MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement) is made as of
this 11th day of February, 2009, by Munder Series Trust, a Delaware
statutory trust (MST), with its principal place of business at 000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, on behalf of the Munder
Bond Fund (Acquiring Fund), a separate series of MST, and the
Munder Intermediate Bond Fund (Acquired Fund), also a separate
series of MST.
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 the Acquired Fund to
the Acquiring Fund in exchange solely for shares of beneficial
interest of Class A, B, C, K, R and 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 Fund and the Acquiring Fund are each a series of MST,
a registered investment company classified as a management investment company
of the open-end type under the Investment Company Act of 1940, as amended
(1940 Act), and the Acquired Fund owns securities that generally are
assets of the character in which the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of MST 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 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 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 MST also have determined, with respect to the
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 FUND TO THE ACQUIRING FUND IN
EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL ACQUIRED FUND
LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED FUND
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 Fund agrees 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 therefore: (a) to deliver to the
Acquired Fund the number of full and fractional Class A, B, C, K, R
and Y Acquiring Fund Shares determined by dividing the value of the
Acquired Funds 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 (b) to assume all
liabilities of the 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 MST attributable to the Acquired Fund
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 Fund and any deferred or prepaid expenses shown as an asset on the
books of the Acquired Fund 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, if any, received by the Acquired Fund after the Closing Date as
stock dividends or other distributions on or with respect to the Assets
transferred, which rights, stock dividends, and other securities
shall be deemed included in the 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 and/or has not been received
by the Acquired Fund 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. The 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 Fund, 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, the 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,
MST shall take such actions necessary to complete the liquidation of the
Acquired Fund. To complete the liquidation, MST, on behalf of the
Acquired Fund, shall (a) distribute to the Acquired Funds 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 the Acquired Funds 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, B, C, K,
R and Y Acquiring Fund Shares to be so credited to Class A, B, C, K, R and 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 will not issue
certificates representing the Class A, B, C, K, R and Y Acquiring
Fund Shares in connection with the Reorganization.
1.5. Ownership of Acquiring Fund Shares will be shown on the books
of the Acquiring Funds Transfer Agent, as defined in paragraph 3.3 hereof.
1.6. Any reporting responsibility of the Acquired Fund, 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 Fund.
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 also referred to
herein as the Valuation Date), computed using the valuation procedures set
forth in the Acquired Funds then current prospectus and statement of additional
information, each as may be supplemented, and valuation procedures established
by MSTs Board of Trustees.
2.2. The net asset value of each Class A, B, C, K, R and Y Acquiring
Fund Share shall be the net asset value per share computed with respect to that
class as of the Valuation Date, computed using the valuation procedures set
forth in the Acquiring Funds then current prospectus and statement of
additional information, each as may be supplemented, and valuation procedures
established by MSTs Board of Trustees.
2.3. The number of the Class A, B, C, K, R and Y Acquiring Fund
Shares to be issued (including fractional shares, if any) in exchange for the
Acquired Funds Assets shall be determined with respect to each such class by
dividing the value of the net assets with respect to the A, B, C,
K, R and 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 using the
same valuation procedures referred to in 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 MST, and shall be
subject to confirmation by Munder Capital Management (MCM), MSTs
administrator.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be March 27, 2009, or such other date as
the parties may agree. 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 MST.
3.2. MST shall direct State Street Bank and Trust Company, as
custodian for the Acquired Fund (Custodian), to deliver to MST at the Closing
a certificate of an authorized officer of the Custodian stating that (a) 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
(b) State Street has paid such amounts, or set aside such amounts
necessary for payment, as it has been instructed by an authorized person
of the Funds under the Custody Agreement. The Acquired Funds 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 the 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 1940 Act,
in which the Acquired Funds Assets are deposited, the Acquired Funds
Assets deposited with such depositories. The cash to be transferred
by the Acquired Fund shall be delivered by wire transfer of Federal
funds on the Closing Date.
3.3. MST shall direct PNC Global Servicing Inc., in its capacity as
transfer agent for MST (Transfer Agent), to deliver to MST at the Closing a
certificate of an authorized officer of the Transfer Agent stating that its
records contain the names and addresses of each Acquired Fund Shareholder and
the number and percentage ownership of outstanding Class A, B, C, K, R and Y
shares owned by each such shareholder immediately prior to the Closing. The
Secretary of MST shall confirm that (a) the appropriate number of
Acquiring Fund Shares have been credited to the Acquired Funds 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 MST shall
execute such bills of sale, checks, assignments, share certificates,
if any, receipts or other documents as necessary to effect the
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 the 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 MST, accurate appraisal of the
value of the net assets of the Acquiring Fund or the 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
MST, MST, on behalf of the Acquired Fund, represents and warrants to the
Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as series of MST,
which is a statutory trust duly organized, validly existing and in good
standing under the laws of the State of Delaware, with power under MSTs
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) MST 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, B, C, K, R and 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, MST, 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, MST, 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 MSTs Declaration or ByLaws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which MST, 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 MST, 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 Fund 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 MSTs knowledge, threatened against MST, 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. MST, 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, 2008 have been audited by Ernst & Young LLP,
Independent Registered Public Accounting Firm, 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, 2008, there has not been any material
adverse change in the Acquired Funds financial condition, Assets, l
iabilities 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 Funds 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 the Acquired Fund, the discharge of the Acquired Funds
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 MST, 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 MST 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 MST, on behalf of
the Acquired Fund, and this Agreement constitutes a valid and binding
obligation of MST, 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 Financial Industry Regulatory Authority, 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 Fund prior
to the date of this Agreement in a written instrument executed by an officer
of MST, MST, on behalf of the Acquiring Fund, represents and warrants to the
Acquired Fund as follows:
(a) The Acquiring Fund is duly organized as a series of
MST, which is a statutory trust duly organized, validly existing, and in
good standing under the laws of the State of Delaware, with power under
MSTs Declaration to own all of its properties and assets and to carry on its
business as it is now being conducted;
(b) MST 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, B, C, K, R and 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 MSTs Declaration or By Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which MST, 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 MST, 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 MST, with respect to the Acquiring
Fund or any of the Acquiring Funds properties or assets, that, if adversely
determined, would materially and adversely affect the Acquiring Funds
financial condition or the conduct of its business. MST, 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 Funds 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, 2008 have been audited by Ernst & Young LLP,
Independent Registered Public Accounting Firm, 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, 2008, there has not been any material
adverse change in the Acquiring Funds 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 Funds
investment restrictions. For purposes of this subparagraph (h), 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 MST, 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, and has distributed all of its
investment company taxable income and net capital gain (as defined in the Code)
for periods ending prior to the Closing Date;
(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 MST 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
applicable federal and state 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 MST, on behalf
of the Acquiring Fund, and this Agreement constitutes a valid and binding
obligation of MST, 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, B, C, K, R and Y 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 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 FUND
5.1. The Acquiring Fund and the Acquired Fund 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 Fund covenants that the Class A, B, C, K, R and 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 Fund 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 Fund 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. MST, on behalf of the Acquired Fund, 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 (a) vest in and confirm (i) the title and
possession of MST, on behalf of the Acquired Fund, of the Acquiring Fund Shares
to be delivered hereunder, and (ii) the title and possession of MST, on behalf
of the Acquiring Fund, of all the Assets, and (b) 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 FUND
The obligations of MST, on behalf of the Acquired Fund, to consummate
the transactions provided for herein shall be subject, at MSTs election, to
the performance by MST, 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 MST, 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. MST, on behalf of the Acquiring Fund, shall have executed and
delivered to the Acquired Fund an Assumption of Liabilities, certified by an
officer of the Acquiring Fund, dated as of the Closing Date, pursuant to which
MST, on behalf of the Acquiring Fund, assumes all the Liabilities of the
Acquired Fund existing on the Valuation Date;
6.3. MST, on behalf of the Acquiring Fund, shall have delivered to
the Acquired Fund a certificate executed by MSTs 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 MST, 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;
6.4. MST, 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 MST, on behalf of the Acquiring
Fund, on or before the Closing Date; and
6.5. The number of full and fractional Class A, B, C, K, R and 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 MST, on behalf of the Acquiring Fund, to complete the
transactions provided for herein shall be subject, at MSTs election, to the
performance by MST, on behalf of the Acquired Fund, 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 MST, on behalf of the
Acquired Fund, contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date;
7.2. MST shall have delivered to the Acquiring Fund a statement of
the Assets and Liabilities of the Acquired Fund, as of the Closing Date,
certified by the Treasurer of MST;
7.3. MST, on behalf of the Acquired Fund, shall have delivered to the
Acquiring Fund a certificate executed in the name of the 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
MST, on behalf of the Acquired 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;
7.4. MST, on behalf of the Acquired 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 MST, on behalf of the
Acquired Fund, on or before the Closing Date;
7.5. The number of full and fractional Class A, B, C, K, R and 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 Fund 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 (a) 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 (b) 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 FUND
If any of the conditions set forth below have not been satisfied on
or before the Closing Date with respect to MST, on behalf of the Acquired
Fund or MST, on behalf of the Acquiring Fund, MST 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 MSTs 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 MST 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 Fund; and
8.3. MST shall have received the opinion of Dechert LLP, counsel
to MST, addressed to MST 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 Dechert
LLP, counsel to MST, of representations it shall request of MST.
Notwithstanding anything herein to the contrary, MST may not consummate the
transactions contemplated by this Agreement if this condition is not satisfied.
9. INDEMNIFICATION
9.1. MST, out of the Acquiring Funds 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 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 Acquired 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 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. MST, out of the Acquired Funds 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. MST, on behalf of the Acquiring Fund and on behalf of the
Acquired Fund, represents and warrants that there are no brokers or finders
entitled to receive any payments in connection with the transactions provided
for herein, other than any brokerage fees and expenses in connection with the
Reorganization as set forth in paragraph 10.2.
10.2. The expenses relating to the proposed Reorganization will be
borne solely by MCM and its affiliates. No such expenses shall be borne by the
Acquired Fund 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. MST has not made any representation, warranty or covenant, on
behalf of either the Acquired Fund or the Acquiring Fund, not set forth herein,
and this Agreement constitutes the entire agreement between the Acquiring Fund
and the 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 the Acquired Fund 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 MSTs 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 MST.
14. HEADINGS; GOVERNING LAW; 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. 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.
14.4. This Agreement may be executed in any number of counterparts,
each of which, when executed and delivered, shall be deemed to be an original.
[Signatures Appear on the Following Page]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by a duly authorized officer.
MUNDER SERIES TRUST,
on behalf of the Munder Small-Mid Cap Fund
By:
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Secretary
MUNDER SERIES TRUST,
on behalf of the Munder Mid-Cap Core Growth Fund
By:
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Secretary
With respect to Paragraph 10.2 of this Agreement, Accepted and Acknowledged by:
MUNDER CAPITAL MANAGEMENT
By:
Xxxxx X. Xxxxxxx
Chief Financial Officer
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