AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "AGREEMENT") is made as of
this 3rd day of August, 2001, between Pioneer Emerging Markets Fund (the
"ACQUIRING FUND"), a business trust organized under the laws of the State of
Delaware with its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and Pioneer Indo-Asia Fund, a business trust organized
under the laws of the State of Delaware with its principal place of business at
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "ACQUIRED FUND").
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368(a) of the United States Internal Revenue Code
of 1986, as amended (the "CODE"). The reorganization (the "REORGANIZATION") will
consist of (a) the transfer of all of the assets of the Acquired Fund to the
Acquiring Fund in exchange for (i) the issuance to the Acquired Fund of shares
of beneficial interest of each Class of the Acquiring Fund that corresponds to
each Class of shares of the Acquired Fund (collectively, the "ACQUIRING FUND
SHARES" and each, an "ACQUIRING FUND SHARE") , and (ii) the assumption by the
Acquiring Fund of (I) the liabilities of the Acquired Fund that are included in
the calculation of net asset value ("NAV") on the closing date set forth below
(the "CLOSING DATE") and (II) the liabilities of the Acquired Fund with respect
to its investment operations that are not required by generally accepted
accounting principles ("GAAP") to be included in the calculation of NAV
consistent with liabilities incurred by registered management investment
companies in the ordinary course of their businesses (i.e., not including any
extraordinary obligations, including, but not limited to legal proceedings,
shareholder claims and distribution payments) (the "ASSUMED LIABILITIES"), and
(b) the distribution by the Acquired Fund, on the Closing Date, or as soon
thereafter as practicable, of the Acquiring Fund Shares to the shareholders of
the Acquired Fund in liquidation of the Acquired Fund and the termination of the
Acquired Fund, all upon the terms and conditions hereinafter set forth in this
Agreement.
WHEREAS, the Acquiring Fund and the Acquired Fund are each registered
investment companies classified as management companies of the open-end type,
and the Acquired Fund owns securities that generally are assets of the character
in which the Acquiring Fund is permitted to invest;
WHEREAS, the Acquiring Fund is authorized to issue shares of beneficial
interest;
WHEREAS, the Board of Trustees of the Acquiring Fund has determined that
the exchange of all of the assets of the Acquired Fund for Acquiring Fund Shares
and the assumption of the Assumed Liabilities of the Acquired Fund by the
Acquiring Fund are in the best interests of the Acquiring Fund shareholders;
WHEREAS, the Board of Trustees of the Acquired Fund has determined that the
exchange of all of the assets of the Acquired Fund for Acquiring Fund Shares and
the assumption of the Assumed Liabilities of the Acquired Fund by the Acquiring
Fund are in the best interests of the Acquired Fund shareholders.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1.TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF THE ASSUMED LIABILITIES AND LIQUIDATION AND
TERMINATION OF THE ACQUIRED FUND.
1.1. Subject to the terms and conditions herein set forth and on the basis
of the representations and warranties contained herein, the Acquired Fund agrees
to transfer its assets as set forth in paragraph 1.2 to the Acquiring Fund free
and clear of all liens and encumbrances (other than those arising under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), liens for taxes not
yet due and contractual restrictions on the transfer of the acquired assets),
and the Acquiring Fund agrees in exchange therefor: (a) to issue to the Acquired
Fund the number of Acquiring Fund Shares of each Class, including fractional
Acquiring Fund Shares, determined (to at least two decimal places) by dividing
the value of the Acquired Fund's net assets attributable to a Class of shares
and transferred to the Acquiring Fund, computed in the manner and as of the time
and date set forth in paragraph 2.1, by the NAV of one Acquiring Fund Share of
the applicable Class, computed in the manner and as of the time and date set
forth in paragraph 2.2; and (b) to assume the Assumed Liabilities, as set forth
in paragraph 1.3. Such transactions shall take place at the closing provided for
in paragraph 3.1 (the "CLOSING").
1.2. (a) The assets of the Acquired Fund to be acquired by the Acquiring
Fund shall consist of all of its property, including, without limitation, all
goodwill, all contractual rights of the Acquired Fund, all other intangible
property owned by the Acquired Fund and originals or copies of all books and
records of the Acquired Fund.
(b) The Acquired Fund has provided the Acquiring Fund with a list of all of
the Acquired Fund's securities and other assets as of the date of this
Agreement. The Acquired Fund reserves the right to sell any of these securities
but will not, without the prior approval of the Acquiring Fund, acquire any
additional securities other than securities of the type in which the Acquiring
Fund is permitted to invest and
1
shall not acquire, without the consent of the Acquiring Fund, any securities
that are valued at "fair value" under the valuation procedures of either the
Acquired Fund or the Acquiring Fund.
1.3. The Acquired Fund will endeavor to discharge all the Acquired Fund's
known liabilities and obligations that are or will become due prior to the
Closing Date. The Acquired Fund shall prepare an unaudited statement of assets
and liabilities (the "CLOSING STATEMENT"), as of the Valuation Date (as defined
in paragraph 2.1), in accordance with GAAP consistently applied from the prior
audited period, including a calculation of the net assets of the Acquired Fund
as of the close of business on the Closing Date. The Acquiring Fund shall assume
the Assumed Liabilities.
1.4. On the Closing Date or as soon thereafter as is conveniently
practicable, the Acquired Fund shall liquidate and distribute pro rata to the
Acquired Fund's shareholders of record determined as of the close of business on
the Closing Date (the "ACQUIRED FUND SHAREHOLDERS") the Acquiring Fund Shares it
receives pursuant to paragraph 1.1. Such liquidation and distribution will be
accomplished by the Acquired Fund instructing the Acquiring Fund to transfer the
Acquiring Fund Shares then credited to the account of the Acquired Fund on the
books of the Acquiring Fund to open accounts on the share records of the
Acquiring Fund in the names of the Acquired Fund Shareholders (as provided to
the Acquiring Fund by the Acquired Fund) and representing the respective pro
rata number of the Acquiring Fund Shares due such shareholders. The Acquired
Fund shall promptly provide the Acquiring Fund with evidence of such liquidation
and distribution. All issued and outstanding shares of the Acquired Fund will
simultaneously be cancelled on the books of the Acquired Fund, although share
certificates representing interests in the Acquired Fund will represent a number
of Acquiring Fund Shares after the Closing Date as determined in accordance with
paragraph 1.1. The Acquiring Fund will not issue share certificates representing
Acquiring Fund Shares unless a shareholder specifically requests the Acquiring
Fund Shares in certificated form and, if applicable, in exchange for outstanding
certificates representing.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent. Acquiring Fund Shares will be issued in the
manner described in the Acquiring Fund's Registration Statement on Form N-14 in
the form attached to this Agreement as Annex A.
1.6. Any transfer taxes payable upon issuance of the Acquiring Fund Shares
in a name other than the registered holder of the Acquired Fund shares on the
books of the Acquired Fund as of the time of issuance shall, as a condition of
such issuance and transfer, be paid by the person to whom such Acquiring Fund
Shares are to be issued and transferred.
1.7. Any reporting responsibility of the Acquired Fund is and shall remain
the responsibility of the Acquired Fund up to and including the Closing Date and
such later date on which the Acquired Fund is terminated.
1.8. The Acquired Fund shall, following the Closing Date and the making of
all distributions pursuant to paragraph 1.4, be terminated under the laws of the
State of Delaware and in accordance with the Agreement and Declaration of Trust
(the "Declaration of Trust") and By-Laws of the Acquired Fund.
2. VALUATION
2.1. The value of the assets of the Acquired Fund to be acquired by the
Acquiring Fund hereunder shall be the value of such assets computed as of the
close of regular trading on the New York Stock Exchange, Inc. on the Closing
Date (such time and date being hereinafter called the "VALUATION DATE"), using
the valuation procedures set forth in the prospectus or statement of additional
information of the Acquired Fund as in effect on the date hereof.
2.2. The NAV of the Acquiring Fund shares shall be calculated in accordance
with the valuation procedures described in paragraph 2.1.
2.3. All computations of value shall be made by Pioneer Investment
Management, Inc., or its agent, in accordance with its regular practice as
pricing agent for the Acquired Fund.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be September , 2001, or such later date as the
parties may agree to in writing. All acts taking place at the Closing shall be
deemed to take place simultaneously as of the close of business on the Closing
Date unless otherwise provided. The Closing shall be held as of 5:00 p.m.
(Eastern time) at the offices of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, or at such other time and/or place as the parties may agree.
3.2. Portfolio securities shall be presented by the Acquired Fund to Xxxxx
Brothers Xxxxxxxx & Co. ("BBH") as custodian for the Acquiring Fund for
examination no later than three business days preceding the Valuation Date. The
Acquiring Fund may, in its sole discretion, reject any securities if it
reasonably believes that the ownership of such securities by the Acquired Fund
or the acquisition of such securities by the Acquiring Fund would violate the
investment policies and restrictions of the Acquired Fund and the Acquiring
Fund. The portfolio securities, cash and due bills shall be delivered by the
Acquired Fund to BBH as custodian for the Acquiring Fund for the account of the
Acquiring Fund at the Closing duly endorsed in proper form for transfer in such
condition as to constitute good delivery
2
thereof in accordance with the custom of brokers. The cash shall be delivered by
wire in federal funds or transferred to an account of the Acquiring Fund
specified by the Acquiring Fund.
3.3. BBH, custodian for the Acquired Fund, shall deliver at the Closing a
certificate of an authorized officer stating that: (a) the Acquired Fund's
assets have been delivered in proper form to the Acquiring Fund on the Closing
Date and (b) all necessary transfer taxes including all applicable federal and
state stock transfer stamps, if any, have been paid, or provision for payment
shall have been made, in conjunction with the delivery of portfolio securities.
3.4. In the event that on the Valuation Date (a) the primary trading market
for portfolio securities of the Acquired Fund shall be closed to trading or
trading thereon shall be restricted or (b) trading or the reporting of trading
on such market shall be disrupted so that accurate calculation based upon
available market prices of the value of the net assets of the parties hereto is
impracticable, the Closing Date shall be postponed until the first business day
after the day when trading shall have been fully resumed and reporting shall
have been restored, provided that unless the parties otherwise agree, if the
transactions contemplated by this Agreement shall not have occurred on or prior
to December 31, 2001, each party's obligations under this Agreement shall
terminate without liability to the other party, except for any liability that
may arise out of a party's breach of its obligations under this Agreement prior
to such termination.
3.5. The Acquired Fund shall deliver to the Acquiring Fund at the Closing
(or, if not reasonably available at the Closing, as soon as practicable
thereafter) a list of the names, addresses, taxpayer identification numbers and
backup withholding and nonresident alien withholding status of the Acquired Fund
Shareholders and the number and percentage ownership of outstanding shares owned
by each such shareholder immediately prior to the Closing, certified by the
President, Executive Vice President or Treasurer of the Acquired Fund as being
an accurate record of the information (i) provided by Acquired Fund Shareholders
or (ii) derived from the Acquired Fund's records by such officers or one of the
Acquired Fund's service providers.
3.6. The Acquiring Fund shall issue and deliver a confirmation evidencing
the Acquiring Fund Shares to be credited to the Acquired Fund's account on the
Closing Date to the Secretary of the Acquired Fund, or provide evidence
satisfactory to the Acquired Fund that such Acquiring Fund Shares have been
credited to the Acquired Fund's account on the books of the Acquiring Fund. At
the Closing, each party shall deliver to the other such bills of sale, checks,
assignments, share certificates, if any, receipts or other documents as such
other party or its counsel may reasonably request.
4. LIQUIDATION AND TERMINATION OF ACQUIRED FUND
4.1. As soon as practicable after the Closing, the Acquired Fund shall
liquidate and distribute pro rata to the Acquired Fund Shareholders the
Acquiring Fund Shares received pursuant to paragraph 1.1. Such liquidation and
distribution will be accomplished by the transfer of the Acquiring Fund Shares
credited to the account of the Acquired Fund to open accounts on the share
records in the names of Acquired Fund Shareholders as delivered to the Acquiring
Fund prior to the Closing Date in accordance with paragraph 3.5 and representing
the respective pro rata entitlement of each Acquired Fund Shareholder in the
Acquiring Fund Shares of the corresponding Class held by the Acquired Fund
Shareholder at the time of the Closing.
4.2. In connection with such liquidating distributions, (a) the Acquiring
Fund shall not deliver certificates representing its shares and (b) the share
transfer books of the Acquired Fund shall be permanently closed as of the
Closing Date and arrangements satisfactory to the Acquiring Fund, acting
reasonably, shall be made to restrict the further transfer of the Acquired
Fund's shares.
4.3. As soon as practicable after the liquidation of the Acquired Fund, the
Acquired Fund shall terminate its existence as a business trust under the laws
of the State of Delaware and in accordance with the Declaration of Trust and
By-Laws of the Acquired Fund.
5. REPRESENTATIONS AND WARRANTIES
5.1. The Acquired Fund represents and warrants to the Acquiring Fund, which
representations and warranties will be true and correct on the date hereof and
on the Closing Date as though made on and as of the Closing Date, as follows:
(a) The Acquired Fund is a business trust validly existing and in good
standing under the laws of the State of Delaware and has the power to own
all of its properties and assets and, subject to approval by the Acquired
Fund Shareholders, to perform its obligations under this Agreement. The
Acquired Fund is not required to qualify to do business in any jurisdiction
in which it is not so qualified or where failure to qualify would not
subject it to any material liability or disability. The Acquired Fund has
all necessary federal, state and local authorizations to own all of its
properties and assets and to carry on the business of the Acquired Fund as
now being conducted;
(b) The Acquired Fund is a registered investment company classified as
a management company of the open-end type, and its registration with the
Securities and Exchange Commission (the "COMMISSION") as an investment
company under the Investment Company Act of 1940 (the "INVESTMENT COMPANY
ACT") is in full force and effect;
3
(c) The Acquired Fund is not, and the execution, delivery and
performance of this Agreement will not result, in a material violation of
its Declaration of Trust or By-Laws or of any material agreement,
indenture, instrument, contract, lease or other undertaking with respect to
the Acquired Fund to which it is a party or by which its assets are bound;
(d) Except as included in the calculation of NAV on the Valuation
Date, the Acquired Fund has no material contracts or other commitments
(other than this Agreement) which will be terminated with liability to the
Acquired Fund on or prior to the Closing Date;
(e) No litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its
knowledge threatened against the Acquired Fund or any of the Acquired
Fund's properties or assets, except as previously disclosed in writing to,
and acknowledged in writing by, the Acquiring Fund. The Acquired Fund is
not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and adversely
affects the Acquired Fund's business or its ability to consummate the
transactions herein contemplated;
(f) The statement of assets and liabilities of the Acquired Fund as of
October 31, 2000 has been audited by Xxxxxx Xxxxxxxx LLP, independent
certified public accountants, has been prepared in accordance with GAAP
consistently applied and fairly reflects the financial condition of the
Acquired Fund as of such date; except for the Assumed Liabilities, the
Acquired Fund will not have any known or contingent liabilities on the
Closing Date;
(g) Since October 31, 2000, except as disclosed on a schedule to this
Agreement or specifically disclosed in the Acquired Fund's prospectus or
statement of additional information as in effect on the date of this
Agreement, there has not been any material adverse change in the Acquired
Fund's financial condition, assets, liabilities, business or prospects, or
any incurrence by the Acquired Fund of indebtedness, except for normal
contractual obligations incurred in the ordinary course of business or in
connection with the settlement of purchases and sales of portfolio
securities. For the purposes of this subparagraph (g), a decline in NAV per
share of the Acquired Fund arising out of its normal investment operations
or a decline in net assets of the Acquired Fund as a result of redemptions
shall not constitute a material adverse change;
(h) For each taxable year of its operation, the Acquired Fund has met
the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and has elected to be treated
as such and will qualify as such as of the Closing Date. The Acquired Fund
has not taken any action which has caused or will cause the Acquired Fund
to fail to qualify as a regulated investment company under the Code. The
Acquired Fund has not been notified that any tax return or other filing of
the Acquired Fund has been reviewed or audited by any federal, state, local
or foreign taxing authority. Except as set forth on Schedule 5.1:
(A) Within the times and in the manner prescribed by law, the
Acquired Fund has filed all federal, state and local tax returns,
including all information returns and payee statements, and all tax
returns for foreign countries, provinces and other governing bodies that
have jurisdiction to levy taxes upon it and which are required to be
filed;
(B) The Acquired Fund has paid all taxes, interest, penalties,
assessments and deficiencies which have become due or which have been
claimed to be due;
(C) All tax returns filed by the Acquired Fund constitute complete
and accurate reports of the respective tax liabilities of the Acquired
Fund or, in the case of information returns and payee statements, the
amounts required to be reported accurately set forth all items required
to be included or reflected in such returns except for such instances of
misreporting with respect to which, individually or in the aggregate,
the Acquired Fund is not required to notify any shareholder;
(D) The Acquired Fund has not waived or extended any applicable
statute of limitations relating to the assessment of federal, state,
local or foreign taxes; and
(E) The Acquired Fund has not been notified that any examinations
of the federal, state, local or foreign tax returns of the Acquired Fund
are currently in progress or threatened and no deficiencies have been
asserted or assessed against the Acquired Fund as a result of any audit
by the Internal Revenue Service or any state, local or foreign taxing
authority, and no such deficiency has been proposed or threatened;
(i) All issued and outstanding shares of the Acquired Fund are, and at
the Closing Date will be, duly and validly issued and outstanding, fully
paid and non-assessable. To the Acquired Fund's knowledge, all of the
issued and outstanding shares of the Acquired Fund will, at the time of
Closing, be held of record by the persons and in the amounts set forth in
the records of the transfer agent as provided in paragraph 3.5. The
Acquired Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any shares of the Acquired Fund, nor is
there outstanding any security convertible into any shares of the Acquired
Fund;
(j) At the Closing Date, the Acquired Fund will have good and
marketable title to the assets to be transferred to the Acquiring Fund
pursuant to paragraph 1.1 and full right, power and authority to sell,
assign, transfer and deliver such assets hereunder, and,
4
upon delivery and payment for such assets, the Acquiring Fund will acquire
good and marketable title thereto, subject to no restrictions on the full
transfer thereof, except such restrictions as might arise under the
Securities Act, other than as disclosed in writing to, and acknowledged in
writing by, the Acquiring Fund;
(k) The Acquired Fund has the power and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by all necessary
action on the part of the Acquired Fund's Board of Trustees, and, subject
to the approval of the Acquired Fund Shareholders, assuming due
authorization, execution and delivery by the Acquiring Fund, this Agreement
will constitute a valid and binding obligation of the Acquired Fund,
enforceable in accordance with its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights and to general equity principles;
(l) Any information furnished by the Acquired Fund for use in
registration statements, proxy materials and any information necessary to
compute the total return of the Acquired Fund shall be accurate and
complete in all material respects and shall comply in all material respects
with federal securities and other laws and regulations applicable thereto
or the requirements of any form for which its use is intended;
(m) The proxy statement to be included in the Acquiring Fund's
Registration Statement on Form N-14 attached hereto as Annex A (other than
information therein that relates to Pioneer Investment Management, Inc.,
the Acquiring Fund or their affiliates) will, on the effective date of that
Registration Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(n) Except as set forth on Schedule 5.1 and as will be obtained on or
prior to the Closing Date, no consent, approval, authorization or order of
any court or governmental authority is required for the consummation by the
Acquired Fund of the transactions contemplated by this Agreement;
(o) To the Acquired Fund's knowledge, all of the issued and
outstanding shares of beneficial interest of the Acquired Fund have been
offered for sale and sold in conformity with all applicable federal and
state securities laws;
(p) The Acquired Fund currently complies in all material respects with
and since its organization has complied in all material respects with the
requirements of, and the rules and regulations under, the Investment
Company Act, the Securities Act, the Securities Exchange Act of 1934 (the
"EXCHANGE ACT"), state "Blue Sky" laws and all other applicable federal and
state laws or regulations. The Acquired Fund currently complies in all
material respects with, and since its organization has complied in all
material respects with, all investment objectives, policies, guidelines and
restrictions and any compliance procedures established by the Acquired
Fund. All advertising and sales material used by the Acquired Fund complies
in all material respects with and has complied in all material respects
with the applicable requirements of the Securities Act, the rules and
regulations of the Commission, and, to the extent applicable, the Conduct
Rules of the National Association of Securities Dealers, Inc. (the "NASD")
and any applicable state regulatory authority. All registration statements,
prospectuses, reports, proxy materials or other filings required to be made
or filed with the Commission, the NASD or any state securities authorities
by the Acquired Fund have been duly filed and have been approved or
declared effective, if such approval or declaration of effectiveness is
required by law. Such registration statements, prospectuses, reports, proxy
materials and other filings under the Securities Act, the Exchange Act and
the Investment Company Act (i) are or were in compliance in all material
respects with the requirements of all applicable statutes and the rules and
regulations thereunder and (ii) do not or did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not false or misleading;
(q) The prospectus of the Acquired Fund dated March 1, 2001, and any
amendments or supplements thereto, previously furnished to the Acquiring
Fund, did not as of their dates or the dates of their distribution to the
public contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not misleading; and
(r) The Acquired Fund Tax Representation Certificate to be delivered
by the Acquired Fund to the Acquiring Fund at Closing pursuant to Section
8.4 (the "Acquired Fund Tax Representation Certificate") will not on the
Closing Date contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading.
5.2. The Acquiring Fund represents and warrants to the Acquired Fund, which
representations and warranties will be true and correct on the date hereof and
on the Closing Date as though made on and as of the Closing Date, as follows:
(a) The Acquiring Fund is a business trust, validly existing and in
good standing under the laws of the State of Delaware and has the power to
own all of its properties and assets and to perform its obligations under
this Agreement. The Acquiring Fund is not required to qualify to do
business in any jurisdiction in which it is not so qualified or where
failure to qualify would not subject it to
5
any material liability or disability. The Acquiring Fund has all necessary
federal, state and local authorizations to own all of its properties and
assets and to carry on its business as now being conducted;
(b) The Acquiring Fund is a registered investment company classified
as a management company of the open-end type, and its registration with the
Commission as an investment company under the Investment Company Act is in
full force and effect;
(c) The prospectus and statement of additional information of the
Acquiring Fund included in the Acquiring Fund's registration statement that
will be in effect on the Closing Date will conform in all material respects
with the applicable requirements of the Securities Act and the Investment
Company Act and the rules and regulations of the Commission thereunder and
will not as of its date and as of the Closing Date contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
(d) The Acquiring Fund is not, and its execution, delivery and
performance of this Agreement will not result, in a violation of its
Declaration of Trust or By-Laws or a material violation of any agreement,
indenture, instrument, contract, lease or other undertaking with respect to
the Acquiring Fund to which it is a party or by which its assets are bound;
(e) No litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its
knowledge threatened against the Acquiring Fund or any of the Acquiring
Fund's properties or assets, except as previously disclosed in writing to,
and acknowledged in writing by, the Acquired Fund. The Acquiring Fund is
not a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially and adversely
affects the Acquiring Fund's business or its ability to consummate the
transactions herein contemplated;
(f) The Acquiring Fund has the power and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement has been duly authorized by all necessary
action, if any, on the part of the Acquiring Fund's Board of Trustees, and,
assuming due authorization, execution and delivery by the Acquired Fund,
this Agreement will constitute a valid and binding obligation of the
Acquiring Fund, enforceable in accordance with its terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights and to general equity
principles;
(g) The Acquiring Fund Shares to be issued and delivered to the
Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant
to the terms of this Agreement, will at the Closing Date have been duly
authorized and, when so issued and delivered, will be duly and validly
issued Acquiring Fund Shares and will be fully paid and non-assessable; the
Acquiring Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any Acquiring Fund Shares, nor is there
outstanding any security convertible into any of the Acquiring Fund Shares;
(h) The information to be furnished by the Acquiring Fund for use in
proxy materials and other documents which may be necessary in connection
with the transactions contemplated hereby shall be accurate and complete in
all material respects and shall comply in all material respects with
federal securities and other laws and regulations applicable thereto or the
requirements of any form for which its use is intended;
(i) The Acquiring Fund is a qualified institutional buyer as defined
in Rule 144A under the Securities Act;
(j) 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 of 1940 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;
(k) For each taxable year of its operation, the Acquiring Fund has met
the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and has elected to be treated
as such and will qualify as such as of the Closing Date. The Acquiring Fund
has not taken any action which has caused or will cause the Acquiring Fund
to fail to qualify as a regulated investment company under the Code. The
Acquiring Fund has not been notified that any tax return or other filing of
the Acquiring Fund has been reviewed or audited by any federal, state,
local or foreign taxing authority. Except as set forth on Schedule 5.1:
(A) Within the times and in the manner prescribed by law, the
Acquiring Fund has filed all federal, state and local tax returns,
including all information returns and payee statements, and all tax
returns for foreign countries, provinces and other governing bodies that
have jurisdiction to levy taxes upon it and which are required to be
filed;
6
(B) The Acquiring Fund has paid all taxes, interest, penalties,
assessments and deficiencies which have become due or which have been
claimed to be due;
(C) All tax returns filed by the Acquiring Fund constitute complete
and accurate reports of the respective tax liabilities of the Acquiring
Fund or, in the case of information returns and payee statements, the
amounts required to be reported accurately set forth all items required
to be included or reflected in such returns except for such instances of
misreporting with respect to which, individually or in the aggregate,
the Acquiring Fund is not required to notify any shareholder;
(D) The Acquiring Fund has not waived or extended any applicable
statute of limitations relating to the assessment of federal, state,
local or foreign taxes; and
(E) The Acquiring Fund has not been notified that any examinations
of the federal, state, local or foreign tax return of the Acquiring Fund
are currently in progress or threatened and no deficiencies have been
asserted or assessed against the Acquiring Fund as a result of any audit
by the Internal Revenue Service or any state, local or foreign taxing
authority, and no such deficiency has been proposed or threatened;
(l) Immediately prior to the Closing, the Acquiring Fund will be in
compliance in all material respects with all applicable laws, rules and
regulations, including, without limitation, the Investment Company Act, the
Securities Act, the Exchange Act and all applicable state securities laws.
Immediately prior to the Closing, the Acquiring Fund will be in compliance
in all material respects with the applicable investment policies and
restrictions set forth in its registration statement currently in effect
and will have calculated its NAV in accordance with the Acquiring Fund's
registration statement;
(m) The Acquiring Fund Shares to be issued pursuant to this Agreement
shall on the Closing Date be duly registered under the Securities Act by a
Registration Statement on Form N-14 of the Acquiring Fund then in effect
and qualified for sale under the applicable state securities laws;
(n) The Acquiring Fund Shares to be issued pursuant to this Agreement
are duly authorized and on the Closing Date will be validly issued and
fully paid and non-assessable and will conform in all material respects to
the description thereof contained in the Acquiring Fund's Registration
Statement on Form N-14. On the Closing Date, the Acquiring Fund shall not,
except as provided herein, have outstanding any warrants, options,
convertible securities or any other type of right pursuant to which any
person could acquire Acquiring Fund Shares; and
(o) The Acquiring Fund Tax Representation Certificate to be delivered
by the Acquiring Fund to the Acquired Fund at Closing pursuant to Section
7.3 (the "Acquiring Fund Tax Representation Certificate") will not on the
Closing Date contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading.
6. COVENANTS OF EACH OF THE PARTIES
6.1. The Acquired Fund will operate its business in the ordinary course
between the date hereof and the Closing Date. It is understood that such
ordinary course of business will include the declaration and payment of
customary dividends and distributions and any other dividends and distributions
necessary or advisable (except to the extent distributions that are not
customary may be limited by representations made in connection with the issuance
of the tax opinion described in paragraph 9.5 hereof), in each case payable
either in cash or in additional shares.
6.2. The Acquired Fund will call a meeting of the Acquired Fund
Shareholders to consider and act upon the matters set forth in the proxy
statement. Each of the Acquired Fund and the Acquiring Fund will use reasonable
efforts to promptly prepare and file with the Commission a Registration
Statement on Form N-14 relating to the transactions contemplated by this
Agreement.
6.3. The Acquired Fund covenants that the Acquiring Fund Shares to be
issued hereunder are not being acquired for the purpose of making any
distribution thereof other than in accordance with the terms of this Agreement.
6.4. The Acquired Fund will assist the Acquiring Fund in obtaining such
information as the Acquiring Fund reasonably requests concerning the beneficial
ownership of the Acquired Fund's shares.
6.5. Subject to the provisions of this Agreement, each of the Acquired Fund
and the Acquiring Fund will take, or cause to be taken, all actions, and do or
cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
6.6. Neither the Acquired Fund nor the Acquiring Fund shall take any action
that is inconsistent with the representations set forth in, with respect to the
Acquired Fund, the Acquired Fund Tax Representation Certificate, and with
respect to the Acquiring Fund, the Acquiring Fund Tax Representation
Certificate, to the extent such action would prevent the Reorganization from
qualifying as a "reorganization" under Section 368(a) of the Code.
7
6.7. The Acquired Fund shall furnish to the Acquiring Fund on the Closing
Date the Closing Statement, which statement shall be prepared in accordance with
GAAP consistently applied and shall be certified by the Acquired Fund's
Treasurer or any Assistant Treasurer. As promptly as practicable, but in any
case within 90 days after the Closing Date, the Acquired Fund shall furnish to
the Acquiring Fund, in such form as is reasonably satisfactory to the Acquiring
Fund, a statement of the earnings and profits of the Acquired Fund for federal
income tax purposes, and of any capital loss carryovers and other items that
will be carried over to the Acquiring Fund as a result of Section 381 of the
Code, and which statement will be certified by the Treasurer of the Acquired
Fund.
6.8. The Acquired Fund shall provide the Acquiring Fund with information
reasonably necessary for the preparation of a prospectus, which will include the
proxy statement, referred to in paragraph 5.1(m), all to be included in the
Acquiring Fund's Registration Statement on Form N-14, in compliance with the
Securities Act, the Exchange Act and the Investment Company Act in connection
with the meeting of the Acquired Fund Shareholders to consider approval of this
Agreement and the transactions contemplated herein.
6.9. The Acquired Fund shall maintain errors and omissions insurance
covering management of the Acquired Fund prior to and including the Closing
Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all of the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following further
conditions, unless waived by the Acquired Fund in writing:
7.1. All representations and warranties made in this Agreement by the
Acquiring Fund shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date with the same force and effect as if made
on and as of the Closing Date;
7.2. The Acquiring Fund shall have delivered to the Acquired Fund a
certificate executed in its name by its President, Executive Vice President,
Treasurer or any Assistant Treasurer, in form and substance reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date, to the
effect that the representations and warranties made in this Agreement by 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; and
7.3 The Acquiring Fund shall have delivered to the Acquired Fund an
Acquiring Fund Tax Representation Certificate substantially in the form attached
to this Agreement as Annex B concerning certain tax-related matters with respect
to the Acquiring Fund.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquired Fund of all of its obligations hereunder on or before the Closing Date
and, in addition thereto, the following further conditions:
8.1. All representations and warranties made in this Agreement by the
Acquired Fund shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date with the same force and effect as if made
on and as of the Closing Date;
8.2. The Acquired Fund shall have delivered to the Acquiring Fund a
statement of the Acquired Fund's assets and liabilities showing the federal tax
bases and holding periods as of the Closing Date, certified by the Acquired
Fund's Treasurer or any Assistant Treasurer;
8.3. The Acquired Fund shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by its President, Executive Vice
President, Treasurer or any Assistant Treasurer, in form and substance
reasonably satisfactory to the Acquiring Fund and dated as of the Closing Date,
to the effect that the representations and warranties made in this Agreement are
true and correct in all material respects at and as of the Closing Date, except
as they may be affected by the transactions contemplated by this Agreement; and
8.4. The Acquired Fund shall have delivered to the Acquiring Fund an
Acquired Fund Tax Representation Certificate substantially in the form attached
to this Agreement as Annex C concerning certain tax-related matters with respect
to the Acquired Fund.
9. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH OF THE PARTIES
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to either party hereto, the other party to this
Agreement shall, at its option, not be required to consummate the transactions
contemplated by this Agreement:
9.1. This Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the holders of the outstanding shares of
the Acquired Fund in accordance with the provisions of each of the Acquired
Fund's Declaration of Trust and By-
8
Laws, and certified copies of the votes evidencing such approval shall have been
delivered to the Acquiring Fund. Notwithstanding anything herein to the
contrary, neither party hereto may waive the conditions set forth in this
paragraph 9.1;
9.2. On the Closing Date, no action, suit or other proceeding shall be
pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with, this
Agreement or the transactions contemplated herein;
9.3. All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities (including those of
the Commission and of state Blue Sky and securities authorities) deemed
necessary by either party hereto to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of
either party hereto, provided that either party may for itself waive any of such
conditions;
9.4. The Acquiring Fund's Registration Statement on Form N-14 shall have
become effective under the Securities Act and no stop orders suspending the
effectiveness thereof shall have been issued and, to the best knowledge of the
parties hereto, no investigation or proceeding for that purpose shall have been
instituted or be pending, threatened or contemplated under the Securities Act;
9.5. The parties shall have received a favorable opinion of Xxxx and Xxxx
LLP, addressed to the Acquiring Fund and the Acquired Fund and satisfactory to
the Acquiring Fund and the Acquired Fund, substantially to the effect that for
federal income tax purposes, on the basis of the facts, representations and
assumptions set forth in such opinion, the acquisition by the Acquiring Fund of
all of the assets of the Acquired Fund solely in exchange for the issuance of
Acquiring Fund Shares to the Acquired Fund and the assumption of all of the
Assumed Liabilities by the Acquiring Fund, followed by the distribution by the
Acquired Fund, in liquidation of the Acquired Fund, of Acquiring Fund Shares to
the Acquired Fund Shareholders in exchange for their Acquired Fund shares of
beneficial interest and the termination of the Acquired Fund, will constitute a
reorganization within the meaning of Section 368(a) of the Code.
10. BROKERAGE FEES AND EXPENSES
10.1. Each party hereto represents and warrants to the other party hereto
that there are no brokers or finders entitled to receive any payments in
connection with the transactions provided for herein.
10.2. The parties have been informed by Pioneer Investment Management, Inc.
that it will pay all expenses incurred in connection with the Reorganization
(including, but not limited to, the preparation of the proxy statement and
solicitation expenses).
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The parties hereto agree that no party has made any representation,
warranty or covenant not set forth herein or referred to in paragraph 9.6 hereof
and that this Agreement constitutes the entire agreement between the parties.
11.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
12. TERMINATION
12.1. This Agreement may be terminated at any time prior to the Closing
Date by: (a) the mutual agreement of the Acquired Fund and the Acquiring Fund;
(b) any party in the event that the other party hereto shall breach any material
representation, warranty or agreement contained herein to be performed at or
prior to the Closing Date and has not cured such breach within 10 days of notice
thereof; or (c) a condition herein expressed to be precedent to the obligations
of the terminating party has not been met and it reasonably appears that it will
not or cannot be met.
12.2. In the event of any such termination, there shall be no liability for
damages on the part of any party hereto or their respective Trustees or officers
to the other party, but, except as provided in Section 10, each shall bear the
expenses incurred by it incidental to the preparation and carrying out of this
Agreement.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by the authorized officers of the
Acquired Fund and the Acquiring Fund; provided, however, that following the
meeting of the Acquired Fund Shareholders called by the Acquired Fund pursuant
to paragraph 6.2 of this Agreement, no such amendment may have the effect of
changing the provisions for determining the number of the Acquiring Fund Shares
to be issued to the Acquired Fund Shareholders under this Agreement to the
detriment of the Acquired Fund Shareholders without their further approval.
9
14. NOTICES
Any notice, report, statement or demand required or permitted by any
provision of this Agreement shall be in writing and shall be given by hand,
prepaid telegraph, telecopy or certified mail addressed to the Acquired Fund and
the Acquiring Fund at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
15. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF
LIABILITY
15.1. The article and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
15.3. This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
15.4. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
either party without the written consent of the other party hereto. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give any person, firm, corporation or other entity, other than the parties
hereto and their respective successors and assigns, any rights or remedies under
or by reason of this Agreement.
15.5 It is expressly agreed that the obligations of the Acquiring Fund and
the Acquired Fund shall not be binding upon any of their respective Trustees,
shareholders, nominees, officers, agents or employees personally, but bind only
the property of the Acquiring Fund or the Acquired Fund, as the case may be, as
provided in the Declaration of Trust of the Acquiring Fund and the Acquired
Fund, respectively. The execution and delivery of this Agreement have been
authorized by the Trustees of each of the Acquiring Fund and the Acquired Fund
and this Agreement has been executed by authorized officers of the Acquiring
Fund and the Acquired Fund acting as such, and neither such authorization by
such Trustees nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on any
of them personally, but shall bind only the property of the Acquiring Fund and
the Acquired Fund, as the case may be, as provided in the Declaration of Trust
of the Acquiring Fund and the Acquired Fund, respectively.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its President or Executive Vice President and attested by its
Secretary or Assistant Secretary.
Attested PIONEER INDO-ASIA FUND
By:/s/ Xxxxxx X. Xxxxx, Sec. By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: Executive Vice President
Attest: PIONEER EMERGING MARKETS FUND
By: /s/ Xxxxxx X. Xxxxx, Sec. By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: Executive Vice President
10
