AGREEMENT AND PLAN OF
REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made as of the [] day of
[April], 1998, by and between Pioneer Growth Trust, a Massachusetts business
trust (the "Current Trust"), and Pioneer Capital Growth Fund, Pioneer
Equity-Income Fund and Pioneer Gold Shares, each a business trust duly formed
under the laws of the State of Delaware (the "Successor Trusts").
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
conversion of the Current Trust into three distinct Delaware business trusts.
The Current Trust consists of three series, the names of which correspond to
each of the Successor Trusts -- Pioneer Capital Growth Fund, Pioneer
Equity-Income Fund and Pioneer Gold Shares (the "Corresponding Series"). The
conversion will involve the transfer of all of the assets of each of the
Corresponding Series of the Current Trust to that corresponding Successor Trust
having the same name as such individual Corresponding Series, solely in exchange
for (1) the assumption by each Successor Trust of all liabilities of the
Corresponding Series of the Current Trust and (2) the issuance by each Successor
Trust of shares of beneficial interest of each class of such Successor Trust
("Successor Trust Shares") to such Corresponding Series of the Current Trust
equal to the number of shares of each class of beneficial interest of such
Corresponding Series then outstanding, followed by the pro rata distribution on
the Closing Date (as defined below) of such Successor Trust Shares to the
holders of shares of each class of beneficial interest, withoutpar value per
share, of such Corresponding Series of the Current Trust (the "Current Trust
Shareholders") in exchange for their shares of beneficial interest of such class
of such Corresponding Series of the Current Trust ("Current Trust Shares") in
liquidation and dissolution of such Corresponding Series of the Current Trust,
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 EACH OF THE CORRESPONDING SERIES OF THE CURRENT
TRUST IN EXCHANGE FOR ASSUMPTION OF LIABILITIES AND ISSUANCE OF SHARES OF THE
RESPECTIVE SUCCESSOR TRUSTS; DISSOLUTION OF THE CURRENT TRUST
1.1 Subject to the terms and conditions set forth herein and on the
basis of the representations and warranties contained herein, each of the
Corresponding Series of the Current Trust agrees to transfer all of its assets
set forth in paragraph 1.2 and assign and transfer all of its liabilities to the
respective Successor Trust established solely for the purpose of acquiring all
of the assets and assuming all of the liabilities of such Corresponding Series
of the Current Trust. As of the date of this Agreement, the Successor Trusts
have not issued any Successor Trust Shares or commenced operations. Other than
such shares as may be issued to Pioneering Management Corporation or one of its
affiliates to establish the necessary minimum capitalization for registration
with the Securities and Exchange Commission ("SEC"), each of the Successor
Trusts agrees that in exchange for all of the assets of the respective
Corresponding Series of the Current Trust (1) such Successor Trust shall assume
all of the liabilities of the respective Corresponding Series, whether
contingent or otherwise, then existing and (2) such Successor Trust shall
deliver to the respective Corresponding Series the number of full and fractional
Successor Trust Shares equal to the number of each class of Current Trust Shares
than outstanding which collectively shall be equal to the value of the assets of
the respective Corresponding Series transferred to, less the liabilities of such
Corresponding Series assumed by, such Successor Trust (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 each of the Corresponding Series of the Current Trust
to be acquired by the respective Successor Trust 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 such
Corresponding Series and other property owned by such Corresponding Series and
any deferred or prepaid expenses shown as assets on the books of such
Corresponding Series on the Closing Date provided for in paragraph 3.1.
1.3 Immediately upon delivery to each of the Corresponding Series of
the Current Trust of Successor Trust Shares of the respective Successor Trust,
any duly authorized officer of such Corresponding Series as the then sole
shareholder of the respective Successor Trust shall (i) elect as Trustees of the
respective Successor Trust the persons who currently serve as Trustees of the
respective Corresponding Series; (ii) ratify the selection of the independent
accountants; (iii) approve a management contract for the respective Successor
Trust with PMC in the form most recently approved for such Corresponding Series;
and (iv) adopt the investment objectives, investment policies and investment
restrictions of such Corresponding Series.
1.4 As provided in paragraph 3.4, on the Closing Date each of the
Corresponding Series of the Current Trust will distribute in liquidation to its
shareholders of record ("Current Trust Shareholders"), determined as of the
close of business on the Closing Date, the Successor Trust Shares of each class
received from the respective Successor Trust pro rata in proportion to their
respective shares of beneficial interest of such class in the respective
Corresponding Series of the Current Trust ("Current Trust Shares"), in exchange
for such Current Trust Shares. Such distribution will be accomplished by the
transfer of the respective Successor Trust Shares then credited to the account
of the respective Corresponding Series on the share records of the respective
Successor Trust to open accounts on those records in the names of such Current
Trust Shareholders and representing the respective pro rata number of the
Successor Trust Shares of each class received from the respective Successor
Trust due such Current Trust Shareholders. The Successor Trusts shall not issue
certificates representing Successor Trust Shares in connection with such
distributions. Fractional Successor Trust Shares shall be rounded to the third
place after the decimal point.
1.5 As soon as practicable after the distribution of the Successor
Trust Shares as set forth in Section 1.4, each of the Corresponding Series of
the Current Trust 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 Trust Shares by each Successor Trust
Shareholder shall be maintained separately on the books of Pioneering Services
Corporation as the shareholder services and transfer agent for the Successor
Trusts.
1.7 Any transfer taxes payable upon issuance of Successor Trust Shares
in a name other than the registered holder of the Current Trust Shares on the
books of each of the Corresponding Series of the Current Trust as of that time
shall be paid by the person to whom such Successor Trust Shares are to be
distributed as a condition of such transfer.
2. VALUATION
2.1 The value of the Net Assets of each Corresponding Series of the
Current Trust to be acquired hereunder by the respective Successor Trust shall
be the net asset value computed as of the valuation time provided in the then
current prospectus of the respective Corresponding Series on the Closing Date
using the valuation procedures set forth in the then current prospectus or
statement of additional information.
2.2 The value of full and fractional Successor Trust Shares of each
Successor Trust to be issued in exchange for the Net Assets of each of the
Corresponding Series shall be equal to the value of such Net Assets on the
Closing Date, and the number of such Successor Trust Shares of each class to be
issued by the respective Successor Trusts shall equal the number of full and
fractional Current Trust Shares of each class of the respective Corresponding
Series on the Closing Date.
2.3 All computations of value shall be made by Pioneering Management
Corporation for the Current Trust and the Successor Trusts.
3. CLOSING AND CLOSING DATE
3.1 The transfer of the assets of the Corresponding Series of the
Current Trust in exchange for the assumption by the respective Successor Trusts
of the liabilities of such Corresponding Series and the issuance of Successor
Trust Shares to the respective Corresponding Series, as described above,
together with related acts necessary to consummate such acts (the "Closing"),
shall occur at the offices of [▇▇▇▇ and ▇▇▇▇ LLP at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇] on [April, 1998] ("Closing Date"), or at such other place
or date on or prior to [December 31, 1998] 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 the
Corresponding Series 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 the Current Trust are traded is disrupted so that accurate
appraisal of the value of the Net Assets of the Current Trust 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 Each Corresponding Series of the Current Trust 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 respective
Corresponding Series and the respective Successor Trust, of the conversion of
such Corresponding Series of the Current Trust to the respective Successor
Trust.
3.4 Pioneering Services Corporation, as shareholder services and
transfer agent for the Current Trust, shall deliver at the Closing certificates
as to the conversion on its books and records of the accounts of the
shareholders of the Corresponding Series of the Current Trust to accounts as
holders of shares of the respective Successor Trusts. Each Successor Trust shall
issue and deliver to the Current Trust a confirmation evidencing the shares of
Successor Trust to be credited on the Closing Date or provide evidence
satisfactory to the respective Corresponding Series that such shares of such
Successor Trust have been credited to the account of the Corresponding Series on
the books of such Successor Trust. At the Closing each party shall deliver to
the other such bills of sale, checks, assignments, share 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 each of the Corresponding Series of
the Current Trust shall be presented by the respective Corresponding Series of
the Current Trust 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 respective Corresponding Series of the
Current Trust to the Custodian for the account of the respective Successor Trust
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 a
Corresponding Series of the Current Trust shall be delivered to the respective
Successor Trust by the Custodian by recording the transfer of beneficial
ownership thereof on its records. The cash of a Corresponding Series of the
Current Trust to be delivered shall be in the form of currency or by the
Custodian crediting the respective Successor Trust's account maintained with the
Custodian with immediately available funds.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Current Trust represents and warrants as follows:
4.1.A. The Current Trust is a business trust duly authorized
to exist 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 Trust, to perform its obligations under this
Agreement. The Current 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 Current 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;
4.1.B. The Current Trust is a registered investment company
classified as a management company of the open-end diversified 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 Trust is not, and the execution, delivery
and performance of this Agreement will not result, in violation of any provision
of its Amended and Restated Declaration of Trust or By-laws, or any agreement,
indenture, instrument, contract, lease or other undertaking to which the Current
Trust is a party or by which the Current Trust is bound;
4.1.D. The Current Trust 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
its obligations under this Agreement) that will not be terminated without
liability to the Current Trust 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 Trust or any of its properties or assets. The
Current Trust knows of no facts that might form the basis for the institution of
such proceedings and the Current 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;
4.1.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 Trust 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 Trust has elected that each Corresponding
Series 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 Trust consists of
an unlimited number of shares of beneficial interest, no par value, divided into
three classes (Class A, Class B and Class C) of three separate series--the
Corresponding Series. All issued and outstanding shares of beneficial interest
of the Current Trust are, and at the Closing Date will be, duly and validly
issued and outstanding, fully paid and nonassessable. The Current Trust 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 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
thereunder applicable thereto;
4.1.J. All of the issued and outstanding Current Trust Shares
will at the time of the Closing be held by the persons and in the amounts as, on
behalf of each Corresponding Series, certified in accordance with the provisions
of paragraph 3.4;
4.1.K. At the Closing Date, the Current Trust, on behalf of
each Corresponding Series, will have good and marketable title to the assets to
be transferred to the Successor Trust 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 Trust 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), except as otherwise
disclosed in writing and accepted by the Successor Trust;
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 Trust and this Agreement constitutes
a valid and binding obligation of the Current Trust enforceable in accordance
with its terms, subject to the approval of the Current Trust's shareholders;
4.1.M. No consent, approval, authorization or order of any
court or governmental authority is required for the consummation by the Current
Trust of the transactions contemplated herein, except such as shall have been
obtained prior to the Closing Date.
4.2 Each of the Successor Trusts represents and warrants individually 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
Trust consists of one duly established and designated series;
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 Certificate of Trust, Agreement and 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 intends to qualify as a regulated
investment company under Subsection 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. Other than such shares as may be issued to Pioneering
Management Corporation or one of its affiliates to establish the necessary
minimum capitalization for registration with the SEC, prior to the Closing Date,
there shall be no issued and outstanding Successor Trust Shares or any other
securities of the Successor Trust; Successor Trust 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
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 TRUST AND THE SUCCESSOR TRUSTS
5.1 The Current Trust covenants that the Successor Trust 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 Trust covenants that it will assist the Successor
Trusts in obtaining such information as the Successor Trusts may reasonably
request concerning the beneficial ownership of Current Trust Shares.
5.3 The Current Trust will, from time to time, as and when requested by
the Successor Trusts 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 Trusts may deem necessary or desirable in
order to vest in, and confirm to, the Successor Trusts, title to, and possession
of, all the assets of the Current Trust to be sold, assigned, transferred and
delivered to the Successor Trusts hereunder and otherwise to carry out the
intent and purpose of this Agreement.
5.4 The Successor Trusts will, from time to time, as and when requested
by the Current 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 Current Trust may deem necessary or desirable in
order to vest in, and confirm to, the Current Trust, title to, and possession
of, the Successor Trust Shares issued, sold, assigned, transferred and delivered
hereunder and otherwise to carry out the intent and purpose of this Agreement.
5.5 The Successor Trusts 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 Trusts
and the Current Trust 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.
5.7 As promptly as practicable, but in any event within 60 days after
the Closing Date, each Corresponding Series of the Current Trust shall furnish
to the respective Successor Trust, in such form as is reasonably satisfactory to
such Successor Trust, a statement of the earnings and profits of such
Corresponding Series of the Current Trust for federal income tax purposes, and
of any capital loss carryovers and other items that will be carried over to the
respective Successor Trust as a result of Section 381 of the Code, and which
statement will be certified by the President or Treasurer of such Corresponding
Series of the Current Trust. Each Corresponding Series of the Current Trust
covenants that it has no earnings and profits that were accumulated by it or any
other entity during a taxable year when it or such entity did not qualify as a
regulated investment company under the Code or, if it has such earnings and
profits, that it will distribute them to its shareholders prior to the Closing
Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST
The obligations of the Corresponding Series of the Current Trust to
consummate the transactions provided for herein shall be subject to the
performance by the respective Successor Trusts of all the obligations to be
performed by the Successor Trusts 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 Trusts
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 Successor Trusts each shall have delivered on the Closing Date
to the Current Trust a certificate executed in such Successor Trust's name by
its President or Vice President, in form and substance satisfactory to the
Current Trust, dated as of the Closing Date, to the effect that the
representations and warranties of such 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 Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by the Current
Trust.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SUCCESSOR TRUSTS
The obligations of the Successor Trusts to consummate the transactions
provided for herein shall be subject to the performance by the Current Trust of
all the obligations to be performed 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 Trust 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 Each Corresponding Series of the Current Trust shall have delivered
to the respective Successor Trust on the Closing Date a statement of its assets
and liabilities, prepared in accordance with generally accepted accounting
principles consistently applied, together with a certificate of the Treasurer or
Assistant Treasurer of such Corresponding Series as to the portfolio securities
of such Corresponding Series and the federal income tax basis and holding period
for each such portfolio security as of the Closing Date; and
7.3 Each Corresponding Series of the Current Trust shall have delivered
to the respective Successor Trust on the Closing Date a certificate executed in
the name of such Corresponding Series by its President or Vice President, in
form and substance satisfactory to the respective Successor Trust, dated as of
the Closing Date, to the effect that the representations and warranties of such
Corresponding Series 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 respective
Successor Trust shall reasonably request.
Each of the foregoing conditions precedent may be waived by each
Successor Trust.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CURRENT TRUST AND
THE SUCCESSOR TRUSTS
The obligations of the Current Trust and the Successor Trusts are
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 each of the Corresponding Series
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 Trusts or the Current Trust 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 Trusts or the Current Trust, provided that either party hereto may for
itself waive any of such conditions;
8.4 The President or Vice President of each of the Successor Trusts
shall have delivered a certificate to the Current Trust on the Closing Date
certifying that such Successor Trust has taken all necessary action so that it
shall be a registered open-end investment company under the ▇▇▇▇ ▇▇▇.
8.5 The Current Trust and the respective Successor Trust shall have
received on or before the Closing Date an opinion of ▇▇▇▇ and ▇▇▇▇ LLP
satisfactory to the Current Trust and the respective Successor Trusts,
substantially to the effect that for federal income tax purposes:
8.5.A. The acquisition of all of the assets of each
Corresponding Series of the Current Trust by the respective Successor
Trusts solely in exchange for the issuance of Successor Trust Shares to
such Corresponding Series and the assumption by the Successor Trusts of
all of the liabilities of respective Corresponding Series, followed by
the distribution in liquidation by such Corresponding Series of
Successor Trust Shares to the shareholders of the such Corresponding
Series in exchange for their shares of such Corresponding Series and
the dissolution of such Corresponding Series, will constitute a
reorganization within the meaning of Section 368(a)(1) of the Code, and
such Corresponding Series and the respective Successor Trust 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 each
Corresponding Series of the Current Trust upon (i) the transfer of all
of its assets to the respective Successor Trust solely in exchange for
the issuance of Successor Trust Shares to such Corresponding Series and
the assumption by the respective Successor Trust of the liabilities of
such Corresponding Series of the Current Trust and (ii) the
distribution by such Corresponding Series of such Successor Trust
Shares to the shareholders of such Corresponding Series;
8.5.C. No gain or loss will be recognized by each Successor
Trust upon receipt of all of the assets of the respective Corresponding
Series of the Current Trust solely in exchange for the issuance of the
Successor Trust Shares to such Corresponding Series and the assumption
by the respective Successor Trust of all of the liabilities of the
respective Corresponding Series;
8.5.D. The tax basis of the assets of each Corresponding
Series of the Current Trust in the hands of the respective Successor
Trust will be, in each instance, the same as the tax basis of those
assets in the hands of such Corresponding Series immediately before the
transfer;
8.5.E. The tax holding period of the assets of each
Corresponding Series of the Current Trust in the hands of the
respective Successor Trust will, in each instance, include the tax
holding period of such Corresponding Series for those assets;
8.5.F. Current Trust Shareholders will not recognize gain or
loss upon the exchange of all of their shares of the Current Trust
solely for Successor Trust Shares as part of the transaction;
8.5.G. The tax basis of the Successor Trust Shares received by
Current Trust Shareholders in the transaction will be the same as the
tax basis of the shares of the Current Trust surrendered in exchange
therefor; and
8.5.H. The tax holding period of the Successor Trust Shares
received by Current Trust Shareholders will include, for each
shareholder, the tax holding period for the Current Trust Shares
surrendered in exchange therefor, provided that such Current Trust
Shares were held as capital assets on the date of the exchange.
Each of the Corresponding Series of the Current Trust and the
respective Successor Trust each agree to make and provide representations with
respect to such Corresponding Series and the respective Successor Trusts which
are reasonably necessary to enable ▇▇▇▇ and ▇▇▇▇ LLP 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, that ▇▇▇▇ and ▇▇▇▇ LLP 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 ▇▇▇▇ LLP set forth in
paragraph 8.5, may be waived by that party.
9. BROKERAGE FEES AND EXPENSES
9.1 Each Successor Trust and the respective Corresponding Series of the
Current Trust 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 Each of the Corresponding Series of the Current Trust and the
respective Successor Trust 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 each Corresponding Series of the
Current Trust will be assumed by the respective Successor Trust as part of the
transaction.
10. ENTIRE AGREEMENT
Each of the Successor Trusts and the respective Corresponding Series of
the Current Trust 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 Trust. In addition, either a Successor Trust or
the Current Trust 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 Trust, or their
respective trustees or officers, to the other party or its trustees 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 Current Trust Shareholders, no
such amendment may have the effect of changing the provisions for determining
the number of Successor Trust Shares to be paid to Current Trust Shareholders
under this Agreement to the detriment of Current Trust 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
respective successors and assigns any rights or remedies under or by reason of
this Agreement.
13.5 All persons dealing with the Current Trust and the Successor
Trusts must look solely to the property of the Current Trust and the Successor
Trust for the enforcement of any claims against such Trust as neither the
Trustees, officers, agents or shareholders of either Trust assume any personal
liability for obligations entered into on behalf of the Current Trust and the
Successor Trusts.
13.6 A copy of the Agreement and Declaration of Trust of the Current
Trust 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 Trust 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 Trust individually, but are
binding only upon the assets and property of the Current Trust.
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 Trust or the
Successor Trusts, each at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer.
PIONEER GROWTH TRUST,
a Massachusetts business trust,
on behalf of each of Pioneer Capital Growth Fund,
Pioneer Equity-Income Fund and Pioneer Gold Shares
By:_________________________________
Its:_________________________________
PIONEER CAPITAL GROWTH FUND,
a Delaware business trust
By:__________________________________
Its:__________________________________
PIONEER EQUITY-INCOME FUND,
a Delaware business trust
By:________________________________
Its:________________________________
PIONEER GOLD SHARES,
a Delaware business trust
By:________________________________
Its:________________________________
