EXHIBIT 1
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
the 28th day of August 2009, by and between Pioneer Series Trust II, a Delaware
statutory trust (the "Acquiring Trust"), on behalf of its series, Pioneer Growth
Opportunities Fund (the "Acquiring Fund"), with its principal place of business
at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Pioneer Small Cap Value
Fund, a Delaware statutory trust (the "Acquired Trust"), on behalf of its
series, Pioneer Small Cap Value 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, Class R 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 and the Acquired Trust 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 August 28, 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 the sole 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 November 30, 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 May 31, 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) For each taxable year of its existence, including the taxable year
ending on the Closing Date, the Acquired Trust 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 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 December 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 June 30, 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
Acquiring 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 Acquiring 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 Trust 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 Trust 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 or
Acquired Trust, 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; 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 its own behalf and 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; 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 Trust 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 Trust 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 Trust'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 Trust 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 Trust 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 Trust, on behalf of the Acquired Fund, shall have
distributed to the Acquired Fund 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 The parties have been informed by Pioneer Investment Management, Inc.
that it will pay 50% of the expenses incurred in connection with the
Reorganization. Each of the Acquired Fund and the Acquiring Fund agrees to pay
25% of the expenses incurred 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 ? 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 SMALL CAP VALUE FUND,
on behalf of its series,
PIONEER SMALL CAP VALUE 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 II,
on behalf of its series,
PIONEER GROWTH OPPORTUNITIES 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
None
SCHEDULE 4.2
None
