AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made this 7th day
of January, 2004, by and between Pioneer Series Trust I, a Delaware statutory
trust (the "Acquiring Trust") on behalf of its series Pioneer Oak Ridge Large
Cap Growth Fund (the "Acquiring Fund"), with its principal place of business at
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Oak Ridge Funds, Inc., a
Maryland corporation (the "Company"), on behalf of Oak Ridge Large Cap Equity
Fund (the "Acquired Fund"), a series of the Company with its principal place of
business at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 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 be and is adopted as a plan of "reorganization" as
such term is used in Section 368(a) of the United States Internal Revenue Code
of 1986, as amended (the "Code"). The reorganization (the "Reorganization") will
consist of (1) the transfer of all of the assets of the Acquired Fund to the
Acquiring Fund in exchange solely for (A) the issuance of Class A 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 (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 on the Closing Date with respect to its investment operations (but
not the Acquired Fund's administrative or other non-investment affairs) that are
both (a) not required by generally accepted accounting principles ("GAAP") to be
included in the calculation of NAV and (b) are consistent with liabilities
incurred by registered management investment companies in the ordinary course of
their investment operations (i.e., not including any extraordinary obligations,
including, but not limited to legal proceedings, shareholder claims and
distribution payments) (collectively, the "Assumed Liabilities"), 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 liquidation and dissolution of the Acquired Fund, all upon the
terms and conditions hereinafter set forth in this Agreement.
WHEREAS, the Acquiring Trust and the Company are each registered investment
companies classified as management companies of the open-end type, and the
Acquired Fund owns securities that are generally 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 Directors of the Company 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 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 Class A Shares,
including fractional Acquiring Fund Shares, with an aggregate net asset value
determined in the manner set forth in Paragraph 2.2 equal to the aggregate net
asset value attributable to the Class A Shares of the Acquired Fund; and (ii) to
assume the Assumed Liabilities, as set forth in Paragraph 1.3. 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 of the Acquired Fund or the Company 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
(or to the extent agreed upon between the Company and the Acquiring Fund, be
provided access to) copies of all records that the Company 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") 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 8.5 hereof), but will not, without the prior
approval of the Acquiring Fund, acquire any additional securities of the type in
which the Acquiring Fund is not permitted to invest in accordance with its
fundamental investment policies and restrictions or 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.
The Acquiring Fund shall assume all of the Assumed Liabilities at Closing.
1.4 On or as soon after the Closing Date as is conveniently practicable (the
"Liquidation Date"), the Company shall liquidate the Acquired Fund and
distribute pro rata to its shareholders of record (the "Acquired Fund
Shareholders"), determined as of the close of regular trading on the New York
Stock Exchange on the Closing Date, to the Class A Acquired Fund Shareholders,
the Class A Acquiring Fund Shares received by the Acquired Fund pursuant to
Paragraph 1.1 hereof. Such liquidation and distribution will be accomplished by
the Company 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 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 such Acquired Fund Shareholders. The Company 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 and the Acquired
Fund will be dissolved. The Acquiring Fund shall not issue certificates
representing the Acquiring Fund Shares in connection with such exchange.
1.5 Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's transfer agent for its Class A shares. The Acquired Fund
Shareholders holding certificates representing their ownership of common shares
of the Acquired Fund shall surrender such certificates or deliver an affidavit
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with respect to lost certificates in such form and accompanied by such surety
bonds as the Acquired Fund may require (collectively, an "Affidavit"), to
Pioneer Investment Management Shareholder Services, Inc. prior to the Closing
Date. Any Acquired Fund share certificate that remains outstanding on the
Closing Date shall be deemed to be cancelled, shall no longer evidence ownership
of shares of beneficial interest of the Acquired Fund, but shall evidence
ownership of Acquiring Fund Shares as determined in accordance with Paragraph
1.1. Unless and until any such certificate shall be so surrendered or an
Affidavit relating thereto shall be delivered by an Acquired Fund Shareholder,
dividends and other distributions payable by the Acquiring Fund subsequent to
the Liquidation Date with respect to Acquiring Fund Shares shall be paid to such
Acquired Fund Shareholder, but such Acquired Fund Shareholder may not redeem or
transfer Acquiring Fund Shares received in the Reorganization. The Acquiring
Fund will not issue share certificates in the Reorganization.
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 The Acquired Fund shall effect, following the Closing Date, the transfer of
the Acquired Assets by the Acquired Fund to the Acquiring Fund, the assumption
of the Assumed Liabilities by the Acquiring Fund, and the distribution of the
Acquiring Fund Shares by the Acquired Fund to the Acquired Fund Shareholders
pursuant to Paragraph 1.4, and the Acquired Fund shall be dissolved under the
laws of the State of Maryland.
1.8 Any reporting responsibility of the Company 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, Tax Returns
(as defined in Paragraph 4.1), 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 Company.
2. VALUATION
2.1 The NAV of the Acquiring Fund Shares and the NAV of the Acquired Assets
shall, in each case, be determined as of the close of business (4:00 p.m.,
Boston time) on the Closing Date (the "Valuation Time"). The NAV of each
Acquiring Fund Share shall be computed by Pioneer Investment Management, Inc.
(the "Acquiring Fund Adviser") in the manner set forth in the Acquiring Fund's
Declaration of Trust (the "Declaration"), or By-Laws, and the Acquiring Fund's
then-current prospectus and statement of additional information; provided,
however, if the Acquiring Fund has no assets as of the Closing Date (other than
a nominal amount of assets represented by shares issued to the Acquiring Fund
Adviser, or its affiliate, as the initial shareholder of the Acquiring Fund),
the NAV of each Acquiring Fund Share shall be the same as the NAV of each share
of the Acquired Fund. The NAV of the Acquired Assets shall be computed by U.S.
Bancorp Fund Services, LLC (the "Acquired Fund Administrator") by calculating
the value of the Acquired Assets and by subtracting therefrom the amount of the
liabilities of the Acquired Fund on the Closing Date included on the face of the
Statement of Assets and Liabilities of the Acquired Fund delivered pursuant to
Section 5.7 (the "Statement of Assets and Liabilities"), said assets and
liabilities to be valued in the manner set forth in the Acquired Fund's then
current prospectus and statement of additional information. The Acquiring Fund
Adviser shall confirm the NAV of the Acquired Assets.
2.2 The number 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 Assets, as determined in accordance with
Paragraph 2.1, by the NAV of each Acquiring Fund Share, as determined in
accordance with Paragraph 2.1.
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2.3 The Acquiring Fund and the Acquired Fund shall cause the Acquiring Fund
Adviser and the Acquired Fund Administrator, respectively, to deliver a copy of
its valuation report to the other party at Closing. All computations of value
shall be made by the Acquiring Fund Adviser and the Acquired Fund Administrator
in accordance with its regular practice as pricing agent for the Acquiring Fund
and the Acquired Fund, respectively.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be February 13, 2004 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 5:00 p.m. (Eastern time) on the
Closing Date unless otherwise provided (the "Closing"). The Closing shall be
held at the offices of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, or at such other place as the parties may agree.
3.2 Portfolio securities that are not held in book-entry form in the name of
U.S. Bank, N.A. (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
business days preceding the Closing Date. Portfolio securities which are not
held in book-entry form 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 to the Acquiring Fund by the Acquired Fund Custodian by
recording the transfer of beneficial ownership thereof on the Acquired Fund
Custodian's records.
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
shall have been made in conjunction with the delivery of portfolio securities as
part of the Acquired Assets. Any cash delivered shall be in the form of currency
or by the Acquired Fund Custodian crediting the Acquiring Fund's account
maintained with the Acquiring Fund Custodian with immediately available funds by
wire transfer pursuant to instruction delivered prior to Closing.
3.4 In the event that 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 Assets
pursuant to Paragraph 2.1 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.
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 shares of
beneficial interest of the Acquired Fund owned by each such Acquired Fund
Shareholder as of the Valuation Time, certified by the President or a Secretary
of the Company 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 Company's records by such officers or one of the
Company'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
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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 hereto, the Company, on behalf of the
Acquired Fund, represents, warrants and covenants to the Acquiring Fund, which
representations, warrantees and covenants 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 series of the Company. The Company is a corporation
validly existing and in good standing under the laws of the State of
Maryland 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 subject it to any material liability or
disability. Each of the Company and 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 Company 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. The Acquired Fund is a diversified investment company under
the Investment Company Act;
(c) The Company is not in violation of, and the execution, delivery and
performance of its obligations under this Agreement in respect of the
Acquired Fund will not result in a violation of, any provision of the
Company's Articles of Incorporation or By-Laws or any material agreement,
indenture, instrument, contract, lease or other undertaking with respect
to the Acquired Fund to which the Company 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. The Acquired Fund knows of no facts which might form
the basis for the institution of such proceedings. Neither the Company nor
the Acquired 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 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) The Acquired Fund has no material contracts or other commitments (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) which will not be terminated 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 income and changes in net asset value as of and for
the period ended November 30, 2002 has been audited by
PricewaterhouseCoopers, independent certified public accountants, and are
in accordance with 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 of the Acquired Fund to be delivered as of the Closing Date
pursuant to Paragraph 5.7 will be in accordance with GAAP consistently
applied and will fairly reflect, in all
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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 Fund to make the certifications
required by the Xxxxxxxx-Xxxxx Act, and no deficiency, weakness, fraud,
change, event or other factor exists that will be required to be disclosed
in the Acquiring Fund's Form N-CSR after the Closing Date;
(g) Since November 30, 2002, except as specifically disclosed in the Acquired
Fund's prospectus, statement of additional information as in effect on the
date of this Agreement, or in the Acquired Fund's semi-annual report for
the period ended May 31, 2003, 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 share of the Acquired Fund arising out of its normal
investment operations or a decline in market values of securities in the
Acquired Fund's portfolio or a decline in net assets of the Acquired Fund
as a result of redemptions shall not constitute a material adverse change;
(h) (A) For each taxable year of its operation since its inception
(including the current taxable year), 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 and will satisfy the
diversification requirements of Section 851(b)(3) of the Code without
regard to the last sentence of Section 851(d) of the Code. The Acquired
Fund has not taken any action, caused any action to be taken or caused any
action to fail to be taken which action or failure could cause the
Acquired Fund to fail to qualify as a regulated investment company under
the Code;
(B) Within the times and in the manner prescribed by law, the
Acquired Fund has properly filed on a timely basis all Tax Returns (as
defined below) that it was required to file, and all such Tax Returns were
complete and accurate in all respects. The Acquired Fund has not been
informed by any jurisdiction that the jurisdiction believes that the
Acquired Fund was required to file any Tax Return that was not filed; and
the Acquired Fund does not know of any basis upon which a jurisdiction
could assert such a position;
(C) The Acquired Fund has timely paid, in the manner prescribed by
law, all Taxes (as defined below), which were due and payable or which
were claimed to be due;
(D) All Tax Returns filed by the Acquired Fund constitute complete
and accurate reports of the respective Tax liabilities and all attributes
of the Acquired Fund or, in the case of information returns and payee
statements, the amounts required to be reported, and accurately set forth
all items required to be included or reflected in such returns;
(E) The Acquired Fund has not waived or extended any applicable
statute of limitations relating to the assessment or collection of Taxes;
(F) The Acquired Fund has not been notified that any examinations of
the 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,
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local or foreign taxing authority, and, to its knowledge, no such
deficiency has been proposed or threatened;
(G) The Acquired Fund has no actual or potential liability for any
Tax obligation of any taxpayer other than itself. Acquired Fund is not and
has never been a member of a group of corporations with which it has filed
(or been required to file) consolidated, combined or unitary Tax Returns.
The Acquired Fund is not a party to any Tax allocation, sharing, or
indemnification agreement;
(H) The unpaid Taxes of the Acquired Fund for tax periods through
the Closing Date do not exceed the accruals and reserves for Taxes
(excluding accruals and reserves for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the Statement
of Assets and Liabilities, rather than in any notes thereto (the "Tax
Reserves"). All Taxes that the Acquired Fund is or was required by law to
withhold or collect have been duly withheld or collected and, to the
extent required, have been timely paid to the proper governmental agency;
(I) The Acquired Fund has delivered to the Acquiring Fund or made
available to the Acquiring Fund complete and accurate copies of all Tax
Returns of the Acquired Fund, together with all related examination
reports and statements of deficiency for all periods not closed under the
applicable statutes of limitations and complete and correct copies of all
private letter rulings, revenue agent reports, information document
requests, notices of proposed deficiencies, deficiency notices, protests,
petitions, closing agreements, settlement agreements, pending ruling
requests and any similar documents submitted by, received by or agreed to
by or on behalf of the Acquired Fund. The Acquired Fund has disclosed on
its federal income Tax Returns all positions taken therein that could give
rise to a substantial understatement of federal income Tax within the
meaning of Section 6662 of the Code;
(J) The Acquired Fund has not undergone, has not agreed to undergo,
and is not required to undergo (nor will it be required as a result of the
transactions contemplated in this Agreement to undergo) a change in its
method of accounting resulting in an adjustment to its taxable income
pursuant to Section 481 of the Code. The Acquired Fund will not be
required to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date as a result of any (i) change in method of
accounting for a taxable period ending on or prior to the Closing Date
under Section 481(c) of the Code (or any corresponding or similar
provision of state, local or foreign income Tax law); (ii) "closing
agreement" as described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or foreign income Tax law) executed
on or prior to the Closing Date; (iii) installment sale or open
transaction disposition made on or prior to the Closing Date; or (iv)
prepaid amount received on or prior to the Closing Date;
(K) The Acquired Fund has not taken or agreed to take any action,
and is not aware of any agreement, plan or other circumstance, that is
inconsistent with the representations set forth in Annex B;
(L) There are (and as of immediately following the Closing there
will be) no liens on the assets of the Acquired Fund relating to or
attributable to Taxes, except for Taxes not yet due and payable;
(M) The Tax bases of the assets of the Acquired Fund are accurately
reflected on the Acquired Fund's Tax books and records;
(N) The Acquired Fund has not incurred (or been allocated) an
"overall foreign loss" as defined in Section 904(f)(2) of the Code which
has not been previously recaptured in full as provided in Sections
904(f)(2) and/or 904(f)(3) of the Code;
(O) The Acquired Fund is not a party to a gain recognition agreement
under Section 367 of the Code;
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(P) The Acquired Fund does not own any interest in an entity that is
characterized as a partnership for income tax purposes;
(Q) The Acquired Fund's Tax attributes are not limited under the
Code (including but not limited to any capital loss carry forward
limitations under Sections 382 or 383 of the Code and the Treasury
Regulations thereunder) or comparable provisions of state law, except as
set forth on Schedule 4.1; and
(R) For purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies or other similar assessments or liabilities,
including without limitation income, gross receipts, ad valorem, premium,
value-added, excise, real property, personal property, sales, use,
transfer, withholding, employment, unemployment, insurance, social
security, business license, business organization, environmental, workers
compensation, payroll, profits, license, lease, service, service use,
severance, stamp, occupation, windfall profits, customs, duties, franchise
and other taxes imposed by the United States of America or any state,
local or foreign government, or any agency thereof, or other political
subdivision of the United States or any such government, and any interest,
fines, penalties, assessments or additions to tax resulting from,
attributable to or incurred in connection with any tax or any contest or
dispute thereof; and "Tax Returns" shall mean all reports, returns,
declarations, statements or other information required to be supplied to a
governmental or regulatory authority or agency, or to any other person, in
connection with Taxes and any associated schedules or work papers produced
in connection with such items.
(i) The authorized capital of the Acquired Fund consists of 500,000,000 shares
of Common Stock, $0.01 par value per share. All issued and outstanding
shares of Common Stock of the Acquired Fund are, and at the Closing Date
will be, duly and validly issued and outstanding, fully paid and
nonassessable by the Acquired Fund. All of the issued and outstanding
shares of Common Stock 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
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 of its shares of the
Acquired Fund, nor is there outstanding any security convertible into any
of its shares of the Acquired Fund;
(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 Company has the corporate 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 Company's Board of Directors, 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) The information to be furnished by the Acquired Fund to the Acquiring Fund
for use in applications for orders, registration statements, proxy
materials 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 and shall comply in all material respects with federal securities
and other laws and regulations applicable thereto;
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(m) The information included in the proxy statement (the "Proxy Statement")
forming part of the Acquiring Fund's Registration Statement on Form N-14
filed in connection with this Agreement (the "Registration Statement")
that has been furnished by the Acquired Fund to the Acquiring Fund for
inclusion in the Registration Statement, on the effective date of that
Registration Statement and on the Closing Date, will conform in all
material respects to the applicable requirements of the Securities Act,
the Securities Exchange Act of 1934 as amended (the "Exchange Act"), and
the Investment Company Act and the rules and regulations of the Commission
thereunder and will 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) Upon the effectiveness of the Registration Statement, no consent,
approval, authorization or order of any court or governmental authority is
required for the consummation by the Company or the Acquired Fund of the
transactions contemplated by this Agreement;
(o) All of the issued and outstanding shares of Common Stock of the Acquired
Fund have been offered for sale and sold in conformity with all applicable
federal and state securities laws, except as may have been previously
disclosed in writing to the Acquiring Fund;
(p) The prospectus and statement of additional information of the Acquired
Fund, each dated March 31, 2003 (collectively, the "Acquired Fund
Prospectus"), 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 misleading;
(q) 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 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 Company with respect to the
Acquired Fund. All advertising and sales material used by the Acquired
Fund complies in all material respects with and has complied in all
material respects with the applicable requirements of the Securities Act,
the Investment Company 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;
(r) The Acquired Fund has previously provided to the Acquiring Fund (and at
the Closing will provide an update through the Closing Date of such
information) data which supports a calculation of the Acquired Fund's
total return for all periods since the organization of the Acquired Fund.
Such data has been prepared in accordance in all material respects with
the requirements of the Investment Company Act and the regulations
thereunder and the rules of the NASD;
9
(s) 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
(t) The Acquired Fund tax representation certificate to be delivered by the
Acquired Fund to the Acquiring Fund and Xxxx and Xxxx 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 hereto, the Acquiring Trust on behalf of
the Acquiring Fund represents, warrants and covenants to the Acquired Fund,
which representations, warranties and covenants 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 Trust is a statutory trust duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Acquiring Fund is a series of the Acquiring Trust and has the power to own
all of its properties and assets and to perform the 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. Each of
the Acquiring Trust and 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. The Acquiring Fund will
have no issued or outstanding shares prior to the Closing Date, other than
those issued to Pioneer Investment Management, Inc. (or one of its
affiliates) which shall be duly and validly issued and outstanding, fully
paid and non-assessable by the Acquiring Fund;
(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 Acquiring Fund's registration statement on Form N-1A 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;
(d) The Registration Statement, the Proxy Statement and statement of
additional information with respect to the Acquiring Fund, each dated
January 9, 2004, and any amendments or supplements thereto in effect on or
prior to the Closing Date included in the Registration Statement (other
than written information furnished by the Acquired Fund for inclusion
therein, as covered by the Acquired Fund's warranty in Paragraph 4.1(m)
hereof) will conform 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 thereunder. Neither the
Registration Statement nor the Proxy Statement (other than written
information furnished by the Acquired Fund for inclusion therein, as
covered by the Acquired Fund's warranty in Paragraph 4.1(m) hereof)
includes any untrue statement of a material fact or omits to state any
material
10
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under 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
will not result in a 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.
The Acquiring Fund knows of no facts which might form the basis for the
institution of such proceedings. 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 adversely affects the Acquiring Fund's
business or its ability to consummate the transactions contemplated
herein;
(g) The Acquiring Fund intends to elect to qualify as a regulated investment
company under Section 851 of the Code. The Acquiring 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
Exchange Act, state "Blue Sky" laws and all other applicable federal and
state laws or regulations. The Acquiring Trust 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
Acquiring Trust with respect to the Acquiring 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 Investment Company Act, the rules
and regulations of the Commission, and, to the extent applicable, the
Conduct Rules of 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 Acquiring 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;
(h) 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 duly and validly issued, 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;
(i) The Acquiring Trust has the trust 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 Acquiring Trust's Board of Trustees, and,
assuming due authorization, execution and delivery by the Acquired Fund,
this Agreement will constitute a valid and
11
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;
(j) The information to be furnished by the Acquiring Fund or the Acquiring
Fund Adviser for use in applications for orders, registration statements,
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, 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;
(k) 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 the Agreement by
the Acquiring Fund, except for the registration of the Acquiring Fund
Shares under the Securities Act and the Investment Company Act;
(l) 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;
and
(m) The Acquiring Fund tax representation certificate to be delivered by the
Acquiring Fund to the Acquired Fund and Xxxx and Xxxx LLP at Closing
pursuant to Section 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 EACH OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1 The Acquired Fund will operate the Acquired Fund's business in the ordinary
course of business 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 dividends or
distributions that are not customary may be limited by representations made in
connection with the issuance of the tax opinion described in Paragraph 8.5
hereof), in each case payable either in cash or in additional shares.
5.2 The Company will call a special meeting of Acquired Fund Shareholders to
consider approval of this Agreement and act upon the matters set forth in the
Proxy Statement.
5.3 The Acquiring Fund will prepare the notice of meeting, form of proxy and
Proxy Statement (collectively, "Proxy Materials") to be used in connection with
such meeting, and will promptly prepare and file with the Commission the
Registration Statement on Form N-14 relating to the Reorganization. The Company
will provide the Acquiring Fund with information reasonably necessary for the
preparation of the Registration Statement in compliance with the Securities Act,
the Exchange Act, and the Investment Company Act.
12
5.4 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.
5.5 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's shares.
5.6 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
the transactions contemplated by this Agreement.
5.7 The Acquired Fund shall furnish to the Acquiring Fund on the Closing Date
the Statement of Assets and Liabilities of the Acquired Fund as of the Closing
Date setting forth the NAV of the Acquired Assets as of the Valuation Time,
which statement shall be prepared in accordance with GAAP consistently applied
and certified by the Company's Treasurer or Assistant Treasurer. As promptly as
practicable, but in any case within 30 days after the Closing Date, the Company
shall furnish to the Acquiring Fund, in such form as is reasonably satisfactory
to the Acquiring Fund, a statement of the earnings and profits of the Acquired
Fund for federal income tax purposes, and of any capital loss carryovers and
other items that will be carried over to the Acquiring Fund under the Code, and
which statement will be certified by the Treasurer of the Company.
5.8 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.
5.9 From and after the date of this Agreement and until the Closing Date, each
of the Funds and the Company shall use its commercially reasonable efforts to
cause the Reorganization to qualify, and will not knowingly take any action,
cause any action to be taken, fail to take any action or cause any action to
fail to be taken which action or failure to act could prevent the Reorganization
from qualifying as a reorganization under the provisions of Section 368(a) of
the Code. The parties hereby adopt this Agreement as a "plan of reorganization"
within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the income tax
regulations promulgated under the Code. 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)(1)(F) of the Code, and shall
not take any position inconsistent with such treatment.
5.10 From and after the date of this Agreement and through the time of the
Closing on the Closing Date, the Acquired Fund shall use its commercially
reasonable efforts to cause the Acquired Fund to qualify, and will not knowingly
take any action, cause any action to be taken, fail to take any action or cause
any action to fail to be taken which action or failure to act could prevent the
Acquired Fund from qualifying as a regulated investment company under the
provisions of Subchapter M of the Code.
5.11 The Acquired Fund shall prepare, or cause to be prepared all Tax Returns of
the Acquired Fund for taxable periods that end on or before the Closing Date and
shall timely file, or cause to be timely filed, all such Tax Returns. The
Acquired Fund shall make any payments of Taxes required to be made with respect
to any such Tax Returns.
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
13
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 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 Fund shall have delivered to the Acquired Fund a certificate
executed in its name by the Acquiring Trust's President or Vice President and
its Treasurer or Assistant Treasurer, in form and substance satisfactory to the
Acquired Fund and dated as of the Closing Date, to the effect that the
representations and warranties of the Acquiring Fund made in this Agreement are
true and correct 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 Paragraph 6 have been met, and as to such other matters as
the Acquired Fund shall reasonably request;
6.3 The Acquiring Fund shall have delivered to the Acquired Fund and Xxxx and
Xxxx LLP an Acquiring Fund Tax Representation Certificate, satisfactory to the
Acquired Fund and Xxxx and Xxxx LLP, substantially in the form attached to this
Agreement as Annex A, concerning certain tax-related matters with respect to the
Acquiring Fund;
6.4 The Acquired Fund shall have received at the Closing a favorable opinion of
counsel, who may be an employee or officer of Pioneer Investment Management,
Inc. (based upon or subject to such representations, assumptions and limitations
as such counsel may deem appropriate or necessary), dated as of the Closing
Date, in a form reasonably satisfactory to Acquired Fund, including, without
limitation, opinions substantially to the effect that (a) the Acquiring Fund
Shares to be issued to the Acquired Fund Shareholders pursuant to this Agreement
are duly registered under the Securities Act on the appropriate form, and are
duly authorized and upon such issuance will be validly issued and outstanding
and fully paid and non-assessable, and no shareholder of the Acquiring Fund has
any preemptive rights to subscription or purchase in respect thereof, and (b)
the Registration Statement has become effective with the Commission and, to the
best of such counsel's knowledge, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been instituted
or are pending or threatened;
6.5 The Board of Trustees of the Acquiring Trust shall have approved this
Agreement and the transactions contemplated hereby; and
6.6 The Sub-Advisory Agreement between Oak Ridge Investments LLC and Pioneer
Investment Management, Inc. relating to the Acquiring Fund shall have been
executed and be in effect.
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 Company on behalf of the Acquired
Fund contained in this Agreement shall be true and correct 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;
14
7.2 The Company shall have delivered to the Acquiring Fund the Statement of
Assets and Liabilities of the Acquired Fund pursuant to Paragraph 5.7, 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
Company's Treasurer or Assistant Treasurer;
7.3 The Acquired Fund shall have delivered to the Acquiring Fund on the Closing
Date a certificate of the Company on behalf of the Acquired Fund by its
President or Secretary and a Treasurer or Assistant Treasurer, in form and
substance reasonably satisfactory to the Acquiring Fund and dated as of the
Closing Date, to the effect that the representations and warranties of the
Acquired Fund contained in this Agreement are true and correct 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 Section 7 have
been met, and as to such other matters as the Acquiring Fund shall reasonably
request;
7.4 The Acquired Fund shall have delivered to the Acquiring Fund and Xxxx and
Xxxx LLP an Acquired Fund Tax Representation Certificate, satisfactory to the
Acquiring Fund and Xxxx and Xxxx LLP, substantially in the form attached to this
Agreement as Annex B, concerning certain tax-related matters with respect to the
Acquired Fund;
7.5 The Acquiring Fund shall have received at the Closing a favorable opinion of
counsel, dated as of the Closing Date, in a form reasonably satisfactory to
Acquiring Fund; and
7.6 With respect to the Acquired Fund, the Board of Directors of the Company
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 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:
8.1 The Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the Acquired Fund's shareholders in accordance
with the provisions of the Acquired Fund's Articles of Incorporation and
By-Laws, and certified copies of the resolutions evidencing such approval by the
Acquired Fund's shareholders shall have been delivered by the Acquired Fund to
the Acquiring Fund. Notwithstanding anything herein to the contrary, neither
party hereto may waive the conditions set forth in this Paragraph 8.1;
8.2 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;
8.3 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 waive any such conditions for itself;
8.4 Each of the Acquiring Fund's Registration Statement on Form N-14 and the
Registration Statement on Form N-1A (and reflecting the Acquiring Fund as the
accounting successor of the Acquired Fund and including the performance of the
Acquired Fund's Class A shares as the historical performance of the
15
Acquiring Fund's Class A, Class B, Class C, Class R and Class Y shares) shall
have become effective under the Securities Act and no stop orders suspending the
effectiveness of either of such Registration Statements 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;
8.5 The parties shall have received an opinion of Xxxx and Xxxx LLP,
satisfactory to the Company and the Acquiring Trust and subject to customary
assumptions and qualifications, substantially to the effect that for federal
income tax purposes the acquisition by the Acquiring Fund of the Acquired Assets
solely in exchange 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 liquidation of the
Acquired Fund, of Acquiring Fund Shares to the Acquired Fund Shareholders in
exchange for their shares of common stock of the Acquired Fund and the
termination of the Acquired Fund, will constitute a "reorganization" within the
meaning of Section 368(a) of the Code.
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 all expenses of the Acquired Fund and the Acquiring Fund associated
with the preparation, printing and mailing of any and all shareholder notices,
communications, proxy statements, and necessary filings with the SEC or any
other governmental authority in connection with the transactions contemplated by
this Agreement. Except for the foregoing, the Acquiring Fund and the Acquired
Fund shall each bear its own expenses in connection with the transactions
contemplated by this Agreement.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Fund and the Acquired Fund each agree 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 representations and warranties 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
Fund and the Acquired Fund. In addition, either party may at its option
terminate this Agreement at or prior to the Closing Date:
(a) because of a material breach by the other of any representation, warranty,
covenant or agreement contained herein to be performed at or prior to the
Closing Date;
(b) because of a condition herein expressed to be precedent to the obligations
of the terminating party which has not been met and which reasonably
appears will not or cannot be met;
(c) by resolution of the Acquiring Fund'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;
16
(d) by resolution of the Company's Board of Directors 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
Shareholders; or
(e) if the transactions contemplated by this Agreement shall not have occurred
on or prior to April 30, 2004 or such other date as the parties may
mutually agree upon in writing.
11.2 In the event of any such termination, there shall be no liability for
damages on the part of the Acquiring Fund, the Acquiring Trust, the Company or
the Acquired Fund, or the directors, trustees or officers of the Company, or the
Acquired 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 Company and
the Acquiring Trust; provided, however, that following the meeting of the
Acquired Fund Shareholders called by the Company pursuant to Paragraph 5.2 of
this Agreement, no such amendment may have the effect of changing the provisions
regarding the method for determining the number of Acquiring Fund Shares to be
received by the Acquired Fund Shareholders under this Agreement to the detriment
of the Acquired Fund Shareholders without their further approval; provided that
nothing contained in this Section 12 shall be construed to prohibit the parties
from amending this Agreement to change the Closing Date.
13. NOTICES
Any notice, report, statement or demand required or permitted by any provisions
of this Agreement shall be in writing and shall be given by prepaid telegraph,
telecopy or certified mail addressed to the Acquired Fund, c/o Oak Ridge
Investments, LLC, 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; with copies to: Xxxxxxx & Xxxx, S.C., 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention Xxxxx X. Xxxx, Esq., and the
Acquiring Fund c/o Pioneer Investment Management, Inc., 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq., with copies to Xxxx
and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxx.
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
laws of the State of Delaware.
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.
14.5 It is expressly agreed that the obligations of the Acquiring Trust and the
Company shall not be binding upon any of their respective directors, trustees,
shareholders, nominees, officers, agents or employees
17
personally, but bind only to the property of the Acquiring Fund or the Acquired
Fund, as the case may be, as provided in the trust instruments of the Acquiring
Trust and the Articles of Incorporation of the Company, respectively. The
execution and delivery of this Agreement have been authorized by the trustees of
the Acquiring Trust and the directors of the Company and this Agreement has been
executed by authorized officers of the Acquiring Trust and the Company, acting
as such, and neither such authorization by such trustees or directors nor such
execution and delivery by such officers shall be deemed to have been made by any
of them individually or to imposed 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 trust instruments of the Acquiring Trust and the
Articles of Incorporation of the Company, respectively.
18
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: OAK RIDGE FUNDS, INC. on behalf of
Oak Ridge Large Cap Equity Fund
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------ -----------------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxx
Title: Secretary Title: President
PIONEER SERIES TRUST I on behalf of
Attest: Pioneer oak ridge Large Cap GROWTH Fund
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
Title: Secretary Title: Executive Vice President
19
SCHEDULE 4.1 TO THE
AGREEMENT AND PLAN OF REORGANIZATION
20
Annex A
TAX REPRESENTATION CERTIFICATE OF
PIONEER OAK RIDGE LARGE CAP EQUITY FUND
This certificate is being delivered in connection with the transaction to be
effected pursuant to the Agreement and Plan of Reorganization made as of January
7, 2004 between Pioneer Series Trust I, a Delaware statutory Trust (the
"Acquiring Trust") on behalf of its series Pioneer Oak Ridge Large Cap Growth
Fund ("Acquiring Fund") and Oak Ridge Funds, Inc., a Maryland Corporation, on
behalf of Oak Ridge Large Cap Equity Fund ("Acquired Fund") (the "Agreement").
Pursuant to the Agreement, Acquiring Fund will acquire all of the assets of
Acquired Fund in exchange solely for (i) the assumption by Acquiring Fund of the
liabilities of Acquired Fund (the "Acquired Fund Liabilities") and (ii) the
issuance of shares of beneficial interest of Acquiring Fund (the "Acquiring Fund
Shares") to Acquired Fund, followed by the distribution by Acquired Fund, in
liquidation of Acquired Fund, of the Acquiring Fund Shares to the shareholders
of Acquired Fund and the termination of Acquired Fund (the foregoing together
constituting the "transaction").
The undersigned officer of Acquiring Trust, after consulting with its
counsel, auditors and tax advisers regarding the meaning of and factual support
for the following representations on behalf of Acquiring Fund, hereby certifies
and represents that the following statements are true, complete and correct and
will be true, complete and correct on the date of the transaction and thereafter
as relevant. Unless otherwise indicated, all capitalized terms used but not
defined herein shall have the meaning ascribed to them in the Agreement.
1. Acquiring Fund is a statutory trust established under the laws of the
State of Delaware, and Acquiring Fund is, and has been at all times, treated as
a separate corporation for federal income tax purposes. Acquiring Fund was newly
organized solely for the purpose of effecting the transaction and continuing
thereafter to operate as a regulated investment company. Prior to the
transaction, Acquiring Fund did not and will not engage in any business
activities. There shall be no issued and outstanding shares of Acquiring Fund
prior to the Closing Date other than those issued to Pioneer Investment
Management, Inc. or one of its affiliates in connection with the creation of
Acquiring Fund.
2. Neither Acquiring Fund nor any person treated as related to Acquiring
Fund under Treasury Regulation Section 1.368-1(e)(3) nor any partnership of
which Acquiring Fund or any such related person is a partner has any plan or
intention to redeem or otherwise acquire any of the Acquiring Fund Shares
received by shareholders of Acquired Fund in the transaction except in the
ordinary course of Acquiring Fund's business in connection with its legal
obligation under Section 22(e) of the Investment Company Act of 1940, as amended
(the "1940 Act"), as a registered open-end investment company to redeem its own
shares.
3. After the transaction, Acquiring Fund will continue the historic
business of Acquired Fund or will use a significant portion of the historic
business assets acquired from Acquired Fund in the ordinary course of a
business.
4. Acquiring Fund has no plan or intention to sell or otherwise dispose of
any assets of Acquired Fund acquired in the transaction, except for dispositions
made in the ordinary course of its business or to maintain its qualification as
a regulated investment company under Subchapter M of the Internal Revenue Code
of 1986, as amended ("the "Code").
5. Any expenses of Acquired Fund incurred in connection with the
transaction which are paid or assumed by Acquiring Fund will be expenses of
Acquired Fund solely and directly related to the transaction in accordance with
Rev. Rul. 73-54, 1973-1 C.B. 187. Acquiring Fund will not pay or assume
expenses, if any, incurred by any Acquired Fund shareholders in connection with
the transaction.
6. There is no, and never has been any, indebtedness between Acquiring
Fund and Acquired Fund.
7. Acquiring Fund will properly elect to be treated as a regulated
investment company under Subchapter M of the Code and will qualify for the
special tax treatment afforded regulated investment companies under Subchapter M
of the Code for all taxable years ending after the date of the transaction.
8. Acquiring Fund meets the requirements of a regulated investment company
as defined in Section 368(a)(2)(F) of the Code.
9. Acquiring Fund is not under the jurisdiction of a court in a Title 11
or similar case within the meaning of Section 368(a)(3)(A) of the Code.
10. Acquiring Fund does not now own and has never owned, directly or
indirectly, any shares of Acquired Fund.
21
11. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares issued to Acquired Fund in exchange for the assets of
Acquired Fund will be approximately equal to the fair market value of the assets
of Acquired Fund received by Acquiring Fund, minus the Acquired Fund Liabilities
assumed by Acquiring Fund. Acquiring Fund will not furnish any consideration in
connection with the acquisition of Acquired Fund's assets other than the
assumption of such Acquired Fund Liabilities and the issuance of such Acquiring
Fund Shares.
12. Immediately following the transaction, Acquired Fund shareholders will
own all of the outstanding Acquiring Fund Shares and will own such shares solely
by reason of their ownership of the Acquired Fund Shares immediately prior to
the transaction. Acquiring Fund has no plan or intention to issue as part of the
transaction any shares of Acquiring Fund other than the Acquiring Fund Shares
issued in exchange for Acquired Fund assets.
13. The transaction is being undertaken for valid and substantive business
purposes, including facilitating the Acquired Fund becoming a member of the
Pioneer family of mutual funds, which, in the long term, is intended to result
in lower expenses and increased assets.
14. No Acquired Fund shareholder is acting as agent for Acquiring Fund in
connection with the transaction or approval thereof. Acquiring Fund will not
reimburse any Acquired Fund shareholder for Acquired Fund shares such
shareholder may have purchased or for other obligations such shareholder may
have incurred.
15. Acquiring Fund has no outstanding warrants, options, convertible
securities or any other type of right pursuant to which any person could acquire
stock in the Acquiring Fund.
* * * * *
22
The undersigned officer of Acquiring Trust is authorized to make all of
the representations set forth herein, and the undersigned is authorized to
execute this certificate on behalf of Acquiring Fund. The undersigned recognizes
that Xxxx and Xxxx LLP will rely upon the foregoing representations in
evaluating the United States federal income tax consequences of the transaction
and rendering its opinion pursuant to Section 8.5 of the Agreement. If, prior to
the date of the transaction, any of the representations set forth herein ceases
to be accurate, the undersigned agrees to deliver to Xxxx and Xxxx LLP
immediately a written notice to that effect.
PIONEER SERIES TRUST I ON BEHALF OF
PIONEER OAK RIDE LARGE CAP GROWTH FUND
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------
Title: Secretary
----------------------------
Dated: February 13, 2004
23
Annex B
TAX REPRESENTATION CERTIFICATE OF
OAK RIDGE FUNDS, INC
ON BEHALF OF OAK RIDGE LARGE CAP EQUITY FUND
This certificate is being delivered in connection with the transaction to
be effected pursuant to the Agreement and Plan of Reorganization made as of
January 7, 2004 between Pioneer Series Trust I, a Delaware statutory Trust on
behalf of its series, Pioneer Oak Ridge Large Cap Growth Fund ("Acquiring Fund")
and Oak Ridge Funds, Inc., a Maryland Corporation (the "Company"), on behalf of
Oak Ridge Large Cap Equity Fund ("Acquired Fund") (the "Agreement"). Pursuant to
the Agreement, Acquiring Fund will acquire all of the assets of Acquired Fund in
exchange solely for (i) the assumption by Acquiring Fund of the liabilities of
Acquired Fund (the "Acquired Fund Liabilities") and (ii) the issuance of shares
of beneficial interest of Acquiring Fund (the "Acquiring Fund Shares") to
Acquired Fund, followed by the distribution by Acquired Fund, in liquidation of
Acquired Fund, of the Acquiring Fund Shares to the shareholders of Acquired Fund
and the termination of Acquired Fund (the foregoing together constituting the
"transaction").
The undersigned officer of the Company, after consulting with its counsel,
auditors and tax advisers regarding the meaning of and factual support for the
following representations, on behalf of Acquired Fund, hereby certifies and
represents that the following statements are true, complete and correct and will
be true, complete and correct on the date of the transaction and thereafter as
relevant. Unless otherwise indicated, all capitalized terms used but not defined
herein shall have the meaning ascribed to them in the Agreement.
1. Acquired Fund is a series of Oak Ridge Funds, Inc, a Maryland
corporation, and Acquired Fund is, and has been at all times, treated as a
separate corporation for federal income tax purposes.
2. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares received by each shareholder that holds shares of Acquired
Fund (the "Acquired Fund Shares") will be approximately equal to the fair market
value of the Acquired Fund Shares with respect to which such Acquiring Fund
Shares are received, and the aggregate consideration received by Acquired Fund
shareholders in exchange for their Acquired Fund Shares will be approximately
equal to the fair market value of all of the outstanding Acquired Fund Shares
immediately prior to the transaction. No property other than Acquiring Fund
Shares will be distributed to shareholders of Acquired Fund in exchange for
their Acquired Fund Shares, nor will any such shareholder receive cash or other
property as part of the transaction.
3. Neither Acquired Fund nor any person "related" to Acquired Fund (as
defined in Treasury Regulation Section 1.368-1(e)(3)) nor any partnership in
which the Acquired Fund or any such related person is a partner has redeemed,
acquired or otherwise made any distributions with respect to any shares of the
Acquired Fund as part of the transaction, or otherwise pursuant to a plan of
which the transaction is a part, other than redemptions and distributions made
in the ordinary course of Acquired Fund's business as an open-end investment
company. To the best knowledge of management of Acquired Fund, there is no plan
or intention on the part of shareholders of Acquired Fund to engage in any
transaction with the Acquired Fund, the Acquiring Fund, or any person treated as
related to Acquired Fund or Acquiring Fund under Treasury Regulation Section
1.368-1(e)(3) or any partnership in which Acquired Fund, Acquiring Fund, or any
person treated as related to Acquired Fund or Acquiring Fund under Treasury
Regulation Section 1.368-1(e)(3) is a partner involving the sale, redemption or
exchange of any of the Acquired Fund Shares or any of the Acquiring Fund Shares
to be received in the transaction, as the case may be, other than in the
ordinary course of Acquired Fund's business as an open-end investment company.
4. In the transaction, Acquired Fund will transfer its assets and
liabilities to Acquiring Fund such that immediately following the transfer,
Acquiring Fund will possess all of the same assets and liabilities as were
possessed by Acquired Fund immediately prior to the transaction, except for
assets used to pay expenses incurred in connection with the transaction and
assets distributed to shareholders in redemption of their shares immediately
preceding, or in contemplation of, the transaction (other than redemptions and
distributions made in the ordinary course of Acquired Fund's business as an
open-end investment company) which, together with transaction expenses,
constitute less than 1% of the assets of Acquired Fund.
5. As of the date of the transaction, the fair market value of the
Acquiring Fund Shares issued to Acquired Fund in exchange for the assets of
Acquired Fund will be approximately equal to the fair market value of the assets
of Acquired Fund received by Acquiring Fund, minus the Acquired Fund Liabilities
assumed by Acquiring Fund. Acquired Fund will not receive any consideration from
Acquiring Fund in connection with the acquisition of Acquired Fund's assets
other than the assumption of such Acquired Fund Liabilities and the issuance of
such Acquiring Fund Shares.
24
6. The Acquired Fund Liabilities assumed by Acquiring Fund plus the
liabilities, if any, to which the transferred assets are subject were incurred
by Acquired Fund in the ordinary course of its business. Acquired Fund does not
have any liabilities of any kind other than the Acquired Fund Liabilities
assumed by the Acquiring Fund.
7. As or the Closing Date, the adjusted basis and the fair market value of
the Acquired Fund assets transferred to Acquiring Fund will equal or exceed the
sum of the Acquired Fund Liabilities assumed by Acquiring Fund within the
meaning of Section 357(d) of the Internal Revenue Code of 1986, as amended (the
"Code").
8. Acquired Fund currently conducts its historic business within the
meaning of Treasury Regulation section 1.368-1(d), which provides that, in
general, a corporation's historic business is the business it has conducted most
recently, but does not include a business that the corporation enters into as
part of a plan or reorganization. The Acquired Fund assets transferred to
Acquiring Fund will be Acquired Fund's historic business assets within the
meaning of Treasury Regulation section 1.368-1(d), which provides that a
corporation's historic business assets are the assets used in its historic
business.
9. Acquired Fund will distribute to its shareholders the Acquiring Fund
Shares it receives, and its other properties, if any, pursuant to the
transaction and will be liquidated promptly thereafter.
10. The expenses of Acquired Fund incurred by it in connection with the
transaction which are to be assumed by Acquiring Fund, if any, will be only such
expenses that are solely and directly related to the transaction in accordance
with Rev. Rul. 73-54, 1973-1 C.B. 187. Acquired Fund will not pay any expenses
incurred by its shareholders in connection with the transaction.
11. There is no, and never has been any, indebtedness between Acquiring
Fund and Acquired Fund.
12. Acquired Fund has properly elected to be treated as a regulated
investment company under Subchapter M of the Code, has qualified for the special
tax treatment afforded regulated investment companies under Subchapter M of the
Code for each taxable year since inception, and qualifies as such as of the time
of the Closing on the Closing Date.
13. Acquired Fund meets the requirements of a regulated investment company
as defined in Section 368(a)(2)(F) of the Code.
14. Acquired Fund is not under the jurisdiction of a court in a Title 11
or similar case within the meaning of Section 368(a)(3)(A) of the Code.
15. Acquired Fund does not pay compensation to any shareholder-employee.
16. Immediately following the transaction, Acquired Fund shareholders will
own all of the outstanding Acquiring Fund Shares issued to Acquired Fund
pursuant to the transaction and will own such shares solely by reason of their
ownership of the Acquired Fund Shares immediately prior to the transaction.
17. Acquired Fund shareholders will not have dissenters' or appraisal
rights in the transaction.
18. The transaction is being undertaken for valid and substantial business
purposes, including facilitating the Acquired Fund becoming a member of the
Pioneer family of mutual funds, which, in the long term, is intended to result
in lower expenses and increased assets.
19. Acquired Fund has no outstanding warrants, options, convertible
securities or any other type of right pursuant to which any person could acquire
stock in the Acquired Fund.
* * * * *
25
The undersigned officer of the Company is authorized to make all of the
representations set forth herein, and the undersigned is authorized to execute
this certificate on behalf of Acquired Fund. The undersigned recognizes that
Xxxx and Xxxx LLP will rely upon the foregoing representations in evaluating the
United States federal income tax consequences of the transaction and rendering
its opinion pursuant to Section 8.5 of the Agreement. If, prior to the date of
the transaction, any of the representations set forth herein ceases to be
accurate, the undersigned agrees to deliver to Xxxx and Xxxx LLP immediately a
written notice to that effect.
OAK RIDGE FUNDS, INC, ON BEHALF OF
OAK RIDGE LARGE CAP EQUITY FUND
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
-------------------------
Title: Chairman
-------------------------
Dated: February 13, 2004
26
