felony or
misdemeanor, described in Section 9(a)(1) of the Investment Company Act, nor, to
the knowledge of the Acquired Fund, has any affiliated person of the Acquired
Fund been the subject, or presently is the subject, of any proceeding or
investigation with respect to any disqualification that would be a basis for
denial, suspension or revocation of registration as an investment adviser under
Section 203(e) of the Investment Advisers Act of 1940, as amended (the
"Investment Advisers Act"), or Rule 206(4)-4(b) thereunder or of a broker-dealer
under Section 15 of the Exchange Act, or for disqualification as an investment
adviser, employee, officer or director of an investment company under Section 9
of the Investment Company Act; and
(s) The tax representation certificate to be delivered by the Acquired Trust, on
behalf of the Acquired Fund, to Xxxxxxx XxXxxxxxx LLP at the Closing pursuant to
Paragraph 7.4 (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.
4.2 Except as set forth on Schedule 4.2 of this Agreement, the Acquiring Trust,
on behalf of the Acquiring Fund, represents, warrants and covenants to the
Acquired Fund, as follows:
(a) The Acquiring Fund is a series of the Acquiring Trust. The Acquiring Trust
is a statutory trust duly organized, validly existing and in good standing under
the laws of the State of Delaware. The
Acquiring Trust 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 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 Trust 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 current prospectus and statement of additional information of the
Acquiring Fund and each prospectus and statement of additional information for
the Acquiring Fund used during the three (3) years previous to the date of this
Agreement, and any amendment or supplement to any of the foregoing, conform or
conformed at the time of their distribution to the public in all material
respects to the applicable requirements of the Securities Act and the Investment
Company Act and the rules and regulations of the Commission promulgated
thereunder and do not or did not at the time of their distribution to the public
include 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 under which they were made, not materially
misleading;
(d) The Acquiring Trust's registration statement on Form N-1A with respect to
the Acquiring Fund that will be in effect on the Closing Date, and the
prospectus and statement of additional information of the Acquiring Fund
included therein, 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 did not as of the effective
date thereof and will not 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;
(e) The Acquiring Trust is not in violation of, and the execution and delivery
of this Agreement and performance of its obligations under this Agreement on
behalf of the Acquiring Fund will not result in a material violation of, any
provisions of the Declaration or By-Laws of the Acquiring Trust or any material
agreement, indenture, instrument, contract, lease or other undertaking with
respect to the Acquiring Fund to which the Acquiring Trust is a party or by
which the Acquiring Fund or any of its assets is bound;
(f) No litigation or administrative proceeding or investigation of or before any
court or governmental body is currently pending or threatened against the
Acquiring Fund or any of the Acquiring Fund's properties or assets that, if
adversely determined, would materially and adversely affect its financial
condition or the conduct of the Acquiring Fund's business. Neither the Acquiring
Trust nor the Acquiring Fund is a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body which materially
adversely affects the Acquiring Fund's business or its ability to consummate the
transactions contemplated herein;
(g) The statement of assets and liabilities of the Acquiring Fund, and the
related statements of operations and changes in net assets, as of and for the
fiscal year ended August 31, 2008 have been audited by Ernst & Young LLP,
independent registered public accounting firm, and are in accordance with GAAP
consistently applied and fairly reflect, in all material respects, the financial
condition of the Acquiring Fund as of such date and the results of its
operations for the period then ended, and all known liabilities, whether actual
or contingent, of the Acquiring Fund as of the date thereof are disclosed
therein;
(h) Since the most recent fiscal year end, except as specifically disclosed in
the Acquiring Fund's prospectus, its statement of additional information as in
effect on the date of this Agreement, or its semi-annual report for the
six-month period ended February 28, 2009, there has not been any material
adverse change in the Acquiring Fund's financial condition, assets, liabilities,
business or prospects, or any incurrence by the Acquiring 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 (h) (but not for any
other purpose of this Agreement), a decline in NAV per Acquiring Fund Share
arising out of its normal investment operations or a decline in market values of
securities in the Acquiring Fund's portfolio, a decline in net assets of the
Acquiring Fund as a result of redemptions or the discharge of Acquiring Fund
liabilities shall not constitute a material adverse change;
(i) The Acquiring Fund is a separate series of the Acquiring Trust treated as a
separate corporation from each other series of the Acquiring Trust under Section
851(g) of the Code. For each taxable year of its existence, the Acquired Fund
has had in effect an election to be treated as a "regulated investment company"
under Subchapter M of the Code, has satisfied all of the requirements of
Subchapter M of the Code for treatment as a regulated investment company, and
has been eligible to compute its federal income tax under Section 852 of the
Code. The Acquired Fund expects to satisfy such requirements and be so eligible
for its taxable year that includes the Closing Date.
(j) The authorized capital of the Acquiring Fund consists of an unlimited number
of shares of beneficial interest, no par value per share. As of the Closing
Date, the Acquiring Fund will be authorized to issue an unlimited number of
shares of beneficial interest, no par value per share. 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 have been duly
authorized on the Closing Date and, when so issued and delivered, will be
legally issued and outstanding, 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 Acquiring Fund Shares;
(k) All issued and outstanding Acquiring Fund Shares are, and on the Closing
Date will be, legally issued, fully paid and non-assessable and have been
offered and sold in every state and the District of Columbia in compliance in
all material respects with all applicable federal and state securities laws;
(l) The Acquiring Trust has the trust power and authority, on behalf of the
Acquiring Fund, to enter into and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of the Acquiring Trust's Board of
Trustees, and, assuming due authorization, execution and delivery by the
Acquired Trust, on behalf of the Acquired Fund, this Agreement will constitute a
valid and binding obligation of the Acquiring Trust, on behalf 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;
(m) The information to be furnished in writing by the Acquiring Trust, on behalf
of the Acquiring Fund, or the Acquiring Fund Adviser for use in applications for
orders, registration statements 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, and shall not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the information provided not misleading;
(n) No consent, approval, authorization or order of or filing with any court or
governmental authority is required for the execution of this Agreement or the
consummation of the transactions contemplated by this Agreement by the Acquiring
Trust or the Acquiring Fund, except such as may be required under the Securities
Act, the Exchange Act, the 1940 Act, state securities laws and the
Xxxx-Xxxxx-Xxxxxx Act;
(o) The Acquiring Fund currently complies in all material respects with, the
requirements of, and the rules and regulations under, the Investment Company
Act, the Securities Act, the Exchange Act, state "Blue Sky" laws and all other
applicable federal and state laws or regulations. The Acquiring Fund currently
complies in all material respects with all investment objectives, policies,
guidelines and restrictions and any compliance procedures established by the
Acquiring Trust with respect to the Acquiring Fund. All advertising and sales
material currently used by the Acquiring Fund complies in all material respects
with the applicable requirements of the Securities Act, the Investment Company
Act, the rules and regulations of the Commission, and, to the extent applicable,
the Conduct Rules of FINRA 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, FINRA or any state securities
authorities used by the Acquiring Fund during the three (3) years prior to the
date of this Agreement 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;
(p) Neither the Acquiring Fund nor, to the knowledge of the Acquiring Fund, any
"affiliated person" of the Acquiring Fund has been convicted of any felony or
misdemeanor, described in Section 9(a)(1) of the Investment Company Act, nor, to
the knowledge of the Acquiring Fund, has any affiliated person of the Acquiring
Fund been the subject, or presently is the subject, of any proceeding or
investigation with respect to any disqualification that would be a basis for
denial, suspension or revocation of registration as an investment adviser under
Section 203(e) of the Investment Advisers Act or Rule 206(4)-4(b) thereunder or
of a broker-dealer under Section 15 of the Exchange Act, or for disqualification
as an investment adviser, employee, officer or director of an investment company
under Section 9 of the Investment Company Act; and
(q) The tax representation certificate to be delivered by the Acquiring Trust on
behalf of the Acquiring Fund to Xxxxxxx XxXxxxxxx LLP at the Closing pursuant to
Paragraph 6.3 (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.
5. COVENANTS OF THE FUNDS
The Acquired Fund and the Acquiring Fund, respectively, hereby further
covenant as follows:
5.1 The Acquired Fund covenants that the Acquiring Fund Shares to be issued
hereunder are not being acquired by the Acquired Fund for the purpose of making
any distribution thereof other than in accordance with the terms of this
Agreement.
5.2 The Acquired Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requires concerning the beneficial
ownership of the Acquired Fund Shares.
5.3 Subject to the provisions of this Agreement, each 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 the transactions contemplated by
this Agreement.
5.4 The Acquired Fund shall furnish to the Acquiring Fund on the Closing Date a
statement of assets and liabilities of the Acquired Fund ("Statement of Assets
and Liabilities") as of the Closing Date setting forth the NAV (as computed
pursuant to Paragraph 2.1) of the Acquired Fund as of the Valuation Time, which
statement shall be prepared in accordance with GAAP consistently applied and
certified by the Acquired Trust's Treasurer or Assistant Treasurer. As promptly
as practicable, but in any case within 30 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 under
the Code, and which statement will be certified by the Treasurer of the Acquired
Trust.
5.5 Neither Fund shall take any action that is inconsistent with the
representations set forth herein or, with respect to the Acquired Fund, in the
Acquired Fund Tax Representation Certificate and, with respect to the Acquiring
Fund, in the Acquiring Fund Tax Representation Certificate. Unless otherwise
required pursuant to a "determination" within the meaning of Section 1313(a) of
the Code, the parties hereto shall treat and report the transactions
contemplated hereby as a reorganization within the meaning of Section 368(a) of
the Code and shall not take any position inconsistent with such treatment.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to complete the transactions
provided for herein shall be, at its election, subject to the performance by the
Acquiring Fund of all 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:
6.1 All representations and warranties by the Acquiring Trust, on behalf of the
Acquiring Fund, 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;
6.2 The Acquiring Trust shall have delivered to the Acquired Trust on the
Closing Date a certificate of the Acquiring Trust, on behalf of the Acquiring
Fund, executed in its name by its President or Vice President and its Treasurer
or Assistant Treasurer, in form and substance satisfactory to the Acquired Trust
and dated as of the Closing Date, to the effect that the representations and
warranties of the Acquiring Trust made in this Agreement on behalf of 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, that each of the conditions to Closing in this Article 6 has
been met, and as to such other matters as the Acquired Trust shall reasonably
request;
6.3 The Acquiring Trust, on behalf of the Acquiring Fund, shall have delivered
to Xxxxxxx XxXxxxxxx LLP an Acquiring Fund Tax Representation Certificate,
satisfactory to Xxxxxxx XxXxxxxxx LLP, in a form mutually acceptable to the
Acquiring Trust and the Acquired Trust, concerning certain tax-related matters
with respect to the Acquired Fund; and
6.4 With respect to the Acquiring Fund, the Board of Trustees of the Acquiring
Trust shall have determined that the Reorganization is in the best interests of
the Acquiring Fund and, based upon such determination, shall have approved this
Agreement and the transactions contemplated hereby.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be, at its election, subject to the performance by the
Acquired Fund of all 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 Acquiring Fund in writing:
7.1 All representations and warranties of the Acquired Trust, on behalf of the
Acquired Fund, 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 Acquired Trust shall have delivered to the Acquiring Fund the Statement
of Assets and Liabilities of the Acquired Fund pursuant to Paragraph 5.4,
together with a list of its portfolio securities showing the federal income tax
bases and holding periods of such securities, as of the Closing Date, certified
by the Acquired Trust's Treasurer or Assistant Treasurer;
7.3 The Acquired Trust shall have delivered to the Acquiring Trust on the
Closing Date a certificate of the Acquired Trust, on behalf of the Acquired
Fund, executed in its name by its President or Vice President and a Treasurer or
Assistant Treasurer, in form and substance reasonably satisfactory to the
Acquiring Trust and dated as of the Closing Date, to the effect that the
representations and warranties of the Acquired Trust made in this Agreement on
behalf of the Acquired 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, that each of the conditions to Closing in this
Article 7 has been met, and as to such other matters as the Acquiring Trust
shall reasonably request;
7.4 The Acquired Trust, on behalf of the Acquired Fund, shall have delivered to
Xxxxxxx XxXxxxxxx LLP an Acquired Fund Tax Representation Certificate,
satisfactory to Xxxxxxx XxXxxxxxx LLP, in a form mutually acceptable to the
Acquiring Trust and the Acquired Trust, concerning certain tax-related matters
with respect to the Acquired Fund; and
7.5 With respect to the Acquired Fund, the Board of Trustees of the Acquired
Trust shall have determined that the Reorganization is in the best interests of
the Acquired Fund and, based upon such determination, shall have approved this
Agreement and the transactions contemplated hereby.
8. FURTHER CONDITIONS PRECEDENT
If any of the conditions set forth below does 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:
8.1 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;
8.2 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 waive any such conditions for itself;
8.3 The parties shall have received an opinion of Xxxxxxx XxXxxxxxx LLP,
satisfactory to the Acquired Trust and the Acquiring Trust and subject to
customary assumptions and qualifications, substantially to the effect that for
federal income tax purposes (i) the transfer to the Acquiring Fund of all of the
assets of the Acquired Fund in exchange solely for the issuance of Acquiring
Fund Shares to the Acquired Fund and the assumption of the Assumed Liabilities
by the Acquiring Fund, followed by the distribution by the Acquired Fund, in
complete liquidation of the Acquired Fund, of Acquiring Fund Shares to the
Acquired Fund Shareholders in exchange for their Acquired Fund Shares and the
termination of the Acquired Fund, will constitute a "reorganization" within the
meaning of Section 368(a) of the Code, and each of the Acquired Fund and the
Acquiring Fund will be a "party to a reorganization" within the meaning of
Section 368(b) of the Code; (ii) no gain or loss will be recognized by the
Acquired Fund on the transfer of the Acquired Assets to the Acquiring Fund
solely in exchange for the Acquiring Fund Shares and the assumption by the
Acquiring Fund of the Assumed Liabilities, or upon the distribution of the
Acquiring Fund Shares to the shareholders of the Acquired Fund, except for (A)
gain or loss that may be recognized on the transfer of "section 1256 contracts"
as defined in Section 1256(b) of the Code, (B) gain that may be recognized on
the transfer of stock in a "passive foreign investment company" as defined in
Section 1297(a) of the Code, or (C) any other gain that may be required to be
recognized as a result of the closing of the Acquired Fund's taxable year; (iii)
the tax basis in the hands of the Acquiring Fund of the Acquired Assets will be
the same as the tax basis of such Acquired Assets in the hands of the Acquired
Fund immediately prior to the transfer thereof, increased by the amount of gain
(or decreased by the amount of loss), if any, recognized by the Acquired Fund on
the transfer; (iv) the holding periods of the Acquired Assets in the hands of
the Acquiring Fund, other than assets with respect to which gain or loss is
required to be recognized, will include in each instance the period during which
such Acquired Assets were held by the Acquired Fund; (v) no gain or loss will be
recognized by the Acquiring Fund upon its receipt of the Acquired Assets solely
in exchange for Acquiring Fund Shares and the assumption of the Assumed
Liabilities; (vi) no gain or loss will be recognized by the Acquired Fund
Shareholders upon the exchange of all of their Acquired Fund Shares for
Acquiring Fund Shares as part of the Reorganization; (vii) the aggregate tax
basis of the Acquiring Fund Shares that each Acquired Fund Shareholder receives
in the Reorganization will be the same as the aggregate tax basis of the
Acquired Fund Shares exchanged therefor; (viii) each Acquired Fund Shareholder's
holding period for the Acquiring Fund Shares received in the Reorganization will
include the period for which such shareholder held the Acquired Fund Shares
exchanged therefor, provided that the Acquired Fund Shareholder held such
Acquired Fund Shares as capital assets. Notwithstanding anything in this
Agreement to the contrary, neither the Acquired Fund nor the Acquiring Fund may
waive the condition set forth in this paragraph 8.3.
8.4 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.
9. BROKERAGE FEES AND EXPENSES
9.1 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.
9.2 Each of the Acquired Fund and the Acquiring Fund agrees to bear its
own costs in connection with the Reorganization.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Trust and the Acquired Trust each agrees that neither party
has made any representation, warranty or covenant not set forth herein or
referred to in Paragraphs 4.1 or 4.2 hereof and that this Agreement constitutes
the entire agreement between the parties.
10.2 The covenants to be performed after the Closing by both the Acquiring Trust
and the Acquired Trust shall survive the Closing. The representations and
warranties and all other covenants contained in this Agreement or in any
document delivered pursuant hereto or in connection herewith shall not survive
the consummation of the transactions contemplated hereunder.
11. TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the Acquiring
Trust and the Acquired Trust. In addition, either party may at its option
terminate this Agreement at or prior to the Closing Date:
(a) by resolution of the Acquiring Trust's Board of Trustees if circumstances
should develop that, in the good faith opinion of such Board, make proceeding
with the Agreement not in the best interests of the Acquiring Fund's
shareholders; or
(b) by resolution of the Acquired Trust's Board of Trustees if circumstances
should develop that, in the good faith opinion of such Board, make proceeding
with the Agreement not in the best interests of the Acquired Fund's
shareholders.
11.2 In the event of any such termination, there shall be no liability for
damages on the part of the Acquiring Trust, the Acquiring Fund, the Acquired
Trust or the Acquired Fund, or the trustees or officers of the Acquired Trust or
the Acquiring Trust, but, subject to Paragraph 9.2, each party shall bear the
expenses incurred by it incidental to the preparation and carrying out of this
Agreement.
12. 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 Trust and the Acquiring Trust.
13. 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 Trust and the
Acquiring Trust at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
14.1 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.
14.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without giving effect to conflict of
laws principles (other than Delaware Code Title 6 ss. 2708); provided that, in
the case of any conflict between those laws and the federal securities laws, the
latter shall govern.
14.4 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 prior 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 or 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.
* * * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first set forth above by its President
or Vice President and attested by its Secretary or Assistant Secretary.
Attest: PIONEER SERIES TRUST V,
on behalf of its series,
PIONEER GLOBAL EQUITY FUND
By: /s/Xxxxxxxxxxx X. Xxxxxx By: /s/Xxxx X. Xxxxx, Xx.
------------------------ ---------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx, Xx.
Title: Assistant Secretary Title: President
Attest: PIONEER SERIES TRUST IX,
on behalf of its series,
PIONEER EUROPE SELECT EQUITY FUND
By: /s/Xxxxxxxxxxx X. Xxxxxx By: /s/Xxxx X. Xxxxx, Xx.
------------------------ ---------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx, Xx.
Title: Assistant Secretary Title: President
SCHEDULE 4.1
SCHEDULE 4.2
