AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this ___ day of __________, 1999, by and between Pioneer Intermediate Tax-
Free Fund, a Massachusetts business trust with its principal place of business
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Acquired Fund"), and
Pioneer Tax-Free Income Fund (the "Acquiring Fund"), a Delaware business trust
with its principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
This Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368(a)(1) of the United States
Internal Revenue Code of 1986, as amended (the "Code"). The reorganization will
consist of the transfer of all of the assets of the Acquired Fund to the
Acquiring Fund in exchange for the issuance of Class A, Class B and Class C
shares of beneficial interest of the Acquiring Fund (the "Acquiring Fund
Shares") to the Acquired Fund and the assumption by the Acquiring Fund of the
liabilities of the Acquired Fund, followed by the distribution by the Acquired
Fund, on or promptly after the Closing Date hereinafter referred to, of the
Acquiring Fund Shares to the shareholders of the Acquired Fund in liquidation
and termination of the Acquired Fund as provided herein, all upon the terms and
conditions hereinafter set forth in this Agreement.
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 ACQUIRING FUND
SHARES AND LIQUIDATION OF THE ACQUIRED FUND
1.1 The Acquired Fund will transfer all of its assets (consisting, without
limitation, of portfolio securities and instruments, dividends and interest
receivables, cash and other assets), as set forth in the statement of assets and
liabilities referred to in paragraph 7.2 hereof (the "Statement of Assets and
Liabilities"), to the Acquiring Fund free and clear of all liens and
encumbrances, except as otherwise provided herein in exchange for (i) the
assumption by the Acquiring Fund of all known and unknown liabilities of the
Acquired Fund, including the liabilities set forth in the Statement of Assets
and Liabilities, which shall be assigned and transferred to and assumed by the
Acquiring Fund, and (ii) delivery by the Acquiring Fund to the Acquired Fund,
for distribution PRO RATA by the Acquired Fund to its shareholders in proportion
to their respective ownership of Class A, Class B and/or Class C shares of
beneficial interest of the Acquired Fund, as of the close of business on the
closing date (the "Closing Date"), of a number of Acquiring Fund Shares having
an aggregate net asset value equal to the value of the assets, less such
liabilities (herein referred to as the "net value of the assets"), of the
Acquired Fund so transferred,
assumed, assigned and delivered, all determined as provided in paragraph 2
and as of a date and time as specified therein. Such transactions shall take
place at the closing provided for in paragraph 3.1 hereof (the "Closing"). All
computations shall be provided by ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. (the
"Custodian"), as custodian for the Acquiring Fund and for the Acquired Fund and
shall be recomputed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent auditors of the
Acquiring Fund. The determination of the Custodian, as recomputed by said
auditors, shall be conclusive and binding on all parties in interest.
1.2 The Acquired Fund has provided the Acquiring Fund with a list of the
current securities holdings of the Acquired Fund as of the date of execution of
this Agreement. The Acquired Fund reserves the right to sell any of these
securities (except to the extent sales may be limited by representations made in
connection with issuance of the tax opinion described in paragraph 8.7 hereof)
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.
1.3 Each of the Acquiring Fund and the Acquired Fund shall bear its own
expenses in connection with the transactions contemplated by this Agreement.
1.4 On or as soon after the Closing Date as is conveniently practicable
(the "Liquidation Date"), the Acquired Fund will liquidate and distribute PRO
RATA to shareholders of record ("the Acquired Fund shareholders"), determined as
of the close of regular trading on the New York Stock Exchange on the last day
such Exchange is open for unrestricted trading immediately preceding the Closing
Date (the "Valuation Date"), the Acquiring Fund Shares received by the Acquired
Fund pursuant to paragraph 1.1. Such liquidation and distribution will be
accomplished by the transfer of 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 and representing the respective PRO RATA number of Acquiring
Fund Shares due such shareholders. Acquired Fund shareholders who own Class A
shares of the Acquired Fund will receive Class A Acquiring Fund Shares, Acquired
Fund shareholders who own Class B shares of the Acquired Fund will receive Class
B Acquiring Fund Shares and Acquired Fund shareholders who own Class C shares of
the Acquired Fund will receive Class C Acquiring Fund Shares. 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
Acquired Fund shares, as described in paragraph 1.5.
1.5 The Acquiring Fund shall record the net asset value of all outstanding
Acquired Fund certificated shares in its books and records as of the Closing
Date, in accordance with paragraph 2.2, and daily thereafter, in accordance with
the Acquiring
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Fund's procedures for determining net asset value per share. The Acquiring
Fund will honor certificates representing Acquired Fund shares at their net
asset value as determined on the books and records of the Acquiring Fund, and
subject to the Acquiring Fund's normal requirements for redeeming or
transferring shares evidenced by certificates. Acquired Fund shareholders need
not surrender such certificates or deliver affidavits with respect to lost
certificates after the Closing. Any Acquired Fund certificate which remains
outstanding on the Closing Date shall be deemed to be evidence of ownership of
the same class of shares of beneficial interest of the Acquiring Fund.
1.6 Any transfer taxes payable upon issuance of Acquiring Fund Shares in a
name other than the registered holder of the Acquiring 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 file an application (on Form N-8F or such other
form deemed appropriate by the Securities and Exchange Commission (the
"Commission")) pursuant to Section 8(f) of the Investment Company Act of 1940,
as amended (the "1940 Act"), as soon as practicable following the Liquidation
Date, and the existence of the Acquired Fund shall be terminated in accordance
with Massachusetts law as promptly as practicable thereafter.
2. VALUATION
2.1 The net asset values of the Class A, Class B and Class C Acquiring Fund
Shares and the net value of the assets and liabilities of the Acquired Fund
attributable to its Class A, Class B and Class C shares to be transferred shall,
in each case, be determined as of the close of the New York Stock Exchange on
the Valuation Date. The net asset value per share of Acquiring Fund Shares shall
be computed by the Custodian in the manner set forth in the Agreement and
Declaration of Trust or By-Laws of the Acquiring Fund and then-current
prospectus and statement of additional information of the Acquiring Fund and
shall be computed to not fewer than four decimal places. The net value of the
assets of the Acquired Fund to be transferred shall be computed by the Custodian
by calculating the value of the assets attributable to each class of shares
transferred by the Acquired Fund and by subtracting therefrom the amount of the
liabilities attributable to each class of shares to be assigned and transferred
to and assumed by the Acquiring Fund on the Closing Date, said assets and
liabilities to be valued in the manner set forth in the Acquired Fund's most
recent prospectus and statement of additional information.
2.2 The number of shares of each class of Acquiring Fund Shares to be
issued (including fractional shares, if any) in exchange for the Acquired Fund's
assets shall be determined by dividing the value of the Acquired Fund assets
attributable to
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a class, less the liabilities attributable to that class assumed by the
Acquiring Fund, by the Acquiring Fund's net asset value per share of the
same class, all as determined in accordance with paragraph 2.1.
2.3 All computations of value shall be made by the Custodian in accordance
with its regular practice as pricing agent for the Acquiring Fund.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be as of ____________, 1999, or as of such other
date on or before ____________, 1999 as the parties may agree in writing. The
Closing shall be held at 5:00 p.m., Boston time, at the offices of the Acquiring
Fund, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time and/or
place as the parties may agree in writing.
3.2 Portfolio securities that are not held in book-entry form in the name
of the Custodian as record holder for the Acquired Fund shall be presented by
the Acquired Fund to the Custodian for examination no later than five business
days preceding the Valuation Date. Portfolio securities which are not held in
book-entry form shall be delivered by the Acquired Fund to the 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 Custodian in
book-entry form on behalf of the Acquired Fund shall be delivered to the
Acquiring Fund by the Custodian by recording the transfer of ownership thereof
on its records. The cash delivered shall be in the form of currency or by the
Custodian crediting the Acquiring Fund's account maintained with the Custodian
with immediately available funds.
3.3 In the event that on the proposed Valuation Date (a) the New York Stock
Exchange shall be closed to trading or trading thereon shall be restricted, or
(b) trading or the reporting of trading on said Exchange or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Acquired Fund 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 if
trading shall not be fully resumed and reporting restored on or before
________________, 1999, this Agreement may be terminated by the Acquiring Fund
or the Acquired Fund upon the giving of written notice to the other party.
3.4 The Acquired Fund shall deliver at the Closing a list of the names,
addresses, federal taxpayer identification numbers and backup withholding and
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nonresident alien withholding status of Acquired Fund shareholders and the
number and percentage ownership of outstanding shares of each class of shares of
beneficial interest of the Acquired Fund owned by each such shareholder, all as
of the close of business on the Valuation Date, certified by its Treasurer,
Secretary or other authorized officer (the "Shareholder List"). The Acquiring
Fund shall issue and deliver to the Acquired Fund a confirmation evidencing the
Acquiring Fund Shares to be credited on the Liquidation Date, or provide
evidence satisfactory to the Acquired Fund that such Acquiring Fund Shares have
been credited to the Acquired Fund's account on the books of the Acquiring Fund.
At the Closing each party shall deliver to the other such bills of sale, checks,
assignments, certificates, receipts or other documents as such other party or
its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Acquired Fund represents and warrants to the Acquiring Fund as
follows:
(a) The Acquired Fund is a business trust duly organized, validly existing
and in good standing under the laws of the Commonwealth of
Massachusetts and has the power to own all of its properties and assets
and, subject to approval by the shareholders of the Acquired Fund, 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 its business as now being
conducted;
(b) The Acquired Fund is a registered investment company classified as a
management company of the open-end diversified type and its
registration with the Commission as an investment company under the
1940 Act is in full force and effect;
(c) The Acquired Fund is not, and the execution, delivery and performance
of this Agreement by the Acquired Fund will not result, in violation of
any provision of the Declaration of Trust or By-Laws of the Acquired
Fund or of any agreement, indenture, instrument, contract, lease or
other undertaking to which the Acquired Fund is a party or by which the
Acquired Fund is bound;
(d) The Acquired Fund has no material contracts or other commitments (other
than this Agreement or agreements for the purchase of securities
entered into in the ordinary course of business and consistent with
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its obligations under this Agreement) which will not be terminated
without liability to the Acquired Fund at or prior to the Closing Date;
(e) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or threatened as to the Acquired Fund or any of its properties
or assets. The Acquired Fund knows of no facts which might form the
basis for the institution of such proceedings, and 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 its business or its ability to consummate the
transactions herein contemplated;
(f) The statement of assets and liabilities, including the schedule of
portfolio investments, of the Acquired Fund as of December 31, 1998 and
the related statement of operations for the year then ended, and the
statements of changes in net assets for the years ended December 31,
1998 and 1997 (audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants) (copies of which have been furnished to the Acquiring
Fund) present fairly in all material respects the financial position of
the Acquired Fund as of December 31, 1998 and the results of its
operations and changes in net assets for the respective stated periods
in accordance with generally accepted accounting principles
consistently applied, and there were no known actual or contingent
liabilities of the Acquired Fund as of the respective dates thereof not
disclosed therein;
(g) Since December 31, 1998, there has not been any material adverse change
in the Acquired Fund's financial condition, assets, liabilities or
business other than changes occurring in the ordinary course of
business, or any incurrence by the Acquired Fund of indebtedness
maturing more than one year from the date such indebtedness was
incurred, except as otherwise disclosed to and accepted by the
Acquiring Fund;
(h) At the date hereof and by the Closing Date, all federal, state and
other tax returns and reports, including information returns and payee
statements, of the Acquired Fund required by law to have been filed or
furnished by such dates shall have been filed or furnished, and all
federal, state and other taxes, interest and penalties shall have been
paid so far as due, or provision shall have been made for the payment
thereof, and to the best of the Acquired Fund's knowledge no such
return is currently under audit and no assessment has been asserted
with respect to such returns or reports;
(i) The Acquired Fund has elected to be treated as a regulated investment
company for federal income tax purposes, has qualified as such for
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each taxable year of its operation and will qualify as such as of the
Closing Date with respect to its final taxable year ending on the
Closing Date;
(j) The authorized capital of the Acquired Fund consists of an unlimited
number of shares of beneficial interest, no par value. All issued and
outstanding shares of beneficial interest of the Acquired Fund are, and
at the Closing Date will be, duly and validly issued and outstanding,
fully paid and nonassessable. All of the issued and outstanding shares
of beneficial interest of the Acquired Fund will, at the time of
Closing, be held by the persons and in the amounts set forth in the
Shareholder List. The Acquired Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any of
its shares of beneficial interest, nor is there outstanding any
security convertible into any of its shares of beneficial interest;
(k) 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 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, including such restrictions as might arise under the
Securities Act of 1933, as amended (the "1933 Act");
(l) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Acquired
Fund, and this Agreement constitutes a valid and binding obligation of
the Acquired Fund enforceable in accordance with its terms, subject in
each case to the approval of Acquired Fund shareholders;
(m) 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 shall be accurate and complete and
shall comply in all material respects with federal securities and other
laws and regulations thereunder applicable thereto;
(n) The proxy statement of the Acquired Fund (the "Proxy Statement") to be
included in the Registration Statement referred to in paragraph 5.7
hereof (other than written information furnished by the Acquiring Fund
for inclusion therein, as covered by the Acquiring Fund's warranty in
paragraph 4.2(l) hereof), on the effective date of the Registration
Statement, on the date of the meeting of Acquired Fund shareholders and
on the Closing Date, shall 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
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the statements therein, in light of the circumstances under which such
statements were made, not misleading;
(o) 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;
(p) 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, except as may have
been previously disclosed in writing to the Acquiring Fund; and
(q) The prospectus of the Acquired Fund dated April 30, 1998, and any
amendments or supplements thereto, previously furnished to the
Acquiring Fund, does not contain any untrue statements 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.
4.2 The Acquiring Fund represents and warrants to the Acquired Fund as
follows:
(a) The Acquiring Fund is a business trust duly organized, 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 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 diversified type and its
registration with the Commission as an investment company under the
1940 Act is in full force and effect;
(c) The prospectus of the Acquiring Fund and statement of additional
information of the Acquiring Fund, dated April 30, 1998, and any
amendments or supplements thereto on or prior to the Closing Date (the
"Acquiring Fund Prospectus") and the Registration Statement to be filed
in connection with this Agreement referred to in paragraph 5.7 hereof
(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)
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conforms and will conform at all times on or
prior to the Closing Date in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder, the Acquiring Fund Prospectus
does not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
such statements were made, not misleading, and the Registration
Statement will not include an untrue statement of material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(d) At the Closing Date, the Acquiring Fund will have good and marketable
title to its assets;
(e) The Acquiring Fund is not, and the execution, delivery and performance
of this Agreement will not result, in violation of any provisions of
the Agreement and Declaration of Trust or By-Laws of the Acquiring Fund
or of any agreement, indenture, instrument, contract, lease or other
undertaking to which the Acquiring Fund is a party or by which the
Acquiring Fund is bound;
(f) No material 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, except as previously disclosed in writing to the
Acquired Fund. The Acquiring Fund knows of no facts which might form
the basis for the institution of such proceedings, and 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;
(g) The statement of assets and liabilities of the Acquiring Fund, as of
December 31, 1998, and the related statement of operations for the year
then ended, and the statements of changes in net assets for the years
ended December 31, 1998 and 1997 (audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants) (copies of which have been furnished to
the Acquired Fund) present fairly in all material respects the
financial position of the Acquiring Fund as of December 31, 1998;
(h) The Acquiring Fund or its predecessor has elected to be treated as a
regulated investment company for federal income tax purposes, the
Acquiring Fund and its predecessor have qualified as such for each
taxable year since inception, and the Acquiring Fund will qualify as
such as of the Closing Date and for its taxable year that includes the
Closing Date;
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(i) The authorized capital of the Acquiring Fund consists of an unlimited
number of shares of beneficial interest, no par value. The shares of
the Acquiring Fund are of divided into three classes, Class A, Class B
and Class C. All issued and outstanding shares of beneficial interest
of the Acquiring Fund are, and at the Closing Date will be, duly and
validly issued and outstanding, fully paid and nonassessable by the
Acquiring Fund. The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any
Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(j) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary action on the part of the Acquiring
Fund, and this Agreement constitutes a valid and binding obligation of
the Acquiring Fund enforceable in accordance with its terms;
(k) The Acquiring Fund Shares to be issued and delivered to the Acquired
Fund pursuant to the terms of this Agreement, when so issued and
delivered, will be duly and validly issued shares of beneficial
interest of the Acquiring Fund and will be fully paid and nonassessable
by the Acquiring Fund;
(l) The information to be furnished by 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 shall be accurate and complete and
shall comply in all material respects with federal securities and other
laws and regulations applicable thereto; and
(m) No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated by the Agreement,
except for the registration of the Acquiring Fund Shares under the 1933
Act, 1940 Act and under state securities laws.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1 Except as expressly contemplated herein to the contrary, the Acquiring
Fund and the Acquired Fund each shall operate its business in the ordinary
course between the date hereof and the Closing Date, it being understood that
such ordinary course of business will include customary dividends and
distributions and any other distributions necessary or desirable to avoid
federal income or excise taxes.
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5.2 The Acquired Fund will call a meeting of its shareholders to consider
and act upon this Agreement and to take all other action necessary to obtain
approval of the transactions contemplated herein.
5.3 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.
5.4 The Acquired Fund will provide such information within its possession
or reasonably obtainable as the Acquiring Fund requests concerning the
beneficial ownership of the Acquired Fund's shares of beneficial interest.
5.5 Subject to the provisions of this Agreement, the Acquiring Fund and the
Acquired Fund each shall take, or cause to be taken, all action, and do or cause
to be done, all things reasonably necessary, proper or advisable to consummate
the transactions contemplated by this Agreement.
5.6 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, which statement shall be prepared in accordance with generally
accepted accounting principles consistently applied and shall be certified by
the Acquired Fund's Treasurer or Assistant Treasurer. As promptly as
practicable, but in any case within 60 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
President of the Acquired Fund.
5.7 The Acquiring Fund will prepare and file with the Commission a
Registration Statement on Form N-14 (the "Registration Statement") in compliance
with the 1933 Act and the 1940 Act in connection with the issuance of the
Acquiring Fund Shares as contemplated herein.
5.8 The Acquired Fund will prepare a Proxy Statement, to be included in the
Registration Statement in compliance with the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the 1940 Act and the rules and regulations
thereunder (collectively, the "Acts") in connection with the special meeting of
Acquired Fund shareholders to consider approval of this Agreement. The Acquiring
Fund agrees to provide the Acquired Fund with information applicable to the
Acquiring Fund required under the Acts for inclusion in the Proxy Statement.
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6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to consummate the transactions
provided for herein shall be, at its election, subject to the performance by the
Acquiring Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following further
conditions:
6.1 All representations and warranties of the Acquiring Fund contained in
this Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date with the same force and effect as if made
on and as of the Closing Date; and
6.2 The Acquiring Fund shall have delivered to the Acquired Fund a
certificate executed in its name by its President or Vice President and its
Treasurer or Assistant Treasurer, in form 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, and as to such other matters as the Acquired
Fund shall reasonably request.
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 conditions:
7.1 All representations and warranties of the Acquired Fund contained in
this Agreement shall be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of the Closing Date with the same force and effect as if made
on and as of the Closing Date;
7.2 The Acquired Fund shall have delivered to the Acquiring Fund the
Statement of Assets and Liabilities, 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 Treasurer or Assistant
Treasurer of the Acquired Fund; and
7.3 The Acquired Fund shall have delivered to the Acquiring Fund on the
Closing Date a certificate executed in its name by its President or Vice
President and
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its Treasurer or Assistant Treasurer, in form and substance satisfactory to
the Acquiring Fund and dated as of the Closing Date, to the effect that the
representations and warranties of the Acquired Fund 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, and as to such other matters as the
Acquiring Fund shall reasonably request.
7. OTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND AND THE
ACQUIRING FUND
The obligations of the Acquired Fund hereunder are, at the option of
the Acquiring Fund, and the obligations of the Acquiring Fund hereunder are, at
the option of the Acquired Fund, each subject to the further conditions that on
or before the Closing Date:
8.1 The Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of
beneficial interest of the Acquired Fund in accordance with the provisions of
the Acquired Fund's Declaration of Trust 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;
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 the Acquired Fund 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 the Acquiring Fund or
the Acquired Fund, provided that either party hereto may waive any such
conditions for itself;
8.4 The Registration Statement shall have become effective under the 1933
Act and 1940 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 1933 Act and 1940 Act;
8.5 The Acquired Fund shall have distributed to its shareholders all of its
investment company taxable income, as defined in Section 852(b)(2) of the Code
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(prior to reduction by any dividends paid deduction), and all of its net capital
gain, as such term is used in Section 852(b)(3)(C) of the Code, after reduction
by any capital loss carryforward, and all of the excess of (1) its interest
income excludable from gross income under Section 103(a) of the Code over (2)
the deductions disallowed under Sections 265 and 171(a)(2) of the Code, in each
case for its taxable year ending on the Closing Date;
8.6 After giving effect to the transactions contemplated by this Agreement,
the Acquiring Fund on the Closing Date will be in compliance with the 1940 Act
and the rules promulgated thereunder; and
8.7 The parties shall have received an opinion of ▇▇▇▇ and ▇▇▇▇ LLP,
satisfactory to the Acquired Fund and the Acquiring Fund, substantially to the
effect that for federal income tax purposes:
(a) 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 Acquired
Fund 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 shareholders of the Acquired Fund 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)(1) of the Code, and the Acquired Fund and the
Acquiring Fund will each be "a party to a reorganization" within the
meaning of Section 368(b) of the Code;
(b) No gain or loss will be recognized by the Acquired Fund upon (i) the
transfer of all of its assets to the Acquiring Fund solely in exchange
for the issuance of Acquiring Fund Shares to the Acquired Fund and the
assumption of all of the Acquired Fund liabilities by the Acquiring
Fund and (ii) the distribution by the Acquired Fund of such Acquiring
Fund Shares to the shareholders of the Acquired Fund;
(c) No gain or loss will be recognized by the Acquiring Fund upon the
receipt 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 Acquired Fund liabilities by the Acquiring
Fund;
(d) The basis of the assets of the Acquired Fund acquired by the Acquiring
Fund will be, in each instance, the same as the basis of those assets
in the hands of the Acquired Fund immediately prior to the transfer;
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(e) The tax holding period of the assets of the Acquired Fund in the hands
of the Acquiring Fund will, in each instance, include Acquired Fund's
tax holding period for those assets;
(f) The shareholders of the Acquired Fund will not recognize gain or loss
upon the exchange of all of their shares of beneficial interest of the
Acquired Fund solely for Acquiring Fund Shares as part of the
transaction;
(g) The basis of the Acquiring Fund Shares received by the Acquired Fund
shareholders in the transaction will be the same as the basis of the
shares of beneficial interest of the Acquired Fund surrendered in
exchange therefor; and
(h) The tax holding period of the Acquiring Fund Shares received by the
Acquired Fund shareholders will include, for each shareholder, the tax
holding period for the shares of beneficial interest of the Acquired
Fund surrendered in exchange therefor, provided that the Acquired Fund
shares were held as capital assets on the date of the exchange.
Each of the Acquiring Fund and the Acquired Fund agrees to make and
provide representations with respect to itself that are reasonably necessary to
enable ▇▇▇▇ and ▇▇▇▇ LLP to deliver an opinion substantially as set forth in
this paragraph 8.7. Notwithstanding anything herein to the contrary, the
Acquiring Fund and the Acquired Fund may not waive in any material respect the
conditions set forth in this paragraph 8.7.
9. BROKERAGE FEES AND EXPENSES
9.1 Each of the Acquiring Fund and the Acquired Fund represents and
warrants to the other that there are no brokers or finders entitled to receive
any payments in connection with the transactions provided for herein.
9.2 Each of the Acquiring Fund and the Acquired Fund shall be liable solely
for its own expenses incurred in connection with entering into and carrying out
the provisions of this Agreement whether or not the transactions contemplated
hereby are consummated.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTS
10.1 The Acquiring Fund and the Acquired Fund agree that neither party has
made any representation, warranty or covenant not set forth herein or referred
to in paragraph 4 hereof or required in connection with paragraph 8.7 hereof and
that this Agreement constitutes the entire agreement between the parties.
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10.2 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.
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 because of:
(a) a material breach by the other of any representation, warranty or
agreement contained herein to be performed at or prior to the Closing
Date; or
(b) 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.
11.2 In the event of any such termination, there shall be no liability for
damages on the part of the Acquiring Fund or the Acquired Fund, or their
respective trustees, directors or officers, to the other party or its trustees,
directors or officers, but each shall bear the expenses incurred by it
incidental to the preparation and carrying out of this Agreement.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
Acquired Fund and the Acquiring Fund; provided, however, that following the
meeting of shareholders called by the Acquired Fund pursuant to paragraph 5.2 of
this Agreement, no such amendment may have the effect of changing the provisions
for determining the number of Acquiring Fund Shares to be issued to Acquired
Fund shareholders under this Agreement to the detriment of such shareholders
without their further approval, provided that nothing contained in this Article
12 shall be construed to prohibit the parties from amending this Agreement to
change the Closing Date or the Valuation 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 Acquiring Fund or the
Acquired Fund, each at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary.
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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 Commonwealth of Massachusetts.
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 any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
14.5 All persons dealing with the Acquiring Fund must look solely to the
property of the Acquiring Fund for the enforcement of any claims against the
Acquiring Fund as neither the Trustees, officers, agents or shareholders of the
Acquiring Fund assume any personal liability for obligations entered into on
behalf of the Acquiring Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its President and its seal to be affixed thereto and
attested by its Secretary.
Attest: PIONEER
INTERMEDIATE TAX-FREE FUND
___________________________________ By:________________________________
Attest: PIONEER TAX-FREE INCOME FUND
___________________________________ By:________________________________
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▇▇▇▇▇/op/71976.120/n14_1298/agt_reorg1.wpf
