AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made as of the 31st day of
January, 1996, by and between Pioneer Three, a Massachusetts business trust (the
"Current Fund"), and Pioneer Mid-Cap Fund, a business trust duly formed under
the laws of the State of Delaware (the "Successor Trust").
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368 (a)(1) of the U.S. Internal Revenue Code of
1986, as amended (the "Code"), and is intended to effect the reorganization (a
"reorganization") of the Current Fund, as a new separate series of the Successor
Trust. The reorganization will involve the transfer of all of the assets of the
Current Fund to the sole series of the Successor Trust (the "Successor Fund")
solely in exchange for (1) assumption by the Successor Fund of all liabilities
of the Current Fund and (2) the issuance of shares of beneficial interest (the
"Successor Shares") by the Successor Trust on behalf of the Successor Fund to
the Current Fund, followed by the pro rata distribution on the Closing Date (as
defined below) of the Successor Shares to the holders of shares of beneficial
interest of the Current Fund (the "Current Fund Shareholders") in exchange for
their shares of the Current Fund in liquidation and termination of the Current
Fund, all upon the terms and conditions hereinafter set forth in this Agreement.
In consideration of the premises and of the covenants and agreements
hereinafter set forth the parties hereto covenant and agree as follows.
1. TRANSFER OF ASSETS OF THE CURRENT FUND IN EXCHANGE FOR ASSUMPTION OF
LIABILITIES AND ISSUANCE OF SUCCESSOR SHARES OF THE SUCCESSOR TRUST;
TERMINATION OF THE CURRENT FUND
1.1 Subject to the terms and conditions set forth herein and on the basis
of the representations and warranties contained herein, the Current Fund agrees
to transfer all of the assets of the Current Fund as set forth in paragraph 1.2
and assign and transfer all of its liabilities to the Successor Fund of the
Successor Trust which has been established solely for the purpose of acquiring
all of the assets and assuming all of the liabilities of the Current Fund. The
Successor Trust has not issued any Shares or commenced operations. The Successor
Trust on behalf of the Successor Fund agrees that in exchange for all of the
assets of the Current Fund (1) the Successor Fund shall assume all of the
liabilities of the Current Fund, whether contingent or otherwise, then existing,
and further (2) the Successor Trust shall deliver to the Current Fund the number
of full and fractional Successor Shares equal to the value of the assets of the
Current Fund transferred to the Successor Fund, minus the liabilities of the
Current Fund assumed by the Successor Fund (the "Net Assets"), as described in
paragraph 3.1 on the Closing Date provided for in paragraph 3.1. Such
transactions shall take place at the Closing provided for in paragraph 3.1.
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1.2 The assets of the Current Fund to be acquired by the Successor Fund
shall include, without limitation, all cash, cash equivalents, securities,
receivables (including interest and dividends receivable), any claims or rights
of action or rights to register shares under applicable securities laws, any
books or records of the Current Fund
and other property owned by the Current Fund and any deferred or prepaid
expenses
shown as assets on the books of the Current Fund on the Closing Date provided
for in paragraph 3.1.
1.3 Immediately upon delivery to the Current Fund of Successor Shares, any
duly authorized officer of the Current Fund shall cause the Current Fund, as the
then sole shareholder of the Successor Fund, to (i) elect as Trustees of the
Successor Trust the persons who currently serve as Trustees of the Current Fund;
(ii) ratify the selection of the independent accountants; (iii) approve an
investment advisory agreement for the Successor Fund in the form currently
approved by the shareholders of the Current Fund; (iv) approve a Rule 12b-1 plan
in the form currently in place with respect to the Current Fund; and (v) adopt,
on behalf of the Successor Fund, the investment objectives, investment policies
and investment restrictions of the Current Fund.
1.4 As provided in paragraph 3.4, on the Closing Date the Current Fund
will distribute in liquidation the Successor Shares pro rata in proportion to
the Current Fund's respective shares of beneficial interest in the Current Fund
("Current Fund Shares") to Current Fund Shareholders of record determined as of
the close of business on the Closing Date, in exchange for the Current Fund
Shares. Such distribution will be accomplished by the transfer of the Successor
Shares then credited to the account of the Current Fund on the share records of
the Successor Trust to open accounts on those records in the names of the
Current Fund Shareholders and representing the respective pro rata number of the
Successor Shares received from the Successor Trust on behalf of the Successor
Fund due the Current Fund Shareholders. The Successor Trust shall not issue
certificates representing Successor Shares in connection with such distribution.
Fractional Successor Shares shall be rounded to the third place after the
decimal point.
1.5 As soon as practicable after the distribution of the Successor Shares
as set forth in Section 1.4, the Current Fund shall be terminated and any such
further actions shall be taken in connection therewith as are required by
applicable law.
1.6 Ownership of the Successor Shares of each Successor Fund Shareholder
shall be maintained separately on the books of Pioneering Services Corporation
as the Successor Trust's shareholder services and transfer agent.
1.7 Any transfer taxes payable upon issuance of Successor Shares in a name
other than the registered holder of the Current Fund Shares on the books of the
Current Fund as of that time shall be paid by the person to whom such Successor
Shares are to be distributed as a condition of such transfer.
2. VALUATION
2.1 The value of the Current Fund's Net Assets to be acquired by the
Successor Trust on behalf of the Successor Fund hereunder shall be the net asset
value computed
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as of the valuation time provided in the Current Fund's prospectus on the
Closing Date using the valuation procedures set forth in the Current Fund's
current prospectus or statement of additional information.
2.2 The value of full and fractional Successor Shares to be issued in
exchange for the Current Fund's Net Assets shall be equal to the value of the
Net Assets of the Current Fund on the Closing Date, and the number of such
Successor Shares shall equal the number of full and fractional Current Fund
Shares of the Current Fund on the Closing Date.
2.3 All computations of value shall be made by Xxxxx Brothers Xxxxxxxx &
Co. as custodian for the Current Fund and the Successor Trust.
3. CLOSING AND CLOSING DATE
3.1 The transfer of the Current Fund's assets in exchange for the
assumption by the Successor Fund of the Current Fund's liabilities and the
issuance of Successor Shares to the Current Fund, as described above, together
with related acts necessary to consummate such acts (the "Closing"), shall occur
at the offices of Xxxx and Xxxx at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
on January 31, 1996 ("Closing Date"), or at such other place or date on or prior
to March 31, 1996 as the parties may agree in writing. All acts taking place at
the Closing shall be deemed to take place simultaneously as of the last daily
determination of the net asset value of any Current Fund or at such other time
and/or place as the parties may agree.
3.2 In the event that on the Closing Date (a) the New York Stock Exchange
is closed to trading or trading thereon is restricted or (b) trading or
reporting of trading on said Exchange or in any market in which portfolio
securities of any Current Fund are traded is disrupted so that accurate
appraisal of the value of the total net assets of the Current Fund is
impracticable, the Closing shall be postponed until the first business day upon
which trading shall have been fully resumed and reporting shall have been
restored.
3.3 The Current Fund shall deliver at the Closing a certificate or
separate certificates of an authorized officer stating that it has notified the
Custodian, as custodian for the Current Fund, of the Current Fund's
reorganization as the Successor Fund.
3.4 Pioneering Services Corporation, as shareholder services and transfer
agent for the Current Fund, shall deliver at the Closing a certificate as to the
conversion on its books and records of the Current Fund Shareholder account to
an account as a holder of Successor Shares. The Successor Trust shall issue and
deliver to the Current Fund a confirmation evidencing the Successor Shares to be
credited on the Closing Date or provide evidence satisfactory to the Current
Fund that such Successor Shares have been credited to the Current Fund's account
on the books of the Successor Trust. At the Closing each party shall deliver to
the other such bills of sale, checks, assignments, stock certificates, receipts
or other documents as such other party or its counsel may reasonably request.
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3.5 Portfolio securities that are not held in book-entry form in the name
of the Custodian as record holder for the Current Fund shall be presented by the
Current Fund to the Custodian for examination no later than five business days
preceding the Closing Date. Portfolio securities which are not held in
book-entry form shall be delivered by the Current Fund to the Custodian for the
account of the Successor 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 Current Fund shall be delivered to the
Successor Fund by the Custodian by recording the transfer of beneficial
ownership thereof on its records. The cash delivered shall be in the form of
currency or by the Custodian crediting the Successor Fund' account maintained
with the Custodian with immediately available funds.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Current Fund represents and warrants as follows:
4.1.A. The Current 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 Current Fund, to
perform its obligations under this Agreement. The Current 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 Current 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;
4.1.B. The Current Fund is a registered investment company classified
as a management company of the open-end type and its registration with the
Securities and Exchange Commission (the "Commission") as an investment
company under the Investment Company Act of 1940, as amended (the "1940
Act"), is in full force and effect;
4.1.C. The Current Fund is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any
provision of its Declaration of Trust or By-laws, or any agreement,
indenture, instrument, contract, lease or other undertaking to which the
Current Fund is a party or by which the Current Fund is bound;
4.1.D. The Current Fund has no material contracts or other
commitments (other than this Agreement or agreements on behalf of a Current
Fund for the purchase of securities entered into in the ordinary course of
business and consistent with its obligations under this Agreement) that
will not be terminated without liability to the Current Fund on or prior to
the Closing Date;
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4.1.E. No material litigation or administrative proceeding or
investigation of or before any court or governmental body presently is
pending or threatened against the Current Fund or any of its properties or
assets. The Current Fund knows of no facts that might form the basis for
the institution of such proceedings and the Current Fund is not a party to,
or subject to, the provisions of any order, decree or judgment of any court
or governmental body that materially and adversely affects its business or
its ability to consummate the transactions herein contemplated;
4.1.F. At the date hereof and at the Closing Date, all federal, state
and other tax returns and reports, including information returns and payee
statements, of the Current 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 no
such return is currently under audit and no assessment has been asserted
with respect to any of such returns or reports;
4.1.G. The Current Fund has elected to be treated as a regulated
investment company under Subchapter M of the Code, has qualified as such
for each taxable year since its inception, and will qualify as such as of
the Closing Date;
4.1.H. The authorized capital of the Current Fund consists of an
unlimited number of shares of beneficial interest. All issued and
outstanding shares of beneficial interest of the Current Fund are, and at
the Closing Date will be, duly and validly issued and outstanding, fully
paid and nonassessable. The Current 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;
4.1.I. The information to be furnished by the Current 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;
4.1.J. All of the issued and outstanding Current Fund Shares will at
the time of the Closing be held by the persons and in the amounts as
certified in accordance with the provisions of paragraph 3.4;
4.1.K. At the Closing Date, the Current Fund will have good and
marketable title to the assets to be transferred to the Successor 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
in payment for such assets, the Successor 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;
4.1.L. The execution, delivery and performance of this Agreement will
have been duly authorized prior to the Closing Date by all necessary action
on the part of
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the Current Fund and this Agreement constitutes a valid and binding
obligation of the Current Fund enforceable in accordance with its terms,
subject to the approval of the Current Fund's Shareholders; and
4.1.M. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Current Fund
of the transactions contemplated herein, except such as shall have been
obtained prior to the Closing Date.
4.2 The Successor Trust represents and warrants as follows:
4.2.A. The Successor Trust 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 Successor Trust 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 Successor Trust 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; that as of the
date hereof and as of the Closing Date, the Successor Fund is the only
series of the Successor Trust; and the Successor Fund is a duly established
and designated series of the Successor Trust;
4.2.B. The Successor Trust is not, and the execution, delivery and
performance of this Agreement will not result, in violation of any
provision of the Declaration of Trust or By-laws of the Successor Trust or
any agreement, indenture, instrument, contract, lease or other undertaking
to which the Successor Trust is a party or by which the Successor Trust is
bound;
4.2.C. No material litigation or administrative proceeding or
investigation of or before any court or governmental body is presently
pending or threatened against the Successor Trust or any of its properties
or assets. The Successor Trust knows of no facts that might form the basis
for the institution of such proceedings, and the Successor Trust is not a
party to, or subject to, the provisions of any order, decree or judgment of
any court or governmental body that materially and adversely affects its
business or its ability to consummate the transactions herein contemplated;
4.2.D. The Successor Trust will cause the Successor Fund to qualify
as a regulated investment company under subchapter M of the Code for the
taxable year in which the Closing occurs and to continue to qualify as such
for each taxable year;
4.2.E. Prior to the Closing Date, there shall be no issued and
outstanding Successor Shares or any other securities of the Successor
Trust; Successor Shares issued in connection with the transactions
contemplated herein will be duly and validly issued and outstanding and
fully paid and non-assessable;
4.2.F. The execution, delivery and performance of this Agreement has
been duly authorized by all necessary action on the part of the Successor
Trust, and this
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Agreement constitutes a valid and binding obligation of the Successor Trust
enforceable against the Successor Trust in accordance with its terms;
4.2.G. The information to be furnished by the Successor Trust 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
4.2.H. No consent, approval, authorization or order of any court or
governmental authority is required for the consummation by the Successor
Trust of the transactions contemplated herein, except such as shall have
been obtained prior to the Closing Date.
5. COVENANTS OF THE CURRENT FUND AND THE SUCCESSOR TRUST
5.1 The Current Fund covenants that the Successor Shares are not being
acquired for the purpose of making any distribution thereof, other than in
accordance with the terms of this Agreement.
5.2 The Current Fund covenants that it will assist the Successor Trust in
obtaining such information as the Successor Trust reasonably requests concerning
the beneficial ownership of Current Fund Shares.
5.3 The Current Fund will, from time to time, as and when requested by the
Successor Trust execute and deliver, or cause to be executed and delivered, all
such assignments and other instruments, and will take or cause to be taken such
further action, as the Successor Trust may deem necessary or desirable in order
to vest in, and confirm to, the Successor Fund, title to, and possession of, all
the assets of the Current Fund to be sold, assigned, transferred and delivered
hereunder and otherwise to carry out the intent and purpose of this Agreement.
5.4 The Successor Trust will, from time to time, as and when requested by
the Current Fund, execute and deliver or cause to be executed and delivered all
such assignments and other instruments, and will take or cause to be taken such
further action, as the Current Fund may deem necessary or desirable in order to
vest in, and confirm to, the Current Fund, on behalf of the Current Funds, title
to, and possession of, the Successor Shares issued, sold, assigned, transferred
and delivered hereunder and otherwise to carry out the intent and purpose of
this Agreement.
5.5 The Successor Trust shall use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and such
state securities laws as it may deem appropriate in order to operate after the
Closing Date.
5.6 Subject to the provisions of this Agreement, the Successor Trust and
the Current Fund each will take, or cause to be taken, all action and will do or
cause to be done all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
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5.7 As promptly as practicable, but in any event within 60 days after the
Closing Date, the Current Fund shall furnish to the Successor Trust, in such
form as is reasonably satisfactory to the Successor Trust, a statement of the
earnings and profits of the Current Fund for federal income tax purposes, and of
any capital loss carryovers and other items that will be carried over to the
Successor Fund as a result of Section 381 of the Code, and which statement will
be certified by the President or Treasurer of the Current Fund.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT FUND
The obligations of the Current Fund to consummate the transactions provided
for herein shall be subject to the performance by the Successor Trust of all the
obligations to be performed by the Successor Trust hereunder on or before the
Closing Date and, in addition thereto, to the following further conditions:
6.1 All representations and warranties of the Successor Trust contained in
this Agreement shall be true and correct in all material respects as of the date
hereof 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 Successor Trust shall have delivered on the Closing Date to the
Current Fund a certificate executed in the Successor Trust's name by its
President or Vice President, in form and substance satisfactory to the Current
Fund, dated as of the Closing Date, to the effect that the representations and
warranties of the Successor Trust 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 Current Fund
shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Current
Fund.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SUCCESSOR TRUST
The obligations of the Successor Trust to consummate the transactions
provided for herein shall be subject to the performance by the Current Fund of
all the obligations to be performed by the Current Fund hereunder on or before
the Closing Date and, in addition thereto, to the following further conditions:
7.1 All representations and warranties of the Current 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 Current Fund shall have delivered to the Successor Trust on the
Closing Date a statement of the Current Fund's assets and liabilities, prepared
in accordance with generally accepted accounting principles consistently
applied, together with a certificate of the Treasurer or Assistant Treasurer of
the Current Fund as to its portfolio securities
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and the Current Fund's federal income tax basis and holding period for each such
portfolio security as of the Closing Date; and
7.3 The Current Fund shall have delivered to the Successor Trust on the
Closing Date a certificate executed in the Current Fund's name by its President
or Vice President, in form and substance satisfactory to the Successor Trust,
dated as of the Closing Date, to the effect that the representations and
warranties of the Current 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 Successor
Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Successor
Trust.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT FUND AND THE
SUCCESSOR TRUST
The obligations of the Current Fund and the Successor Trust are each
subject to the further conditions that on or before the Closing Date:
8.1 This Agreement and the transactions contemplated herein shall have
been approved by the requisite vote of the Current Fund's Shareholders in
accordance with applicable law;
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 to obtain damages or other relief in connection with,
the transactions contemplated hereby;
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 securities authorities) deemed necessary by the
Successor Trust or the Current 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
Successor Trust or the Current Fund, provided that either party hereto may for
itself waive any of such conditions;
8.4 The President of the Successor Trust shall have delivered a
certificate to the Current Fund on the Closing Date certifying that the
Successor Trust has taken all necessary action so that it shall be a registered
open-end investment company under the 1940 Act; and
8.5 The Current Fund and the Successor Trust shall have received on or
before the Closing Date an opinion of Xxxx and Xxxx satisfactory to the Current
Fund and the Successor Trust, substantially to the effect that, with respect to
the Current Fund, for federal income tax purposes:
8.5.A. The acquisition of all of the assets of a Current Fund by the
Successor Fund solely in exchange for the issuance of Successor Shares to
the Current Fund and the assumption by the Successor Fund of all of the
liabilities of the Current
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Fund, followed by the distribution in liquidation by the Current Fund of
such Successor Shares to the Current Fund Shareholders in exchange for
their Current Fund Shares and the termination of the Current Fund, will
constitute a reorganization within the meaning of Section 368(a)(1) of the
Code, and the Current Fund and the Successor Fund will each be "a party to
a reorganization" within the meaning of Section 368(b) of the Code;
8.5.B. No gain or loss will be recognized by the Current Fund upon
(i) the transfer of all of its assets to the Successor Fund solely in
exchange for the issuance of Successor Shares to the Current Fund and the
assumption by the Successor Fund of the Current Fund's liabilities and (ii)
the distribution by the Current Fund of the Successor Shares to the Current
Fund Shareholders;
8.5.C. No gain or loss will be recognized by any Successor Fund upon
its receipt of all of the Current Fund's assets solely in exchange for the
issuance of the Successor Shares to the Current Fund and the assumption by
the Successor Fund of all of the liabilities of the Current Fund;
8.5.D. The tax basis of the assets acquired by a Successor Fund from
the Current Fund will be the same as the tax basis of those assets in the
Current Fund's hands immediately before the transfer;
8.5.E. The tax holding period of the assets of the Current Fund in
the hands of the Successor Fund will include the Current Fund's tax holding
period for those assets;
8.5.F. The Current Fund's Shareholders will not recognize gain or
loss upon the exchange of all of their Current Fund Shares solely for
Successor Shares as part of the transaction;
8.5.G. The tax basis of the Successor Shares received by Current Fund
Shareholders in the transaction will be, for each shareholder, the same as
the tax basis of the Current Fund Shares surrendered in exchange therefor;
and
8.5.H. The tax holding period of the Successor Shares received by
Current Fund Shareholders will include, for each such Shareholder, the tax
holding period for the Current Fund Shares surrendered in exchange
therefor, provided that the Current Fund Shares were held as capital assets
on the date of the exchange.
The Current Fund and Successor Trust each agree to make and provide
representations with respect to the Current Fund and the Successor Fund which
are reasonably necessary to enable Xxxx and Xxxx to deliver an opinion
substantially as set forth in this paragraph 8.5, which opinion may address such
other federal income tax consequences, if any, as Xxxx and Xxxx believes to be
material to the transaction.
Each of the foregoing conditions precedent to the obligations of a party,
except for the receipt of the opinion of Xxxx and Xxxx set forth in paragraph
8.5, may be waived by that party.
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9. BROKERAGE FEES AND EXPENSES
9.1 The Successor Trust and the Current Fund each represent and warrant to
the other that there are no broker's or finder's fees payable in connection with
the transactions contemplated hereby.
9.2 The Current Fund and the Successor Fund shall each be liable 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; if the transactions are consummated, such expenses of the
Current Fund will be assumed by the Successor Fund as part of the transactions.
10. ENTIRE AGREEMENT
The Successor Trust and the Current Fund agree that neither party has made
any representation, warranty or covenant not set forth herein and that this
Agreement constitutes the entire agreement between the parties. The
representations, warranties and covenants contained herein 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
Successor Trust and the Current Fund. In addition, either the Successor Trust or
the Current Fund may at its option terminate this Agreement at or prior to the
Closing Date because:
11.1.A. There exists a material breach by the other party of any
representations, warranties or agreements contained herein to be performed
at or prior to the Closing Date; or
11.1.B. A condition herein expressed to be precedent to the
obligations of the terminating party has not been met and it reasonably
appears that it will not or cannot be met.
11.2 In the event of any such termination, there shall be no liability for
damages on the part of the Successor Trust or the Current Fund, or their
respective trustees, directors or officers, to the other party or its trustees,
directors or officers.
12. AMENDMENT
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by the parties; provided, however, that
following the approval of this Agreement by the Current Funds' Shareholders, no
such amendment may have the effect of changing the provisions for determining
the number of Successor Shares to be paid to the Current Fund Shareholders under
this Agreement to the detriment of the Current Fund Shareholders without their
further approval.
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13. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
13.1 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.
13.2 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
13.3 This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
13.4 This Agreement shall be binding upon 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.
13.5 All persons dealing with the Successor Trust must look solely to the
property of the Successor Trust for the enforcement of any claims against the
Successor Trust as neither the Trustees, officers, agents nor shareholders of
the Successor Trust assume any personal liability for obligations entered into
on behalf of the Successor Trust. No other series of the of the Successor Trust
hereafter established shall be responsible for any obligations assumed by the
Successor Trust on behalf of the Successor Fund under this Agreement.
13.6 A copy of the Agreement and Declaration of Trust of the Current Fund
is on file with the Secretary of State of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Current Fund as trustees and not individually and that the
obligations of this instrument are not binding upon any of the trustees,
officers, or shareholders of the Current Fund individually, but are binding only
upon the assets and property of the Current Fund.
14. 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 Current Fund or the
Successor Trust, each at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Secretary.
B-12
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer.
PIONEER THREE
By:
-------------------------------
Its:
------------------------------
Title
PIONEER MID-CAP FUND,
a Delaware business trust,
on behalf of
Pioneer Mid-Cap Fund
By:
-------------------------------
Its:
------------------------------
Title
B-13
