AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of the 22nd day of August 2005, by and between each Pioneer trust listed on
Annex A hereto, each a Delaware statutory trust (the "Acquiring Trust"), on
behalf of its series (the "Acquiring Fund"), with its principal place of
business at 60 State Street, Boston, Massachusetts 02109, and AmSouth Funds, a
Massachusetts business trust (the "AmSouth Trust"), on behalf of each of its
series listed on Annex B hereto (the "Acquired Fund"), with its principal place
of business at 3435 Stelzer Road, Columbus, Ohio 43219. The Acquiring Fund and
the Acquired Fund are sometimes referred to collectively herein as the "Funds"
and individually as a "Fund."
This Agreement is intended to be and is adopted as a plan of a
"reorganization" as defined in Section 368(a)(1)(C) of the United States
Internal Revenue Code of 1986, as amended (the "Code") and the Treasury
Regulations thereunder. The reorganization (the "Reorganization") will consist
of (1) the transfer of all of the assets of the Acquired Fund to the Acquiring
Fund in exchange solely for (A) the issuance of Class A, Class B and Class Y
shares of beneficial interest of the Acquiring Fund (collectively, the
"Acquiring Fund Shares" and each, an "Acquiring Fund Share") to the Acquired
Fund, and (B) the assumption by the Acquiring Fund of the liabilities of the
Acquired Fund that are both set forth on the Statement of Assets and Liabilities
(as defined below) and also included in the calculation of net asset value
("NAV") on the closing date of the Reorganization (the "Closing Date")
(collectively, the "Assumed Liabilities"), and (2) the distribution by the
Acquired Fund, on or promptly after the Closing Date as provided herein, of the
Acquiring Fund Shares to the shareholders of the Acquired Fund in liquidation
and dissolution of the Acquired Fund, all upon the terms and conditions
hereinafter set forth in this Agreement.
WHEREAS, the Acquiring Trust and the AmSouth Trust are each registered
investment companies classified as management companies of the open-end type.
WHEREAS, the Acquiring Fund is authorized to issue shares of beneficial
interest.
WHEREAS, the Board of Trustees of the AmSouth Trust and the Board of
Trustees of the Acquiring Trust have determined that the Reorganization is in
the best interests of the Acquired Fund shareholders and the Acquiring Fund
shareholders, respectively, and is not dilutive of the interests of those
shareholders.
NOW, THEREFORE, in consideration of the premises of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND IN EXCHANGE FOR THE ACQUIRING
FUND SHARES AND ASSUMPTION OF THE ASSUMED LIABILITIES; LIQUIDATION AND
TERMINATION OF THE ACQUIRED FUND.
1.1 Subject to the terms and conditions herein set forth and on
the basis of the representations and warranties contained herein, the Acquired
Fund will transfer all of its assets as set forth in Paragraph 1.2 (the
"Acquired Assets") to the Acquiring Fund free and clear of all liens and
encumbrances (other than those arising under the Securities Act of 1933, as
amended (the "Securities Act"), liens for taxes not yet due and contractual
restrictions on the transfer of the Acquired Assets) and the Acquiring Fund
agrees in exchange therefor: (i) to issue to the Acquired Fund the number of
Acquiring Fund Shares, including fractional Acquiring Fund Shares, of each class
with an aggregate NAV equal to the NAV of the Acquired Fund attributable to the
corresponding class of the Acquired Fund's shares, as determined in the manner
set forth in Paragraphs 2.1 and 2.2; and (ii) to assume the Assumed Liabilities.
Such transactions shall take place at the Closing (as defined in Paragraph 3.1
below).
1.2 (a) The Acquired Assets shall consist of all of the Acquired
Fund's property, including, without limitation, all portfolio securities and
instruments, dividends and interest receivables, cash, goodwill, contractual
rights and choses in action of the Acquired Fund or the AmSouth Trust in respect
of the Acquired Fund, all other intangible property owned by the Acquired Fund,
originals or copies of all books and records of the Acquired Fund, and all other
assets of the Acquired Fund on the Closing Date. The Acquiring Fund shall also
be entitled to receive (or, to the extent agreed upon between the AmSouth Trust
and the Acquiring Trust, be provided
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access to) copies of all records that the AmSouth Trust is required to maintain
under the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules of the Securities and Exchange Commission (the
"Commission") thereunder to the extent such records pertain to the Acquired
Fund.
(b) The Acquired Fund has provided the Acquiring Fund with a
list of all of the Acquired Fund's securities and other assets as of the date of
execution of this Agreement, and the Acquiring Fund has provided the Acquired
Fund with a copy of the current fundamental investment policies and restrictions
and fair value procedures applicable to the Acquiring Fund. The Acquired Fund
reserves the right to sell any of such securities or other assets before the
Closing Date (except to the extent sales may be limited by representations of
the Acquired Fund contained herein and made in connection with the issuance of
the tax opinion provided for in Paragraph 8.5 hereof) and agrees not to acquire
any portfolio security that is not an eligible investment for, or that would
violate an investment policy or restriction of, the Acquiring Fund.
1.3 The Acquired Fund will endeavor to discharge all of its known
liabilities and obligations that are or will become due prior to the Closing.
1.4 On or as soon after the Closing Date as is conveniently
practicable (the "Liquidation Date"), the AmSouth Trust shall liquidate the
Acquired Fund and distribute pro rata to its shareholders of record, determined
as of the close of regular trading on the New York Stock Exchange on the Closing
Date (the "Acquired Fund Shareholders"), the Acquiring Fund Shares received by
the Acquired Fund pursuant to Paragraph 1.1 hereof. Each Acquired Fund
Shareholder shall receive the number of Acquiring Fund Shares of the class
corresponding to the class of shares of beneficial interest in the Acquired Fund
(the "Acquired Fund Shares") held by such Acquired Fund Shareholder that have an
aggregate NAV equal to the aggregate NAV of the Acquired Fund Shares held of
record by such Acquired Fund Shareholder on the Closing Date. Such liquidation
and distribution will be accomplished by the AmSouth Trust instructing the
Acquiring Trust to transfer the Acquiring Fund Shares then credited to the
account of the Acquired Fund on the books of the Acquiring Fund to open accounts
on the share records of the Acquiring Fund established and maintained by the
Acquiring Fund's transfer agent in the names of the Acquired Fund Shareholders
and representing the respective pro rata number of the Acquiring Fund Shares due
the Acquired Fund Shareholders. The AmSouth Trust shall promptly provide the
Acquiring Trust with evidence of such liquidation and distribution. All issued
and outstanding Acquired Fund Shares will simultaneously be cancelled on the
books of the Acquired Fund, and the Acquired Fund will be dissolved. The
Acquiring Fund shall not issue certificates representing the Acquiring Fund
Shares in connection with such exchange.
1.5 Ownership of Acquiring Fund Shares will be shown on the books
of the Acquiring Fund's transfer agent. Any certificates representing ownership
of Acquired Fund Shares that remain outstanding on the Closing Date shall be
deemed to be cancelled and shall no longer evidence ownership of Acquired Fund
Shares.
1.6 Any transfer taxes payable upon issuance of Acquiring Fund
Shares in a name other than the registered holder of the Acquired Fund Shares on
the books of the Acquired Fund as of that time shall, as a condition of such
issuance and transfer, be paid by the person to whom such Acquiring Fund Shares
are to be issued and transferred.
1.7 Any reporting responsibility of the AmSouth Trust with respect
to the Acquired Fund for taxable periods ending on or before the Closing Date,
including, but not limited to, the responsibility for filing of regulatory
reports, Tax Returns (as defined in Paragraph 4.1), or other documents with the
Commission, any state securities commissions, and any federal, state or local
tax authorities or any other relevant regulatory authority, is and shall remain
the responsibility of the AmSouth Trust.
2. VALUATION
2.1 The NAV of the Acquiring Fund Shares and the NAV of the
Acquired Fund shall, in each case, be determined as of the close of regular
trading on the New York Stock Exchange (generally, 4:00 p.m., Boston time) on
the Closing Date (the "Valuation Time"). The NAV of each Acquiring Fund Share
shall be computed by Pioneer Investment Management, Inc. (the "Acquiring Fund
Adviser") in the manner set forth in the Acquiring Trust's Declaration of Trust
(the "Declaration"), or By-Laws, and the Acquiring Fund's then-current
prospectus and statement of additional information. The NAV of the Acquired Fund
shall be computed by ASO Services
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Company, Inc. (the "Acquired Fund Administrator") in the manner set forth in the
Acquiring Trust's Declaration of Trust, or By-laws, and the Acquiring Fund's
then-current prospectus and statement of additional information. The Acquiring
Fund Adviser shall confirm to the Acquiring Fund the NAV of the Acquired Fund.
2.2 The number of Acquiring Fund Shares to be issued (including
fractional shares, if any) in exchange for the Acquired Assets and the
assumption of the Assumed Liabilities shall be determined by the Acquiring Fund
Adviser by dividing the NAV of the Acquired Fund, as determined in accordance
with Paragraph 2.1, by the NAV of each Acquiring Fund Share, as determined in
accordance with Paragraph 2.1.
2.3 The Acquiring Fund and the Acquired Fund shall cause the
Acquiring Fund Adviser and the Acquired Fund Administrator, respectively, to
deliver a copy of its valuation report to the other party at Closing. All
computations of value shall be made by the Acquiring Fund Adviser and the
Acquired Fund Administrator in accordance with its regular practice as pricing
agent for the Acquiring Fund and the Acquired Fund, respectively.
3. CLOSING AND CLOSING DATE
3.1 The Closing Date shall be September 23, 2005, or such later
date as the parties may agree to in writing. All acts necessary to consummate
the Reorganization (the "Closing") shall be deemed to take place simultaneously
as of 5:00 p.m. (Eastern time) on the Closing Date unless otherwise provided.
The Closing shall be held at the offices of Wilmer Cutler Pickering Hale and
Dorr LLP, 60 State Street, Boston, Massachusetts, or at such other place as the
parties may agree.
3.2 Portfolio securities that are held other than in book-entry
form in the name of AmSouth Bank (the "Acquired Fund Custodian") as record
holder for the Acquired Fund shall be presented by the Acquired Fund to Brown
Brothers Harriman & Co. (the "Acquiring Fund Custodian") for examination no
later than three business days preceding the Closing Date. Such portfolio
securities shall be delivered by the Acquired Fund to the Acquiring Fund
Custodian for the account of the Acquiring Fund on the Closing Date, duly
endorsed in proper form for transfer, in such condition as to constitute good
delivery thereof in accordance with the custom of brokers, and shall be
accompanied by all necessary federal and state stock transfer stamps or a check
for the appropriate purchase price thereof. Portfolio securities held of record
by the Acquired Fund Custodian in book-entry form on behalf of the Acquired Fund
shall be delivered by the Acquired Fund Custodian through the Depository Trust
Company to the Acquiring Fund Custodian and by the Acquiring Fund Custodian
recording the beneficial ownership thereof by the Acquiring Fund on the
Acquiring Fund Custodian's records. Any cash shall be delivered by the Acquired
Fund Custodian transmitting immediately available funds by wire transfer to the
Acquiring Fund Custodian the cash balances maintained by the Acquired Fund
Custodian and the Acquiring Fund Custodian crediting such amount to the account
of the Acquiring Fund.
3.3 The Acquiring Fund Custodian shall deliver within one business
day after the Closing a certificate of an authorized officer stating that: (a)
the Acquired Assets have been delivered in proper form to the Acquiring Fund on
the Closing Date, and (b) all necessary transfer taxes including all applicable
federal and state stock transfer stamps, if any, have been paid, or provision
for payment has been made in conjunction with the delivery of portfolio
securities as part of the Acquired Assets.
3.4 If on the Closing Date (a) the New York Stock Exchange is
closed to trading or trading thereon shall be restricted or (b) trading or the
reporting of trading on such exchange or elsewhere is disrupted so that accurate
appraisal of the NAV of the Acquiring Fund Shares or the Acquired Fund pursuant
to Paragraph 2.1 is impracticable, the Closing Date shall be postponed until the
first business day after the day when trading shall have been fully resumed and
reporting shall have been restored.
3.5 The Acquired Fund shall deliver at the Closing a list of the
names, addresses, federal taxpayer identification numbers and backup withholding
and nonresident alien withholding status and certificates of the Acquired Fund
Shareholders and the number and percentage ownership of outstanding Acquired
Fund Shares owned by each Acquired Fund Shareholder as of the Valuation Time,
certified by the President or a Secretary of the AmSouth Trust and its
Treasurer, Secretary or other authorized officer (the "Shareholder List") as
being an accurate record of the information (a) provided by the Acquired Fund
Shareholders, (b) provided by the Acquired Fund Custodian, or (c) derived from
the AmSouth Trust's records by such officers or one of the AmSouth Trust's
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service providers. The Acquiring Fund shall issue and deliver to the Acquired
Fund a confirmation evidencing the Acquiring Fund Shares to be credited on the
Closing Date, or provide evidence satisfactory to the Acquired Fund that such
Acquiring Fund Shares have been credited to the Acquired Fund's account on the
books of the Acquiring Fund. At the Closing, each party shall deliver to the
other such bills of sale, checks, assignments, stock certificates, receipts or
other documents as such other party or its counsel may reasonably request.
4. REPRESENTATIONS AND WARRANTIES
4.1 Except as set forth on a disclosure schedule previously
provided by the AmSouth Trust to the Acquiring Trust, the AmSouth Trust, on
behalf of the Acquired Fund, represents, warrants and covenants to the Acquiring
Fund, which representations, warranties and covenants will be true and correct
on the date hereof and on the Closing Date as though made on and as of the
Closing Date, as follows:
(a) The Acquired Fund is a series of the AmSouth Trust. The
AmSouth Trust is a business trust 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 Acquired Fund's
shareholders, to perform its obligations under this Agreement. The Acquired Fund
is not required to qualify to do business in any jurisdiction in which it is not
so qualified or where failure to qualify would subject it to any material
liability or disability. Each of the AmSouth Trust and the Acquired Fund has all
necessary federal, state and local authorizations to own all of its properties
and assets and to carry on its business as now being conducted;
(b) The AmSouth Trust is a registered investment company
classified as a management company of the open-end type, and its registration
with the Commission as an investment company under the Investment Company Act is
in full force and effect;
(c) The AmSouth Trust is not in violation of, and the execution
and delivery of this Agreement and the performance of its obligations under this
Agreement in respect of the Acquired Fund will not result in a violation of, any
provision of the AmSouth Trust's Declaration of Trust or By-Laws or any material
agreement, indenture, instrument, contract, lease or other undertaking with
respect to the Acquired Fund to which the AmSouth Trust is a party or by which
the Acquired Fund or any of its assets are bound;
(d) No litigation or administrative proceeding or investigation
of or before any court or governmental body is currently pending or to its
knowledge threatened against the Acquired Fund or any of the Acquired Fund's
properties or assets. The Acquired Fund knows of no facts which might form the
basis for the institution of such proceedings. Neither the AmSouth Trust nor the
Acquired Fund is a party to or subject to the provisions of any order, decree or
judgment of any court or governmental body which materially adversely affects
the Acquired Fund's business or its ability to consummate the transactions
contemplated herein or would be binding upon the Acquiring Fund as the successor
to the Acquired Fund;
(e) The Acquired Fund has no material contracts or other
commitments (other than this Agreement or agreements for the purchase and sale
of securities entered into in the ordinary course of business and consistent
with its obligations under this Agreement) which will not be terminated at or
prior to the Closing Date and no such termination will result in liability to
the Acquired Fund (or the Acquiring Fund);
(f) The statement of assets and liabilities of the Acquired
Fund, and the related statements of operations and changes in net assets, as of
and for the fiscal year ended July 31, 2005, have been audited by an independent
registered public accounting firm retained by the Acquired Fund, and are in
accordance with generally accepted accounting principles ("GAAP") consistently
applied and fairly reflect, in all material respects, the financial condition of
the Acquired Fund as of such date and the results of its operations for the
period then ended, and all known liabilities, whether actual or contingent, of
the Acquired Fund as of the date thereof are disclosed therein. The Statement of
Assets and Liabilities will be in accordance with GAAP consistently applied and
will fairly reflect, in all material respects, the financial condition of the
Acquired Fund as of such date and the results of its operations for the period
then ended. Except for the Assumed Liabilities, the Acquired Fund will not have
any known or contingent liabilities on the Closing Date. No significant
deficiency, material weakness, fraud, significant change or other factor that
could significantly affect the internal controls of the Acquired Fund has been
disclosed or is required to be disclosed in the Acquired Fund's reports on Form
N-CSR to enable the chief executive officer and
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chief financial officer or other officers of the Acquired Fund to make the
certifications required by the Sarbanes-Oxley Act, and no deficiency, weakness,
fraud, change, event or other factor exists that will be required to be
disclosed in the Acquiring Fund's Form N-CSR after the Closing Date;
(g) Since the most recent fiscal year end, except as
specifically disclosed in the Acquired Fund's prospectus, its statement of
additional information as in effect on the date of this Agreement, or its
semi-annual report for the period ended January 31, 2005, there has not been any
material adverse change in the Acquired Fund's financial condition, assets,
liabilities, business or prospects, or any incurrence by the Acquired Fund of
indebtedness, except for normal contractual obligations incurred in the ordinary
course of business or in connection with the settlement of purchases and sales
of portfolio securities. For the purposes of this subparagraph (g) (but not for
any other purpose of this Agreement), a decline in NAV per Acquired Fund Share
arising out of its normal investment operations or a decline in market values of
securities in the Acquired Fund's portfolio or a decline in net assets of the
Acquired Fund as a result of redemptions shall not constitute a material adverse
change;
(h) (A) For each taxable year of its operation since its
inception, the Acquired Fund has satisfied, and for the current taxable year it
will satisfy, the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company. The Acquired Fund will qualify as
such as of the Closing Date and will satisfy the diversification requirements of
Section 851(b)(3) of the Code without regard to the last sentence of Section
851(d) of the Code. The Acquired Fund has not taken any action, caused any
action to be taken or caused any action to fail to be taken which action or
failure could cause the Acquired Fund to fail to qualify as a regulated
investment company under the Code;
(B) Within the times and in the manner prescribed by
law, the Acquired Fund has properly filed on a timely basis all Tax Returns (as
defined below) that it was required to file, and all such Tax Returns were
complete and accurate in all material respects. The Acquired Fund has not been
informed by any jurisdiction that the jurisdiction believes that the Acquired
Fund was required to file any Tax Return that was not filed; and the Acquired
Fund does not know of any basis upon which a jurisdiction could assert such a
position;
(C) The Acquired Fund has timely paid, in the manner
prescribed by law, all Taxes (as defined below), which were due and payable or
which were claimed to be due;
(D) All Tax Returns filed by the Acquired Fund
constitute complete and accurate reports of the respective Tax liabilities and
all attributes of the Acquired Fund or, in the case of information returns and
payee statements, the amounts required to be reported, and accurately set forth
all items required to be included or reflected in such returns;
(E) The Acquired Fund has not waived or extended any
applicable statute of limitations relating to the assessment or collection of
Taxes;
(F) The Acquired Fund has not been notified that any
examinations of the Tax Returns of the Acquired Fund are currently in progress
or threatened, and no deficiencies have been asserted or assessed against the
Acquired Fund as a result of any audit by the Internal Revenue Service or any
state, local or foreign taxing authority, and, to its knowledge, no such
deficiency has been proposed or threatened;
(G) The Acquired Fund has no actual or potential
liability for any Tax obligation of any taxpayer other than itself. The Acquired
Fund is not and has never been a member of a group of corporations with which it
has filed (or been required to file) consolidated, combined or unitary Tax
Returns. The Acquired Fund is not a party to any Tax allocation, sharing, or
indemnification agreement;
(H) The unpaid Taxes of the Acquired Fund for tax
periods through the Closing Date do not exceed the accruals and reserves for
Taxes (excluding accruals and reserves for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the Statement of
Assets and Liabilities, as defined in paragraph 5.7, rather than in any notes
thereto (the "Tax Reserves"). All Taxes that the Acquired Fund is or was
required by law to withhold or collect have been duly withheld or collected and,
to the extent required, have been timely paid to the proper governmental agency;
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(I) The Acquired Fund has delivered to the Acquiring
Fund or made available to the Acquiring Fund complete and accurate copies of all
Tax Returns of the Acquired Fund, together with all related examination reports
and statements of deficiency for all periods not closed under the applicable
statutes of limitations and complete and correct copies of all private letter
rulings, revenue agent reports, information document requests, notices of
proposed deficiencies, deficiency notices, protests, petitions, closing
agreements, settlement agreements, pending ruling requests and any similar
documents submitted by, received by or agreed to by or on behalf of the Acquired
Fund. The Acquired Fund has disclosed on its federal income Tax Returns all
positions taken therein that could give rise to a substantial understatement of
federal income Tax within the meaning of Section 6662 of the Code;
(J) The Acquired Fund has not undergone, has not
agreed to undergo, and is not required to undergo (nor will it be required as a
result of the transactions contemplated in this Agreement to undergo) a change
in its method of accounting resulting in an adjustment to its taxable income
pursuant to Section 481 of the Code. The Acquired Fund will not be required to
include any item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date
as a result of any (i) change in method of accounting for a taxable period
ending on or prior to the Closing Date under Section 481(c) of the Code (or any
corresponding or similar provision of state, local or foreign income Tax law);
(ii) "closing agreement" as described in Section 7121 of the Code (or any
corresponding or similar provision of state, local or foreign income Tax law)
executed on or prior to the Closing Date; (iii) installment sale or open
transaction disposition made on or prior to the Closing Date; or (iv) prepaid
amount received on or prior to the Closing Date;
(K) The Acquired Fund will not have taken or agreed
to take any action, and will not be aware of any agreement, plan or other
circumstance, that is inconsistent with the representations set forth in the
Acquired Fund Tax Representation Certificate to be delivered pursuant to
paragraph 7.4;
(L) There are (and as of immediately following the
Closing there will be) no liens on the assets of the Acquired Fund relating to
or attributable to Taxes, except for Taxes not yet due and payable;
(M) The Tax bases of the assets of the Acquired Fund
are accurately reflected on the Acquired Fund's Tax books and records;
(N) The Acquired Fund's Tax attributes are not
limited under the Code (including but not limited to any capital loss carry
forward limitations under Sections 382 or 383 of the Code and the Treasury
Regulations thereunder) or comparable provisions of state law; and
(O) For purposes of this Agreement, "Taxes" or "Tax"
shall mean all taxes, charges, fees, levies or other similar assessments or
liabilities, including without limitation income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property, sales, use,
transfer, withholding, employment, unemployment, insurance, social security,
business license, business organization, environmental, workers compensation,
payroll, profits, license, lease, service, service use, severance, stamp,
occupation, windfall profits, customs, duties, franchise and other taxes imposed
by the United States of America or any state, local or foreign government, or
any agency thereof, or other political subdivision of the United States or any
such government, and any interest, fines, penalties, assessments or additions to
tax resulting from, attributable to or incurred in connection with any tax or
any contest or dispute thereof; and "Tax Returns" shall mean all reports,
returns, declarations, statements or other information required to be supplied
to a governmental or regulatory authority or agency, or to any other person, in
connection with Taxes and any associated schedules or work papers produced in
connection with such items;
(i) All issued and outstanding Acquired Fund Shares are, and at
the Closing Date will be, legally issued and outstanding, fully paid and
nonassessable by the Acquired Fund. All of the issued and outstanding Acquired
Fund Shares will, at the time of Closing, be held of record by the persons and
in the amounts set forth in the Shareholder List submitted to the Acquiring Fund
pursuant to Paragraph 3.5 hereof. The Acquired Fund does not have outstanding
any options, warrants or other rights to subscribe for or purchase any Acquired
Fund Shares, nor is there outstanding any security convertible into any Acquired
Fund Shares;
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(j) At the Closing Date, the Acquired Fund will have good and
marketable title to the Acquired Assets, and full right, power and authority to
sell, assign, transfer and deliver the Acquired Assets to the Acquiring Fund,
and, upon delivery and payment for the Acquired Assets, the Acquiring Fund will
acquire good and marketable title thereto, subject to no restrictions on the
full transfer thereof, except such restrictions as might arise under the
Securities Act;
(k) The AmSouth Trust has the trust power and authority to
enter into and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement have been duly authorized by all
necessary action on the part of the AmSouth Trust's Board of Trustees, and,
subject to the approval of the Acquired Fund's shareholders, assuming due
authorization, execution and delivery by the Acquiring Fund, this Agreement will
constitute a valid and binding obligation of the Acquired Fund, enforceable in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights and to general equity principles;
(l) The information to be furnished by the Acquired Fund to the
Acquiring Fund for use in applications for orders, registration statements,
proxy materials and other documents which may be necessary in connection with
the transactions contemplated hereby and any information necessary to compute
the total return of the Acquired Fund shall be accurate and complete and shall
comply in all material respects with federal securities and other laws and
regulations applicable thereto;
(m) The information included in the proxy statement (the "Proxy
Statement") forming part of the Acquiring Fund's Registration Statement on Form
N-14 filed in connection with this Agreement (the "Registration Statement") that
has been furnished in writing by the Acquired Fund to the Acquiring Fund for
inclusion in the Registration Statement, on the effective date of that
Registration Statement and on the Closing Date, will conform in all material
respects to the applicable requirements of the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Investment
Company Act and the rules and regulations of the Commission thereunder and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(n) Upon the effectiveness of the Registration Statement, no
consent, approval, authorization or order of any court or governmental authority
is required for the consummation by the AmSouth Trust or the Acquired Fund of
the transactions contemplated by this Agreement;
(o) All of the issued and outstanding Acquired Fund Shares have
been offered for sale and sold in compliance in all material respects with all
applicable federal and state securities laws, except as may have been previously
disclosed in writing to the Acquiring Fund;
(p) The prospectus and statement of additional information of
the Acquired Fund and any amendments or supplements thereto, furnished to the
Acquiring Fund, did not as of their dates or the dates of their distribution to
the public contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which such statements were made, not
materially misleading;
(q) The Acquired Fund currently complies in all material
respects with, and since its organization has complied in all material respects
with, the requirements of, and the rules and regulations under, the Investment
Company Act, the Securities Act, the Exchange Act, state "Blue Sky" laws and all
other applicable federal and state laws or regulations. The Acquired Fund
currently complies in all material respects with, and since its organization has
complied in all material respects with, all investment objectives, policies,
guidelines and restrictions and any compliance procedures established by the
AmSouth Trust with respect to the Acquired Fund. All advertising and sales
material used by the Acquired Fund complies in all material respects with and
has complied in all material respects with the applicable requirements of the
Securities Act, the Investment Company Act, the rules and regulations of the
Commission, and, to the extent applicable, the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD") and any applicable state
regulatory authority. All registration statements, prospectuses, reports, proxy
materials or other filings required to be made or filed with the Commission, the
NASD or any state securities authorities by the Acquired Fund have been duly
filed and have been approved or declared effective, if such approval or
declaration of effectiveness is required by law. Such registration statements,
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prospectuses, reports, proxy materials and other filings under the Securities
Act, the Exchange Act and the Investment Company Act (i) are or were in
compliance in all material respects with the requirements of all applicable
statutes and the rules and regulations thereunder and (ii) do not or did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not false or misleading;
(r) Neither the Acquired Fund nor, to the knowledge of the
Acquired Fund, any "affiliated person" of the Acquired Fund has been convicted
of any felony or misdemeanor, described in Section 9(a)(1) of the Investment
Company Act, nor, to the knowledge of the Acquired Fund, has any affiliated
person of the Acquired Fund been the subject, or presently is the subject, of
any proceeding or investigation with respect to any disqualification that would
be a basis for denial, suspension or revocation of registration as an investment
adviser under Section 203(e) of the Investment Advisers Act of 1940, as amended
(the "Investment Advisers Act"), or Rule 206(4)-4(b) thereunder or of a
broker-dealer under Section 15 of the Exchange Act, or for disqualification as
an investment adviser, employee, officer or director of an investment company
under Section 9 of the Investment Company Act; and
(s) The tax representation certificate to be delivered by
AmSouth Trust on behalf of the Acquired Fund to the Acquiring Trust and Wilmer
Cutler Pickering Hale and Dorr LLP at the Closing pursuant to Paragraph 7.4 (the
"Acquired Fund Tax Representation Certificate") will not on the Closing Date
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
4.2 Except as set forth on a disclosure schedule previously
provided by the Acquiring Trust to the AmSouth Trust, the Acquiring Trust, on
behalf of the Acquiring Fund, represents, warrants and covenants to the Acquired
Fund, which representations, warranties and covenants will be true and correct
on the date hereof and on the Closing Date as though made on and as of the
Closing Date, as follows:
(a) The Acquiring Fund is a series of the Acquiring Trust. The
Acquiring Trust is a statutory trust duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Acquiring Trust has
the power to own all of its properties and assets and to perform the obligations
under this Agreement. The Acquiring Fund is not required to qualify to do
business in any jurisdiction in which it is not so qualified or where failure to
qualify would subject it to any material liability or disability. Each of the
Acquiring Trust and the Acquiring Fund has all necessary federal, state and
local authorizations to own all of its properties and assets and to carry on its
business as now being conducted;
(b) The Acquiring Trust is a registered investment company
classified as a management company of the open-end type, and its registration
with the Commission as an investment company under the Investment Company Act is
in full force and effect;
(c) The current prospectus and statement of additional
information of the Acquiring Fund and each prospectus and statement of
additional information for the Acquiring Fund used during the three years
previous to the date of this Agreement, and any amendment or supplement to any
of the foregoing, conform or conformed at the time their distribution to the
public in all material respects to the applicable requirements of the Securities
Act and the Investment Company Act and the rules and regulations of the
Commission thereunder and do not or did not at the time of their distribution to
the public include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading;
(d) The Acquiring Fund's registration statement on Form N-1A
that will be in effect on the Closing Date, and the prospectus and statement of
additional information of the Acquiring Fund included therein, will conform in
all material respects with the applicable requirements of the Securities Act and
the Investment Company Act and the rules and regulations of the Commission
thereunder, and did not as of the effective date thereof and will not as of the
Closing Date contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading;
-8-
(e) The Registration Statement, the Proxy Statement and
statement of additional information with respect to the Acquiring Fund, and any
amendments or supplements thereto in effect on or prior to the Closing Date
included in the Registration Statement (other than written information furnished
by the Acquired Fund for inclusion therein, as covered by the Acquired Fund's
warranty in Paragraph 4.1(m) hereof) will conform in all material respects to
the applicable requirements of the Securities Act and the Investment Company Act
and the rules and regulations of the Commission thereunder. Neither the
Registration Statement nor the Proxy Statement (other than written information
furnished by the Acquired Fund for inclusion therein, as covered by the Acquired
Fund's warranty in Paragraph 4.1(m) hereof) includes or will include any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(f) The Acquiring Trust is not in violation of, and the
execution and delivery of this Agreement and performance of its obligations
under this Agreement will not result in a violation of, any provisions of the
Declaration of Trust or by-laws of the Acquiring Trust or any material
agreement, indenture, instrument, contract, lease or other undertaking with
respect to the Acquiring Fund to which the Acquiring Trust is a party or by
which the Acquiring Fund or any of its assets is bound;
(g) No litigation or administrative proceeding or investigation
of or before any court or governmental body is currently pending or threatened
against the Acquiring Fund or any of the Acquiring Fund's properties or assets.
The Acquiring Fund knows of no facts which might form the basis for the
institution of such proceedings. Neither the Acquiring Trust nor the Acquiring
Fund is a party to or subject to the provisions of any order, decree or judgment
of any court or governmental body which materially adversely affects the
Acquiring Fund's business or its ability to consummate the transactions
contemplated herein;
(h) The statement of assets and liabilities of the Acquiring
Fund, and the related statements of income and changes in NAV, as of and for the
fiscal year ended November 30, 2004 have been audited by Ernst & Young LLP,
independent registered public accounting firm, and are in accordance with GAAP
consistently applied and fairly reflect, in all material respects, the financial
condition of the Acquiring Fund as of such date and the results of its
operations for the period then ended, and all known liabilities, whether actual
or contingent, of the Acquiring Fund as of the date thereof are disclosed
therein;
(i) Since the most recent fiscal year end, except as
specifically disclosed in the Acquiring Fund's prospectus, its statement of
additional information as in effect on the date of this Agreement, or its semi-
annual report for the period ended May 31, 2005, there has not been any material
adverse change in the Acquiring Fund's financial condition, assets, liabilities,
business or prospects, or any incurrence by the Acquiring Fund of indebtedness,
except for normal contractual obligations incurred in the ordinary course of
business or in connection with the settlement of purchases and sales of
portfolio securities. For the purposes of this subparagraph (i) (but not for any
other purpose of this Agreement), a decline in NAV per Acquiring Fund Share
arising out of its normal investment operations or a decline in market values of
securities in the Acquiring Fund's portfolio or a decline in net assets of the
Acquiring Fund as a result of redemptions shall not constitute a material
adverse change;
(j) (A) For each taxable year of its operation since its
inception, the Acquiring Fund has satisfied, and for the current taxable year it
will satisfy, the requirements of Subchapter M of the Code for qualification and
treatment as a regulated investment company and will qualify as such as of the
Closing Date and will satisfy the diversification requirements of Section
851(b)(3) of the Code without regard to the last sentence of Section 851(d) of
the Code. The Acquiring Fund has not taken any action, caused any action to be
taken or caused any action to fail to be taken which action or failure could
cause the Acquiring Fund to fail to qualify as a regulated investment company
under the Code;
(B) Within the times and in the manner prescribed by
law, the Acquiring Fund has properly filed on a timely basis all Tax Returns
that it was required to file, and all such Tax Returns were complete and
accurate in all material respects. The Acquiring Fund has not been informed by
any jurisdiction that the jurisdiction believes that the Acquiring Fund was
required to file any Tax Return that was not filed; and the Acquiring Fund does
not know of any basis upon which a jurisdiction could assert such a position;
-9-
(C) The Acquiring Fund has timely paid, in the manner
prescribed by law, all Taxes that were due and payable or that were claimed to
be due;
(D) All Tax Returns filed by the Acquiring Fund
constitute complete and accurate reports of the respective liabilities for Taxes
and all attributes of the Acquiring Fund or, in the case of information returns
and payee statements, the amounts required to be reported, and accurately set
forth all items required to be included or reflected in such returns;
(E) The Acquiring Fund has not waived or extended any
applicable statute of limitations relating to the assessment or collection of
Taxes;
(F) The Acquiring Fund has not been notified that any
examinations of the Tax Returns of the Acquiring Fund are currently in progress
or threatened, and no deficiencies have been asserted or assessed against the
Acquiring Fund as a result of any audit by the Internal Revenue Service or any
state, local or foreign taxing authority, and, to its knowledge, no such
deficiency has been proposed or threatened;
(G) The Acquiring Fund has no actual or potential
liability for any Tax obligation of any taxpayer other than itself. The
Acquiring Fund is not and has never been a member of a group of corporations
with which it has filed (or been required to file) consolidated, combined or
unitary Tax Returns. The Acquiring Fund is not a party to any Tax allocation,
sharing, or indemnification agreement;
(H) The unpaid Taxes of the Acquiring Fund for tax
periods through the Closing Date do not exceed the accruals and reserves for
Taxes (excluding accruals and reserves for deferred Taxes established to reflect
timing differences between book and Tax income) set forth in the financial
statements referred to in paragraph 4.2(h). All Taxes that the Acquiring Fund is
or was required by law to withhold or collect have been duly withheld or
collected and, to the extent required, have been timely paid to the proper
governmental agency;
(I) The Acquiring Trust has delivered to AmSouth
Trust or made available to AmSouth Trust complete and accurate copies of all Tax
Returns of the Acquiring Fund, together with all related examination reports and
statements of deficiency for all periods not closed under the applicable
statutes of limitations and complete and correct copies of all private letter
rulings, revenue agent reports, information document requests, notices of
proposed deficiencies, deficiency notices, protests, petitions, closing
agreements, settlement agreements, pending ruling requests and any similar
documents submitted by, received by or agreed to by or on behalf of the
Acquiring Fund. The Acquiring Fund has disclosed on its federal income Tax
Returns all positions taken therein that could give rise to a substantial
understatement of federal income Tax within the meaning of Section 6662 of the
Code;
(J) The Acquiring Fund has not undergone, has not
agreed to undergo, and is not required to undergo (nor will it be required as a
result of the transactions contemplated in this Agreement to undergo) a change
in its method of accounting resulting in an adjustment to its taxable income
pursuant to Section 481 of the Code. The Acquiring Fund will not be required to
include any item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date
as a result of any (i) change in method of accounting for a taxable period
ending on or prior to the Closing Date under Section 481(c) of the Code (or any
corresponding or similar provision of state, local or foreign income Tax law);
(ii) "closing agreement" as described in Section 7121 of the Code (or any
corresponding or similar provision of state, local or foreign income Tax law)
executed on or prior to the Closing Date; (iii) installment sale or open
transaction disposition made on or prior to the Closing Date; or (iv) prepaid
amount received on or prior to the Closing Date;
(K) The Acquiring Fund will not have taken or agreed
to take any action, and will not be aware of any agreement, plan or other
circumstance, that is inconsistent with the representations set forth in the
Acquiring Fund Tax Representation Certificate to be delivered pursuant to
paragraph 6.3;
(L) There are (and as of immediately following the
Closing there will be) no liens on the assets of the Acquiring Fund relating to
or attributable to Taxes, except for Taxes not yet due and payable;
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(M) The Tax bases of the assets of the Acquiring Fund
are accurately reflected on the Acquiring Fund's Tax books and records;
(N) The Acquiring Fund's Tax attributes are not
limited under the Code (including but not limited to any capital loss carry
forward limitations under Sections 382 or 383 of the Code and the Treasury
Regulations thereunder) or comparable provisions of state law, except as set
forth on Schedule 4.2;
(k) The authorized capital of the Acquiring Fund consists of an
unlimited number of shares of beneficial interest, no par value per share. As of
the Closing Date, the Acquiring Fund will be authorized to issue an unlimited
number of shares of beneficial interest, no par value per share. The Acquiring
Fund Shares to be issued and delivered to the Acquired Fund for the account of
the Acquired Fund Shareholders pursuant to the terms of this Agreement will have
been duly authorized on the Closing Date and, when so issued and delivered, will
be legally issued and outstanding, fully paid and non-assessable. The Acquiring
Fund does not have outstanding any options, warrants or other rights to
subscribe for or purchase any Acquiring Fund shares, nor is there outstanding
any security convertible into any Acquiring Fund shares;
(l) All issued and outstanding Acquiring Fund Shares are, and
on the Closing Date will be, legally issued, fully paid and non-assessable and
have been offered and sold in every state and the District of Columbia in
compliance in all material respects with all applicable federal and state
securities laws;
(m) The Acquiring Trust has the trust power and authority to
enter into and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement have been duly authorized by all
necessary action on the part of the Acquiring Trust's Board of Trustees, and,
assuming due authorization, execution and delivery by the Acquired Fund, this
Agreement will constitute a valid and binding obligation of the Acquiring Fund,
enforceable in accordance with its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights and to general equity principles;
(n) The information to be furnished in writing by the Acquiring
Fund or the Acquiring Fund Adviser for use in applications for orders,
registration statements, proxy materials and other documents which may be
necessary in connection with the transactions contemplated hereby shall be
accurate and complete in all material respects and shall comply in all material
respects with federal securities and other laws and regulations applicable
thereto or the requirements of any form for which its use is intended, and shall
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the information provided not misleading;
(o) No consent, approval, authorization or order of or filing
with any court or governmental authority is required for the execution of this
Agreement or the consummation of the transactions contemplated by the Agreement
by the Acquiring Fund, except for the registration of the Acquiring Fund Shares
under the Securities Act and the Investment Company Act;
(p) The Acquiring Fund currently complies in all material
respects with, and since its organization has complied in all material respects
with, the requirements of, and the rules and regulations under, the Investment
Company Act, the Securities Act, the Exchange Act, state "Blue Sky" laws and all
other applicable federal and state laws or regulations. The Acquiring Fund
currently complies in all material respects with, and since its organization has
complied in all material respects with, all investment objectives, policies,
guidelines and restrictions and any compliance procedures established by the
Acquiring Trust with respect to the Acquiring Fund. All advertising and sales
material used by the Acquiring Fund complies in all material respects with and
has complied in all material respects with the applicable requirements of the
Securities Act, the Investment Company Act, the rules and regulations of the
Commission, and, to the extent applicable, the Conduct Rules of the NASD and any
applicable state regulatory authority. All registration statements,
prospectuses, reports, proxy materials or other filings required to be made or
filed with the Commission, the NASD or any state securities authorities by the
Acquiring Fund have been duly filed and have been approved or declared
effective, if such approval or declaration of effectiveness is required by law.
Such registration statements, prospectuses, reports, proxy materials and other
filings under the Securities Act, the Exchange Act and the Investment Company
Act (i) are or were in compliance in all material respects with the requirements
of all applicable statutes and the rules and regulations thereunder and (ii) do
not or did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated
-11-
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not false or misleading;
(q) Neither the Acquiring Fund nor, to the knowledge of the
Acquiring Fund, any "affiliated person" of the Acquiring Fund has been convicted
of any felony or misdemeanor, described in Section 9(a)(1) of the Investment
Company Act, nor, to the knowledge of the Acquiring Fund, has any affiliated
person of the Acquiring Fund been the subject, or presently is the subject, of
any proceeding or investigation with respect to any disqualification that would
be a basis for denial, suspension or revocation of registration as an investment
adviser under Section 203(e) of the Investment Advisers Act or Rule 206(4)-4(b)
thereunder or of a broker-dealer under Section 15 of the Exchange Act, or for
disqualification as an investment adviser, employee, officer or director of an
investment company under Section 9 of the Investment Company Act; and
(r) The tax representation certificate to be delivered by the
Acquiring Trust on behalf of the Acquiring Fund to the AmSouth Trust and Wilmer
Cutler Pickering Hale and Dorr LLP at Closing pursuant to Section 6.3 (the
"Acquiring Fund Tax Representation Certificate") will not on the Closing Date
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
5. COVENANTS OF THE FUNDS
5.1 The Acquired Fund will operate the Acquired Fund's business in
the ordinary course of business between the date hereof and the Closing Date. It
is understood that such ordinary course of business will include the declaration
and payment of customary dividends and other distributions and any other
dividends and other distributions necessary or advisable (except to the extent
dividends or other distributions that are not customary may be limited by
representations made in connection with the issuance of the tax opinion
described in Paragraph 8.5 hereof), in each case payable either in cash or in
additional shares.
5.2 The AmSouth Trust will call a special meeting of the Acquired
Fund's shareholders to consider approval of this Agreement and act upon the
matters set forth in the Proxy Statement.
5.3 The Acquiring Fund will prepare the notice of meeting, form of
proxy and Proxy Statement (collectively, "Proxy Materials") to be used in
connection with such meeting, and will promptly prepare and file with the
Commission the Registration Statement. The AmSouth Trust will provide the
Acquiring Fund with information reasonably requested for the preparation of the
Registration Statement in compliance with the Securities Act, the Exchange Act,
and the Investment Company Act.
5.4 The Acquired Fund covenants that the Acquiring Fund Shares to
be issued hereunder are not being acquired by the Acquired Fund for the purpose
of making any distribution thereof other than in accordance with the terms of
this Agreement.
5.5 The Acquired Fund will assist the Acquiring Fund in obtaining
such information as the Acquiring Fund reasonably requires concerning the
beneficial ownership of the Acquired Fund Shares.
5.6 Subject to the provisions of this Agreement, each Fund will
take, or cause to be taken, all actions, and do or cause to be done, all things
reasonably necessary, proper or advisable to consummate the transactions
contemplated by this Agreement.
5.7 The Acquired Fund shall furnish to the Acquiring Fund on the
Closing Date a statement of assets and liabilities of the Acquired Fund
("Statement of Assets and Liabilities") as of the Closing Date setting forth the
NAV (as computed pursuant to Paragraph 2.1) of the Acquired Fund as of the
Valuation Time, which statement shall be prepared in accordance with GAAP
consistently applied and certified by the AmSouth Trust's Treasurer or Assistant
Treasurer. As promptly as practicable, but in any case within 30 days after the
Closing Date, the AmSouth Trust shall furnish to the Acquiring Trust, in such
form as is reasonably satisfactory to the Acquiring Trust, a statement of the
earnings and profits of the Acquired Fund for federal income tax purposes, and
of any capital loss
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carryovers and other items that will be carried over to the Acquiring Fund under
the Code, and which statement will be certified by the Treasurer of the AmSouth
Trust.
5.8 Neither Fund shall take any action that is inconsistent with
the representations set forth in, with respect to the Acquired Fund, the
Acquired Fund Tax Representation Certificate and, with respect to the Acquiring
Fund, the Acquiring Fund Tax Representation Certificate.
5.9 From and after the date of this Agreement and until the Closing
Date, each of the Funds and the AmSouth Trust and the Acquiring Trust shall use
its commercially reasonable efforts to cause the Reorganization to qualify, and
will not knowingly take any action, cause any action to be taken, fail to take
any action or cause any action to fail to be taken, which action or failure to
act could prevent the Reorganization from qualifying, as a reorganization under
the provisions of Section 368(a) of the Code. The parties hereby adopt this
Agreement as a "plan of reorganization" within the meaning of Sections
1.368-2(g) and 1.368-3(a) of the income tax regulations promulgated under the
Code. Unless otherwise required pursuant to a "determination" within the meaning
of Section 1313(a) of the Code, the parties hereto shall treat and report the
transactions contemplated hereby as a reorganization within the meaning of
Section 368(a)(1)(C) of the Code and shall not take any position inconsistent
with such treatment.
5.10 From and after the date of this Agreement and through the time
of the Closing, each Fund shall use its commercially reasonable efforts to cause
it to qualify, and will not knowingly take any action, cause any action to be
taken, fail to take any action or cause any action to fail to be taken, which
action or failure to act could prevent it from qualifying as a regulated
investment company under the provisions of Subchapter M of the Code.
5.11 Each Fund shall prepare, or cause to be prepared, all of its
Tax Returns for taxable periods that end on or before the Closing Date and shall
timely file, or cause to be timely filed, all such Tax Returns. Each Fund shall
make any payments of Taxes required to be made by it with respect to any such
Tax Returns.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of the Acquired Fund to complete the transactions
provided for herein shall be, at its election, subject to the performance by the
Acquiring Fund of all the obligations to be performed by it hereunder on or
before the Closing Date, and, in addition thereto, the following further
conditions, unless waived by the Acquired Fund in writing:
6.1 All representations and warranties by the Acquiring Trust on
behalf of the Acquiring Fund contained in this Agreement shall be true and
correct in all material respects as of the date hereof (in each case, as such
representations and warranties would read as if all qualifications as to
materiality were deleted therefrom) and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date with the
same force and effect as if made on and as of the Closing Date;
6.2 The Acquiring Trust shall have delivered to the AmSouth Trust
on the Closing Date a certificate of the Acquiring Trust on behalf of the
Acquiring Fund executed in its name by its President or Vice President and its
Treasurer or Assistant Treasurer, in form and substance satisfactory to the
AmSouth Trust and dated as of the Closing Date, to the effect that the
representations and warranties of the Acquiring Trust made in this Agreement are
true and correct in all material respects at and as of the Closing Date, except
as they may be affected by the transactions contemplated by this Agreement, that
each of the conditions to Closing in this Article 6 have been met, and as to
such other matters as the AmSouth Trust shall reasonably request;
6.3 The Acquiring Trust on behalf of the Acquiring Fund shall have
delivered to the AmSouth Trust and Wilmer Cutler Pickering Hale and Dorr LLP an
Acquiring Fund Tax Representation Certificate, satisfactory to the AmSouth Trust
and Wilmer Cutler Pickering Hale and Dorr LLP, in a form mutually acceptable to
the Acquiring Trust and the AmSouth Trust, concerning certain tax-related
matters with respect to the Acquiring Fund;
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6.4 With respect to the Acquiring Fund, the Board of Trustees of
the Acquiring Trust shall have determined that the Reorganization is in the best
interests of the Acquiring Fund and, based upon such determination, shall have
approved this Agreement and the transactions contemplated hereby; and
6.5 The AmSouth Trust shall have received at the Closing a
favorable opinion as to the due authorization of this Agreement by the Acquiring
Trust and related matters of Wilmer Cutler Pickering Hale and Dorr LLP, dated as
of the Closing Date, in a form reasonably satisfactory to the AmSouth Trust.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to complete the transactions
provided for herein shall be, at its election, subject to the performance by the
Acquired Fund of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following further
conditions, unless waived by the Acquiring Fund in writing:
7.1 All representations and warranties of the AmSouth Trust on
behalf of the Acquired Fund contained in this Agreement shall be true and
correct in all material respects as of the date hereof (in each case, as such
representations and warranties would read as if all qualifications as to
materiality were deleted therefrom) 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 AmSouth Trust shall have delivered to the Acquiring Fund
the Statement of Assets and Liabilities of the Acquired Fund pursuant to
Paragraph 5.7, together with a list of its portfolio securities showing the
federal income tax bases and holding periods of such securities, as of the
Closing Date, certified by the AmSouth Trust's Treasurer or Assistant Treasurer;
7.3 The AmSouth Trust shall have delivered to the Acquiring Trust
on the Closing Date a certificate of the AmSouth Trust on behalf of the Acquired
Fund executed in its name by its President or Vice President and a Treasurer or
Assistant Treasurer, in form and substance reasonably satisfactory to the
Acquiring Trust and dated as of the Closing Date, to the effect that the
representations and warranties of the AmSouth Trust contained in this Agreement
are true and correct in all material respects at and as of the Closing Date,
except as they may be affected by the transactions contemplated by this
Agreement, that each of the conditions to Closing in this Article 7 have been
met, and as to such other matters as the Acquiring Trust shall reasonably
request;
7.4 The AmSouth Trust on behalf of the Acquired Fund shall have
delivered to the Acquiring Trust and Wilmer Cutler Pickering Hale and Dorr LLP
an Acquired Fund Tax Representation Certificate, satisfactory to the Acquiring
Trust and Wilmer Cutler Pickering Hale and Dorr LLP, in a form mutually
acceptable to the Acquiring Trust and the Amsouth Trust, concerning certain
tax-related matters with respect to the Acquired Fund;
7.5 The Acquiring Trust shall have received at the Closing a
favorable opinion as to the due authorization of this Agreement by the AmSouth
Trust and related matters of Kirkpatrick & Lockhart Nicholson Graham LLP, dated
as of the Closing Date, in a form reasonably satisfactory to the Acquiring
Trust; and
7.6 With respect to the Acquired Fund, the Board of Trustees of the
AmSouth Trust shall have determined that the Reorganization is in the best
interests of the Acquired Fund and, based upon such determination, shall have
approved this Agreement and the transactions contemplated hereby.
8. FURTHER CONDITIONS PRECEDENT
If any of the conditions set forth below does not exist on or before
the Closing Date with respect to either party hereto, the other party to this
Agreement shall, at its option, not be required to consummate the transactions
contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall
have been approved by the requisite vote of the Acquired Fund's shareholders in
accordance with the provisions of the AmSouth Trust's
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Declaration of Trust and By-Laws, and certified copies of the resolutions
evidencing such approval by the Acquired Fund's shareholders shall have been
delivered by the Acquired Fund to the Acquiring Fund. Notwithstanding anything
herein to the contrary, neither party hereto may waive the conditions set forth
in this Paragraph 8.1;
8.2 On the Closing Date, no action, suit or other proceeding shall
be pending before any court or governmental agency in which it is sought to
restrain or prohibit, or obtain damages or other relief in connection with, this
Agreement or the transactions contemplated herein;
8.3 All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities (including those
of the Commission and of state Blue Sky and securities authorities) deemed
necessary by either party hereto to permit consummation, in all material
respects, of the transactions contemplated hereby shall have been obtained,
except where failure to obtain any such consent, order or permit would not
involve a risk of a material adverse effect on the assets or properties of
either party hereto, provided that either party may waive any such conditions
for itself;
8.4 The Acquiring Trust's Registration Statement on Form N-14 shall
have become effective under the Securities Act and no stop orders suspending the
effectiveness of such Registration Statement shall have been issued and, to the
best knowledge of the parties hereto, no investigation or proceeding for that
purpose shall have been instituted or be pending, threatened or contemplated
under the Securities Act;
8.5 The parties shall have received an opinion of Wilmer Cutler
Pickering Hale and Dorr LLP, satisfactory to the AmSouth Trust and the Acquiring
Trust and subject to customary assumptions and qualifications, substantially to
the effect that for federal income tax purposes the acquisition by the Acquiring
Fund of the Acquired Assets solely in exchange for the issuance of Acquiring
Fund Shares to the Acquired Fund and the assumption of the Assumed Liabilities
by the Acquiring Fund, followed by the distribution by the Acquired Fund, in
liquidation of the Acquired Fund, of Acquiring Fund Shares to the Acquired Fund
Shareholders in exchange for their Acquired Fund Shares and the termination of
the Acquired Fund, will constitute a "reorganization" within the meaning of
Section 368(a) of the Code;
8.6 The Acquired Fund shall have distributed to its shareholders,
in a distribution or distributions qualifying for the deduction for dividends
paid under Section 561 of the Code, all of its investment company taxable income
(as defined in Section 852(b)(2) of the Code determined without regard to
Section 852(b)(2)(D) of the Code) for its taxable year ending on the Closing
Date, all of the excess of (i) its interest income excludable from gross income
under Section 103(a) of the Code over (ii) its deductions disallowed under
Sections 265 and 171(a)(2) of the Code for its taxable year ending on the
Closing Date, and all of its net capital gain (as such term is used in Sections
852(b)(3)(A) and (C) of the Code), after reduction by any available capital loss
carryforward, for its taxable year ending on the Closing Date; and
8.7 The Acquiring Fund shall have made a distribution of at least
(8) of its accumulated undistributed realized net capital gains as of seven
business days before the Closing Date ("Determination Date") to its shareholders
on or about three business days before the Closing Date; provided that the
Acquiring Fund shall not be required to make such distribution if (i) such gains
do not exceed 3% of the net assets of the Acquiring Fund on such date or (ii)
the Acquiring Fund shall have been notified by the staff of the Commission in
response to a request in accordance with Rule 19b-1(e) under the Investment
Company Act that the staff objects to the proposed distribution.
9. BROKERAGE FEES AND EXPENSES
9.1 Each party hereto represents and warrants to the other party
hereto that there are no brokers or finders entitled to receive any payments in
connection with the transactions provided for herein.
9.2 The parties have been informed by AmSouth Asset Management Inc.
("AAMI") and the Acquiring Fund Adviser -- and the parties have entered into
this Agreement in reliance on such information -- that certain non-parties will
pay (with each of AmSouth Bancorporation or AAMI and the Acquiring Fund Adviser
being responsible for 50% of such amounts) all proxy statement and solicitation
costs of the Funds associated with the
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Reorganization including, but not limited to, the expenses associated with the
preparation, printing and mailing of any and all shareholder notices,
communications, proxy statements, and necessary filings with the SEC or any
other governmental authority in connection with the transactions contemplated by
this Agreement and the fees and expenses of any proxy solicitation firm retained
in connection with the Reorganization. Except for the foregoing, the AAMI shall
bear the expenses of the Acquired Fund in connection with the transactions
contemplated by this Agreement.
10. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Trust and the AmSouth Trust each agrees that
neither party has made any representation, warranty or covenant not set forth
herein or referred to in Paragraphs 4.1 or 4.2 hereof and that this Agreement
constitutes the entire agreement between the parties.
10.2 The representations and warranties contained in this Agreement
or in any document delivered pursuant hereto or in connection herewith shall not
survive the consummation of the transactions contemplated hereunder.
11. TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of
the Acquiring Trust and the AmSouth Trust. In addition, either party may at its
option terminate this Agreement at or prior to the Closing Date:
(a) because of a material breach by the other of any
representation, warranty, covenant or agreement contained herein to be performed
at or prior to the Closing Date;
(b) because of a condition herein expressed to be precedent to
the obligations of the terminating party which has not been met and which
reasonably appears will not or cannot be met;
(c) by resolution of the Acquiring Trust's Board of Trustees if
circumstances should develop that, in the good faith opinion of such Board, make
proceeding with the Agreement not in the best interests of the Acquiring Fund's
shareholders;
(d) by resolution of the AmSouth Trust's Board of Trustees if
circumstances should develop that, in the good faith opinion of such Board, make
proceeding with the Agreement not in the best interests of the Acquired Fund's
shareholders; or
(e) if the transactions contemplated by this Agreement shall
not have occurred on or prior to December 31, 2005 or such other date as the
parties may mutually agree upon in writing.
11.2 In the event of any such termination, there shall be no
liability for damages on the part of the Acquiring Fund, the Acquiring Trust,
the AmSouth Trust or the Acquired Fund, or the trustees or officers of the
AmSouth Trust, or the Acquiring Trust, but, subject to Paragraph 9.2, each party
shall bear the expenses incurred by it incidental to the preparation and
carrying out of this Agreement.
12. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the authorized officers of the
AmSouth Trust and the Acquiring Trust; provided, however, that following the
meeting of the Acquired Fund's shareholders called by the AmSouth Trust pursuant
to Paragraph 5.2 of this Agreement, no such amendment may have the effect of
changing the provisions regarding the method for determining the number of
Acquiring Fund Shares to be received by the Acquired Fund Shareholders under
this Agreement to their detriment without their further approval; provided that
nothing contained in this Section 12 shall be construed to prohibit the parties
from amending this Agreement to change the Closing Date.
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13. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the Acquired Fund, c/o
AmSouth Asset Management Inc., 1900 Fifth Avenue North, 10th Floor, Birmingham,
Alabama 35203, Attention: Andrew Chambless, with copies to Kirkpatrick &
Lockhart Nicholson Graham LLP, 1800 Massachusetts Avenue, N.W., Washington, DC,
20036-1221, Attention: Clifford J. Alexander, and to the Acquiring Fund, c/o
Pioneer Investment Management, Inc., 60 State Street, Boston, Massachusetts
02109, Attention: Dorothy E. Bourassa, Esq., with copies to Wilmer Cutler
Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109,
Attention: David C. Phelan.
14. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT
14.1 The article and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original.
14.3 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware, without giving effect to
conflict of laws principles (other than Delaware Code Title 6 ss. 2708);
provided that, in the case of any conflict between those laws and the federal
securities laws, the latter shall govern.
14.4 This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by
either party without the prior written consent of the other party hereto.
Nothing herein expressed or implied is intended or shall be construed to confer
upon or give any person, firm or corporation, or other entity, other than the
parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
14.5 It is expressly agreed that the obligations of the Acquiring
Trust and the AmSouth Trust shall not be binding upon any of their respective
trustees, shareholders, nominees, officers, agents or employees personally, but
bind only to the property of the Acquiring Fund or the Acquired Fund, as the
case may be, as provided in the trust instruments of the Acquiring Trust and the
Declaration of Trust of the AmSouth Trust, respectively. The execution and
delivery of this Agreement have been authorized by the trustees of the Acquiring
Trust and of the AmSouth Trust and this Agreement has been executed by
authorized officers of the Acquiring Trust and the AmSouth Trust, acting as
such, and neither such authorization by such trustees nor such execution and
delivery by such officers shall be deemed to have been made by any of them
individually or to imposed any liability on any of them personally, but shall
bind only the property of the Acquiring Fund and the Acquired Fund, as the case
may be, as provided in the trust instruments of the Acquiring Trust and the
Declaration of Trust of the AmSouth Trust, respectively.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first set forth above by its President
or Vice President and attested by its Secretary or Assistant Secretary.
Attest: AMSOUTH FUNDS
on behalf of each series listed on Annex B
-------
By: /s/ Warren Leslie By: /s/ Michael C. Daniel
----------------------------- --------------------------------------
Name: Warren Leslie Name: Michael C. Daniel
Title: Secretary Title: President
Attest: EACH PIONEER FUND listed on Annex A
-------
By: /s/ Christopher J. Kelley By: /s/ Osbert M. Hood
----------------------------- --------------------------------------
Name: Christopher J. Kelley Name: Osbert M. Hood
Title: Assistant Secretary Title: Executive Vice President
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Annex A
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Pioneer Fund
Pioneer Ibbotson Asset Allocation Series, on behalf of its series Pioneer
Ibbotson Moderate Allocation Fund
Pioneer Mid Cap Value Fund
Pioneer Series Trust I, on behalf of its series Pioneer Oak Ridge Large Cap
Growth Fund
Pioneer Series Trust II, on behalf of its series Pioneer Growth Opportunities
Fund
Pioneer Tax Free Income Fund
Pioneer Value Fund
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Annex B
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AmSouth Capital Growth Fund
AmSouth Enhanced Market Fund
AmSouth High Quality Municipal Bond Fund
AmSouth Large Cap Fund
AmSouth Mid Cap Value Fund
AmSouth Small Cap Fund
AmSouth Strategic Portfolios: Growth and Income Portfolio
AmSouth Strategic Portfolios: Moderate Growth and Income Portfolio
AmSouth Tennessee Tax-Exempt Fund
AmSouth Value Fund
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