Item 77Q1(g)(1)
MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made as of this 9th
day of November, 2004, by Munder Series Trust, a Delaware statutory trust
("Trust"), with its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, on behalf of the Munder International Equity Fund
("Acquiring Fund"), a separate series of the Trust, and the Munder Emerging
Markets Fund and Munder International Growth Fund (each an "Acquired Fund"),
also separate series of the Trust. This Agreement is intended to be and is
adopted as a plan of reorganization and liquidation within the meaning of
Section 368(a)(1) of the United States Internal Revenue Code of 1986, as
amended ("Code"). The reorganization and liquidation will consist of (1) the
sale, assignment, conveyance, transfer and delivery of all of the property and
assets of each Acquired Fund to the Acquiring Fund in exchange solely for shares
of beneficial interest of Class A, Class B, Class C, Class K and Class Y shares
of the Acquiring Fund ("Acquiring Fund Shares") corresponding to the classes of
outstanding shares of beneficial interest of the Acquired Fund ("Acquired Fund
Shares"), as described herein, (2) the assumption by the Acquiring Fund of all
liabilities of the Acquired Fund, and (3) the distribution of the Acquiring Fund
Shares to the shareholders of the Acquired Fund in complete liquidation of the
Acquired Fund, as provided herein ("Reorganization"), all upon the terms and
conditions hereinafter set forth in this Agreement.
WHEREAS, the Acquired Funds and the Acquiring Fund are each a series of the
Trust, a registered investment company classified as a management company of the
open-end type, and the Acquired Funds own securities that generally are assets
of the character in which the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of the Trust have determined, with respect to the
Acquiring Fund, that the sale, assignment, conveyance, transfer and delivery of
all of the property and assets of the Acquired Funds for Acquiring Fund Shares
and the assumption of all liabilities of the Acquired Funds by the Acquiring
Fund is in the best interests of the Acquiring Fund and that the interests of
the existing shareholders of the Acquiring Fund would not be diluted as a result
of this transaction; and
WHEREAS, the Trustees of the Trust also have determined, with respect to each
Acquired Fund, that the sale, assignment, conveyance, transfer and delivery of
all of the property and assets of the Acquired Fund for Acquiring Fund Shares
and the assumption of all liabilities of the Acquired Fund by the Acquiring
Fund is in the best interests of the Acquired Fund and that the interests of
the existing shareholders of the Acquired Fund would not be diluted as a result
of this transaction;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUNDS TO THE ACQUIRING FUND IN
EXCHANGE FOR THE ACQUIRING FUNDS' SHARES, THE ASSUMPTION OF ALL ACQUIRED
FUND LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED FUNDS
1.1. Subject to requisite approvals and the other terms and conditions
herein set forth and on the basis of the representations and
warranties contained herein, the Acquired Funds each agree to
sell, assign, convey, transfer and deliver all of the property
and assets of the Acquired Fund, as set forth in paragraph 1.2,
to the Acquiring Fund, and the Acquiring Fund agrees in exchange
therefor: (i) to deliver to each Acquired Fund the number of full
and fractional Class A, Class B, Class C, Class K and Class Y
Acquiring Fund Shares determined by dividing the value of the
Acquired Fund's net assets with respect to each corresponding
class of Acquired Fund Shares, computed in the manner and as of
the time and date set forth in paragraph 2.1, by the net asset
value of one Acquiring Fund Share of the corresponding class,
computed in the manner and as of the time and date set forth in
paragraph 2.2; and (ii) to assume all liabilities of each Acquired
Fund, as set forth in paragraph 1.3. Such transactions shall
take place on the date of the closing provided for in
paragraph 3.1 ("Closing Date").
1.2. The property and assets of the Trust attributable to the Acquired
Funds to be acquired by the Acquiring Fund shall consist of all
property and assets, including, without limitation, all rights,
cash, securities, commodities and futures interests and dividends
or interests receivable that are owned by the Acquired Funds and
any deferred or prepaid expenses shown as an asset on the books of
the Acquired Funds on the Valuation Date as defined in paragraph 2.1
(collectively, "Assets"). The Acquired Fund will sell, assign,
convey, transfer and deliver to the Acquiring Fund any rights,
stock dividends, or other securities received by the Acquired Fund
after the Closing Date as stock dividends or other distributions
on or with respect to the property and assets transferred, which
rights, stock dividends, and other securities shall be deemed
included in the property and assets transferred to the Acquiring
Fund at the Closing Date and shall not be separately valued, in
which case any such distribution that remains unpaid as of the
Closing Date shall be included in the determination of the value
of the assets of the Acquired Fund acquired by the Acquiring Fund.
1.3. Each Acquired Fund will make reasonable efforts to discharge all of
its known liabilities and obligations prior to the Valuation Date.
The Acquiring Fund shall assume all of the liabilities of the Acquired
Funds, whether accrued or contingent, known or unknown, existing at
the Valuation Date (collectively, "Liabilities"). On or as soon as
practicable prior to the Closing Date, each Acquired Fund will declare
and pay to its shareholders of record one or more dividends and/or other
distributions so that it will have distributed substantially all (and in
no event less than 98%) of its investment company taxable income (computed
without regard to any deduction for dividends paid) and realized net
capital gain (after reduction for any available capital loss carryover),
if any, for the current taxable year through the Closing Date.
1.4. Immediately following the actions contemplated by paragraph 1.1, the
Trust shall take such actions necessary to complete the liquidation of
each Acquired Fund. To complete the liquidation, the Trust, on behalf of
each Acquired Fund, shall (a) distribute to the Acquired Fund's
shareholders of record with respect to each class of its shares as of the
Closing as defined in paragraph 3.1 ("Acquired Fund Shareholders"), on a
pro rata basis within that class, the Acquiring Fund Shares of the
corresponding class received by the Acquired Fund pursuant to paragraph
1.1 and (b) completely liquidate. Such distribution and liquidation will
be accomplished, with respect to each class of each Acquired Fund's shares,
by the transfer of the Acquiring Fund Shares then credited to the account
of the Acquired Fund on the books of the Acquiring Fund to open accounts on
the share records of the Acquiring Fund in the names of the Acquired Fund
Shareholders. The aggregate net asset value of Class A, Class B, Class C,
Class K and Class Y Acquiring Fund Shares to be so credited to Class A,
Class B, Class C, Class K and Class Y Acquired Fund Shareholders,
respectively, shall, with respect to each class, be equal to the aggregate
net asset value of the Acquired Fund Shares of the corresponding class
owned by Acquired Fund Shareholders on the Closing Date. All issued and
outstanding Acquired Fund Shares will simultaneously be canceled on the
books of the Acquired Fund. The Acquiring Fund shall not issue
certificates representing the Class A, Class B, Class C, Class K and Class
Y Acquiring Fund Shares in connection with either Reorganization.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's Transfer Agent, as defined in paragraph 3.3.
1.6. Any reporting responsibility of the Acquired Funds, including, but not
limited to, the responsibility for filing regulatory reports, tax returns,
or other documents with the Securities and Exchange Commission
("Commission"), any state securities commission, and any Federal, state
or local tax authorities or any other relevant regulatory authority, is
and shall remain the responsibility of the Acquired Funds.
2. VALUATION
2.1. The value of the Assets shall be the value of such Assets as of the
close of business of the New York Stock Exchange and after the
declaration of any dividends on the Closing Date (such time and date
being hereinafter called the "Valuation Date"), computed using the
valuation procedures set forth in the then-current prospectus and
statement of additional information with respect to the Acquired
Funds and valuation procedures established by the Trust's Board of
Trustees.
2.2. The net asset value of a Class A, Class B, Class C, Class K and
Class Y Acquiring Fund Share shall be the net asset value per share
computed with respect to that class as of the Valuation Date, using
the valuation procedures set forth in each Acquiring Fund's
then-current prospectus and statement of additional information, and
valuation procedures established by the Trust's Board of Trustees.
2.3. The number of the Class A, Class B, Class C, Class K and Class Y
Acquiring Fund Shares to be issued (including fractional shares, if
any) in exchange for each Acquired Fund's Assets shall be determined
with respect to each such class by dividing the value of the net
assets with respect to the Class A, Class B, Class C, Class K and
Class Y Acquired Fund Shares, as the case may be, determined using
the same valuation procedures referred to in paragraph 2.1, by the
net asset value of a corresponding Acquiring Fund Share, determined
in accordance with paragraph 2.2.
2.4. All computations of value shall be made by State Street Bank and
Trust Company, in its capacity as sub-administrator for the Trust,
and shall be subject to confirmation by the Trust's administrator.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be February 4, 2005. All acts taking place
at the closing of the transactions provided for in this Agreement
("Closing") shall be deemed to take place simultaneously as of the
close of business on the Closing Date unless otherwise agreed to by
the parties. The close of business on the Closing Date shall be as of
4:00 p.m., Eastern Time. The Closing shall be held at the offices of
the Trust.
3.2. The Trust shall direct State Street Bank and Trust Company, as
custodian for each Acquired Fund ("Custodian"), to deliver to the
Trust at the Closing a certificate of an authorized officer of the
Custodian stating that (i) the Assets of the Acquired Fund have been
delivered in proper form to the Acquiring Fund within two business
days prior to or on the Closing Date, and (ii) all necessary taxes in
connection with the delivery of the Assets, including all applicable
Federal and state stock transfer stamps, if any, have been paid or
provision for payment has been made. Each Acquired Fund's portfolio
securities represented by a certificate or other written instrument
shall be presented by the Custodian to those persons at the Custodian
who have primary responsibility for the safekeeping of the assets of
the Acquiring Fund, as the Custodian also serves as the custodian for
the Acquiring Fund. Such presentation shall be made for examination no
later than five business days preceding the Closing Date, and such
certificates and other written instruments shall be transferred and
delivered by each Acquired Fund as of the Closing Date for the account of
the Acquiring Fund duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. The Custodian shall
deliver to those persons at the Custodian who have primary responsibility
for the safekeeping of the assets of the Acquiring Fund as of the Closing
Date by book entry, in accordance with the customary practices of the
Custodian and of each securities depository, as defined in Rule 17f-4
under the Investment Company Act of 1940, as amended ("1940 Act"), in
which each Acquired Fund's Assets are deposited, the Acquired Fund's
Assets deposited with such depositories. The cash to be transferred by
the Acquired Funds shall be delivered by wire transfer of Federal funds
on the Closing Date.
3.3. The Trust shall direct PFPC, Inc., in its capacity as transfer agent for
the Trust ("Transfer Agent"), to deliver to the Trust at the Closing a
certificate of an authorized officer of the Transfer Agent stating that
its records contain the names and addresses of the Acquired Fund
Shareholders and the number and percentage ownership of outstanding
Class A, Class B, Class C, Class K and Class Y shares owned by each such
shareholder immediately prior to the Closing. The Secretary of the Trust
shall confirm that (a) the appropriate number of Acquiring Fund Shares
have been credited to the Acquired Fund's account on the books of the
Acquiring Fund pursuant to paragraph 1.1 prior to the actions contemplated
by paragraph 1.4 and (b) the appropriate number of Acquiring Fund Shares
have been credited to the accounts of the Acquired Fund Shareholders on
the books of the Acquiring Fund pursuant to paragraph 1.4. At the Closing
the Trust shall execute such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as necessary to effect
each Reorganization.
3.4. In the event that on the Valuation Date (a) the New York Stock Exchange
or another primary trading market for portfolio securities of the
Acquiring Fund or an Acquired Fund (each, an "Exchange") shall be closed
to trading or trading thereupon shall be restricted, or (b) trading or
the reporting of trading on such Exchange or elsewhere shall be disrupted
so that, in the judgment of the Board of Trustees of the Trust, accurate
appraisal of the value of the net assets of the Acquiring Fund or an
Acquired Fund is impracticable, the Closing Date shall be postponed until
the first business day after the day when trading shall have been fully
resumed and reporting shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the Acquiring Fund prior to the
date of this Agreement in a written instrument executed by an officer
of the Trust, the Trust, on behalf of each Acquired Fund, represents
and warrants to the Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as series of the Trust, which
is a statutory trust duly organized, validly existing and in good
standing under the laws of the State of Delaware, with power under
the Trust's Declaration of Trust, as amended from time to time
("Declaration"), to own all of its Assets and to carry on its
business as it is now being conducted;
(b) The 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 1940 Act, and
the registration of the Class A, Class B, Class C, Class K and Class
Y Acquired Fund Shares under the Securities Act of 1933, as amended
("1933 Act"), is in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the
Acquired Fund of the transactions contemplated herein, except such
as may be required under the 1933 Act, the Securities Exchange Act
of 1934, as amended ("1934 Act"), the 1940 Act and state securities
laws;
(d) The current prospectus and statement of additional information of the
Acquired Fund and each prospectus and statement of additional
information of the Acquired Fund used at all times prior to the date
of this Agreement conforms or conformed at the time of its use in all
material respects to the applicable requirements of the 1933 Act and
the 1940 Act and the rules and regulations of the Commission
thereunder; and does not or did not at the time of its use 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;
(e) On the Valuation Date, the Trust, on behalf of the Acquired Fund, will
have good and marketable title to the Assets of the Acquired Fund and
full right, power, and authority to sell, assign, transfer and deliver
such Assets hereunder free of any liens or other encumbrances, and
upon delivery and payment for such Assets, the Trust, on behalf of the
Acquiring Fund, will acquire good and marketable title thereto, subject
to no restrictions on the full transfer thereof, including such
restrictions as might arise under the 1933 Act;
(f) The Acquired Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a material
violation of the Trust's Declaration or By-Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which
the Trust, on behalf of the Acquired Fund, is a party or by which it
is bound, or (ii) the acceleration of any material obligation, or the
imposition of any material penalty, under any agreement, indenture,
instrument, contract, lease, judgment or decree to which the Trust, on
behalf of the Acquired Fund, is a party or by which it is bound;
(g) All material contracts or other commitments of the Acquired Fund (other
than this Agreement and certain investment contracts including options,
futures, and forward contracts) will terminate without liability to
the Acquired Funds on or prior to the Closing Date;
(h) No litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or, to
the Trust's knowledge, threatened against the Trust, with respect to
the Acquired Fund or any of its properties or assets, that, if
adversely determined, would materially and adversely affect its
financial condition or the conduct of its business. The Trust, on
behalf of the Acquired Fund, knows of no facts which might form the
basis for the institution of such proceedings and is not a party to
or subject to the provisions of any order, decree or judgment of any
court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein
contemplated;
(i) The Statement of Assets and Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of Investments of the Acquired
Fund at June 30, 2004 have been audited by Ernst & Young LLP,
independent accountants, and are in accordance with accounting
principles generally accepted in the United States of America ("GAAP")
consistently applied, and such statements present fairly, in all
material respects, the financial condition of the Acquired Fund as of
such date in accordance with GAAP, and there are no known contingent
liabilities of the Acquired Fund required to be reflected on a balance
sheet (including the notes thereto) in accordance with GAAP as of such
date not disclosed therein;
(j) Since June 30, 2004, there has not been any material adverse change in
the Acquired Fund's financial condition, assets, liabilities or business,
other than changes occurring in the ordinary course of business, or any
incurrence by the Acquired Fund of indebtedness other than in the
ordinary course in accordance with the Acquired Fund's investment
restrictions. For the purposes of this subparagraph (j), a decline in
net asset value per share of Acquired Fund Shares due to declines in
market values of securities held by an Acquired Fund, the discharge of
an Acquired Fund's liabilities, or the redemption of Acquired Fund Shares
by shareholders of the Acquired Fund shall not constitute a material
adverse change;
(k) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Acquired Fund
required by law to have been filed by such date (including any extensions)
shall have been filed and are or will be correct in all material respects,
and all Federal and other taxes shown as due or required to be shown as
due on said returns and reports shall have been paid or provision shall
have been made for the payment thereof and, to the best knowledge of the
Trust, no such return is currently under audit and no assessment has been
asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable year ending
on the Closing Date), the Acquired Fund has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been (or will be) eligible to and has
computed (or will compute) its Federal income tax under Section 852 of
the Code, and will have distributed all of its investment company taxable
income (computed without regard to any deduction for dividends paid) and
net capital gain (as defined in the Code) that has accrued through the
Closing Date, and before the Closing Date will have declared dividends
sufficient to distribute all of its investment company taxable income
(computed without regard to any deduction for dividends paid) and net
capital gain (after reduction for any available capital loss carryover)
for the period ending on the Closing Date;
(m) All issued and outstanding Acquired Fund Shares are, and on the Closing
Date will be, duly and validly issued and outstanding, fully paid and
non-assessable by the Trust and have been offered and sold in every state,
territory and the District of Columbia in compliance in all material
respects with applicable registration requirements of the 1933 Act and
other securities laws. All of the issued and outstanding Acquired Fund
Shares will, at the time of Closing, be held by the persons and in the
amounts set forth in the records of the Transfer Agent, on behalf of
the Acquired Fund, as provided in paragraph 3.3. The Acquired Fund
does not have outstanding any options, warrants or other rights to
subscribe for or purchase any of the Acquired Fund Shares, nor is
there outstanding any security convertible into any of the Acquired
Fund Shares;
(n) The execution, delivery and performance of this Agreement and the
transactions contemplated herein have been duly authorized by all
necessary action, if any, on the part of the Trustees of the Trust,
on behalf of the Acquired Fund, and this Agreement constitutes a
valid and binding obligation of the Trust, on behalf 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; and
(o) The information to be furnished by the Acquired Fund for use in
registration statements, and other documents filed or to be filed
with any Federal, state or local regulatory authority (including
the National Association of Securities Dealers, Inc.), 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 thereunder applicable thereto.
4.2. Except as has been fully disclosed to the Acquired Funds prior to the
date of this Agreement in a written instrument executed by an officer
of the Trust, the Trust, on behalf of the Acquiring Fund, represents
and warrants to the Acquired Funds as follows:
(a) The Acquiring Fund is duly organized as a series of the Trust,
which is a statutory trust duly organized, validly existing, and
in good standing under the laws of the State of Delaware, with
power under the Trust's Declaration to own all of its properties
and assets and to carry on its business as it is now being conducted;
(b) The 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 1940 Act
and the registration of the Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares under the 1933 Act, is in full
force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the
Acquiring Fund of the transactions contemplated herein, except
such as may be required under the 1933 Act, the 1934 Act, the 1940
Act and state securities laws;
(d) The current prospectus and statement of additional information of
the Acquiring Fund and each prospectus and statement of additional
information of the Acquiring Fund used at all times prior to the
date of this Agreement conforms or conformed at the time of its use
in all material respects to the applicable requirements of the 1933
Act and the 1940 Act and the rules and regulations of the Commission
thereunder and does not or did not at the time of its use 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;
(e) The Acquiring Fund is not engaged currently, and the execution,
delivery and performance of this Agreement will not result, in (i)
a material violation of the Trust's Declaration or By-Laws or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which the Trust, on behalf of the Acquiring Fund,
is a party or by which it is bound, or (ii) the acceleration of any
material obligation, or the imposition of any material penalty,
under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Trust, on behalf of the Acquiring Fund,
is a party or by which it is bound;
(f) No litigation or administrative proceeding or investigation of or
before any court or governmental body is presently pending or,
to its knowledge, threatened against the Trust, with respect to the
Acquiring Fund or any of the Acquiring Fund's properties or assets,
that, if adversely determined, would materially and adversely affect
the Acquiring Fund's financial condition or the conduct of its
business. The Trust, on behalf of the Acquiring Fund, knows of no
facts which might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body
which materially and adversely affects the Acquiring Fund's
business or its ability to consummate the transactions herein
contemplated;
(g) The Statement of Assets and Liabilities, Statements of Operations
and Changes in Net Assets and Schedule of Investments of the
Acquiring Fund at June 30, 2004 have been audited by Ernst & Young
LLP, independent accountants, and are in accordance with GAAP
consistently applied, and such statements present fairly, in all
material respects, the financial condition of the Acquiring Fund as
of such date in accordance with GAAP, and there are no known contingent
liabilities of the Acquiring Fund required to be reflected on a
balance sheet (including the notes thereto) in accordance with GAAP
as of such date not disclosed therein;
(h) Since June 30, 2004, there has not been any material adverse change
in the Acquiring Fund's financial condition, assets, liabilities or
business, other than changes occurring in the ordinary course of
business, or any incurrence by the Acquiring Fund of indebtedness
other than in the ordinary course in accordance with the Acquiring
Fund's investment restrictions. For purposes of this subparagraph
(i), a decline in net asset value per share of the Acquiring Fund
Shares due to declines in market values of securities held by the
Acquiring Fund, the discharge of Acquiring Fund liabilities, or the
redemption of Acquiring Fund Shares by shareholders of the Acquiring
Fund, shall not constitute a material adverse change;
(i) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Acquiring Fund
required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct in all
material respects, and all Federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have
been paid or provision shall have been made for the payment thereof,
and to the best knowledge of the Trust, no such return is currently
under audit and no assessment has been asserted with respect to such
returns;
(j) For each taxable year of its operation (including the taxable year
that includes the Closing Date), the Acquiring Fund has met (or will
meet) the requirements of Subchapter M of the Code for qualification
as a regulated investment company, has been eligible to (or will be
eligible to) and has computed (or will compute) its Federal income
tax under Section 852 of the Code;
(k) All issued and outstanding Acquiring Fund Shares are, and on the
Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable by the Trust and have been offered
and sold in every state, territory and the District of Columbia in
compliance in all material respects with applicable registration
requirements of the 1933 Act and other securities laws. 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) The execution, delivery and performance of this Agreement, and
the transactions contemplated herein, have been duly authorized
by all necessary action, if any, on the part of the Trustees of
the Trust, on behalf of the Acquiring Fund, and this Agreement
constitutes a valid and binding obligation of the Trust, on
behalf 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;
(m) The Class A, Class B, Class C, Class K and Class Y Acquiring
Fund Shares to be issued and delivered to each Acquired Fund,
for the account of the Acquired Fund Shareholders, pursuant to
the terms of this Agreement, will on the Closing Date have been
duly authorized and, when so issued and delivered, will be duly
and validly issued Acquiring Fund Shares, and will be fully paid
and non-assessable by the Acquiring Fund; and
(n) The information to be furnished by the Acquiring Fund for use in
the registration statements, and other documents that 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.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUNDS
5.1. The Acquiring Fund and the Acquired Funds each will operate its business
in the ordinary course between the date hereof and the Closing Date,
it being understood that such ordinary course of business will include
the declaration and payment of customary dividends and distributions,
and any other distribution that may be advisable.
5.2. The Acquired Funds each covenant that the Class A, Class B, Class C,
Class K and Class Y Acquiring Fund Shares to be issued hereunder are
not being acquired for the purpose of making any distribution thereof,
other than in accordance with the terms of this Agreement.
5.3. Subject to the provisions of this Agreement, the Acquiring Fund and
the Acquired Funds each will take, or cause to be taken, all action,
and do or cause to be done, all things reasonably necessary, proper or
advisable to consummate and make effective the transactions
contemplated by this Agreement.
5.4. The Acquiring Fund and the Acquired Funds each shall use its
reasonable best efforts to fulfill or obtain the fulfillment of
the conditions precedent to effect the transactions contemplated by
this Agreement as promptly as practicable.
5.5. The Trust, on behalf of the Acquired Funds, shall 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
may be necessary or desirable in order to (1) vest in and confirm (a)
the title and possession of the Trust, on behalf of the Acquired Funds,
to and of the Acquiring Fund Shares to be delivered hereunder and (b)
the title and possession of the Trust, on behalf of the Acquiring Fund,
to and of all the Assets and (2) to otherwise to carry out the intent
and purpose of this Agreement.
5.6. The Acquiring Fund will use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act
and such of the state blue sky or securities laws as may be necessary
in order to continue its operations after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUNDS
The obligations of the Trust, on behalf of each Acquired Fund, to consummate
the transactions provided for herein shall be subject, at the Trust's
election, to the performance by the Trust, on behalf of the Acquiring Fund,
of all the obligations to be performed by it hereunder on or before the
Closing Date, and, in addition thereto, the following further conditions:
6.1. All representations and warranties of the 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 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 Trust, on behalf of the Acquiring Fund, shall have delivered to
the Acquired Funds a certificate executed by the Trust's President
or Vice President and its Treasurer or Assistant Treasurer and dated
as of the Closing Date to the effect that the representations and
warranties of the Trust, on behalf of the Acquiring Fund, made in this
Agreement are true and correct at and as of the Closing Date, except
as they may be affected by the transactions contemplated by this
Agreement;
6.3. The Trust, on behalf of the Acquiring Fund, shall have performed all
of the covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Trust, on
behalf of the Acquiring Fund, on or before the Closing Date; and
6.4. The number of full and fractional Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares to be issued in connection with the
Reorganization shall have been calculated in accordance with
paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Trust, on behalf of the Acquiring Fund, to complete
the transactions provided for herein shall be subject, at the Trust's
election, to the performance by the Trust, on behalf of the Acquired Funds,
of all of the obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, the following conditions:
7.1. All representations and warranties of the Trust, on behalf of the
Acquired Funds, contained in this Agreement shall be true and correct
in all material respects as of the date hereof and, except as they may
be affected by the transactions contemplated by this Agreement, as of
the Closing Date, with the same force and effect as if made on and as
of the Closing Date;
7.2. The Trust shall have delivered to the Acquiring Fund a statement of
each Acquired Fund's Assets and Liabilities, as of the Closing Date,
certified by the Treasurer of the Trust;
7.3. The Trust, on behalf of the Acquired Funds, shall have delivered to
the Acquiring Fund a certificate executed in the name of each Acquired
Fund by its President or Vice President and its Treasurer or Assistant
Treasurer and dated as of the Closing Date to the effect that the
representations and warranties of the Trust, on behalf of the Acquired
Funds, 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;
7.4. The Trust, on behalf of the Acquired Funds, shall have performed all
of the covenants and complied with all of the provisions required by
this Agreement to be performed or complied with by the Trust, on
behalf of the Acquired Funds, on or before the Closing Date;
7.5. The number of full and fractional Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares to be issued in connection with the
Reorganization shall have been calculated in accordance with
paragraph 1.1; and
7.6. The Acquired Funds shall have declared and paid a distribution or
distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its shareholders
(i) all of its investment company taxable income and all of its net
realized capital gains, if any, for the period from the close of its
last fiscal year to 4:00 p.m. Eastern time on the Closing Date; and
(ii) any undistributed investment company taxable income and net realized
capital gains from any period to the extent not otherwise already
distributed.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE
ACQUIRED FUNDS
If any of the conditions set forth below have not been satisfied on or before
the Closing Date with respect to the Trust, on behalf of the Acquired Funds
or the Trust, on behalf of the Acquiring Fund, the Trust, may at its option,
refuse to consummate the transactions contemplated by this Agreement:
8.1. On the Closing Date no action, suit or other proceeding shall be pending
or, to the Trust's knowledge, threatened 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;
8.2. All consents of other parties and all other consents, orders and permits
of Federal, state and local regulatory authorities deemed necessary by
the 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 Acquiring Fund or the Acquired Funds; and
8.3. The Trust shall have received the opinion of counsel to the Trust
addressed to the Trust substantially to the effect that, based upon
certain facts, assumptions, and representations, the transaction
contemplated by this Agreement shall constitute a tax-free
reorganization for Federal income tax purposes. The delivery of such
opinion is conditioned upon receipt by counsel to the Trust of
representations it shall request of the Trust. Notwithstanding
anything herein to the contrary, the Trust may not consummate the
transactions contemplated by this Agreement if this condition is not
satisfied.
9. INDEMNIFICATION
9.1. The Trust, out of the Acquiring Fund's assets and property (including
any amounts paid to the Acquiring Fund pursuant to any applicable
liability insurance policies or indemnification agreements), agrees to
indemnify and hold harmless the Acquired Funds from and against any and
all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquired Funds may become subject, insofar as
such loss, claim, damage, liability or expense (or actions with respect
thereto) arises out of or is based on any breach by the Acquiring Fund of
any of its representations, warranties, covenants or agreements set forth
in this Agreement, provided that such indemnification by the Acquiring Fund
is not in violation of any applicable law.
9.2. The Trust, out of an Acquired Fund's assets and property (including any
amounts paid to the Acquired Fund pursuant to any applicable liability
insurance policies or indemnification agreements), agrees to indemnify
and hold harmless the Acquiring Fund from and against any and all losses,
claims, damages, liabilities or expenses (including, without limitation,
the payment of reasonable legal fees and reasonable costs of investigation)
to which the Acquiring Fund may become subject, insofar as such loss, claim,
damage, liability or expense (or actions with respect thereto) arises out of
or is based on any breach by the Acquired Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement, provided
that such indemnification by the Acquired Fund is not in violation of any
applicable law.
10. BROKERAGE FEES AND EXPENSES
10.1. The Trust, on behalf of the Acquiring Fund and on behalf of the
Acquired Funds, represents and warrants that there are no brokers or
finders entitled to receive any payments in connection with the
transactions provided for herein.
10.2. The expenses relating to the proposed Reorganization will be borne solely
by Munder Capital Management and its affiliates. No such expenses shall be
borne by the Acquired Funds or the Acquiring Fund, except for brokerage fees
and expenses incurred in connection with the Reorganization. The costs of
the Reorganization shall include, but not be limited to, costs associated
with obtaining any necessary order of exemption from the 1940 Act, if any,
legal fees, accounting fees, and securities registration fees.
Notwithstanding any of the foregoing, expenses will in any event be paid by
the party directly incurring such expenses if and to the extent that the
payment by another person of such expenses would result in the
disqualification of such party as a "regulated investment company" within
the meaning of Section 851 of the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The Trust has not made any representation, warranty or covenant, on
behalf of either the Acquired Funds or the Acquiring Fund, not set
forth herein, and this Agreement constitutes the entire agreement between
the Acquiring Fund and each Acquired Fund with respect to the
Reorganization.
11.2. The representations, warranties and covenants contained in this Agreement
or in any document delivered pursuant hereto or in connection herewith
shall survive the consummation of the transactions contemplated hereunder.
The covenants to be performed after the Closing and the obligations of each
of the Acquired Funds and Acquiring Fund in Sections 9.1 and 9.2 shall
survive the Closing.
12. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
may be abandoned by resolution of the Trust's Board of Trustees, at any time
prior to the Closing Date, if circumstances should develop that, in its
opinion, make proceeding with the Agreement inadvisable.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as may
be deemed necessary or advisable by the authorized officers of the Trust.
14. HEADINGS; GOVERNING LAW; SEVERABILITY ASSIGNMENT; LIMITATION OF LIABILITY
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 shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to its principles of
conflicts of laws.
14.3. The warranties, representations, and agreements contained in this
Agreement made by the Trust, on behalf of each of the Acquired Funds,
are made on a several (and not joint, or joint and several) basis.
The benefits and obligations attendant to the Reorganization are
severable with respect to each Acquired Fund. Shareholders of an
Acquired Fund have no rights under this Agreement with respect to the
reorganization and liquidation of any other Acquired Fund in which they
do not hold shares.
14.4. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but no assignment or transfer
hereof or of any rights or obligations hereunder shall be made by any party
without the written consent of the other party. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of
this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its President or Vice President.
MUNDER SERIES TRUST, on behalf of its
MUNDER EMERGING MARKETS FUND
series
By:
Title:
MUNDER SERIES TRUST, on behalf of its
MUNDER INTERNATIONAL GROWTH FUND
series
By:
Title:
MUNDER SERIES TRUST,, on behalf of its
MUNDER INTERNATIONAL EQUITY FUND
series
By:
Title:
With respect to Section 10.2 of this Agreement,
Accepted and Acknowledged by:
MUNDER CAPITAL MANAGEMENT
By:
Title:
272556.4.DC_03
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