EXHIBIT B
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made as of the day of
January, 1996, by and between Pioneer Three, a Massachusetts business trust (the
"Current Fund"), and Pioneer Mid-Cap Growth 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
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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.
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
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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 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 ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇
& 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 ▇▇▇▇ and ▇▇▇▇ at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
on January __, 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
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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.
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
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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;
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
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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 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
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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 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
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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
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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 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
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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 ▇▇▇▇ and ▇▇▇▇ 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 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;
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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 ▇▇▇▇ and ▇▇▇▇ 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 ▇▇▇▇ and ▇▇▇▇ 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 ▇▇▇▇ and ▇▇▇▇ set forth in
paragraph 8.5, may be waived by that party.
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.
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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.
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
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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 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary.
B-14
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 GROWTH
FUND, a Delaware business
trust, on behalf of Pioneer
Mid-Cap Growth Fund
By:_____________________________
Its:____________________________
Title
B-15