Item 77Q1(g)
MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION
("Agreement") is made as of this 15th day of August, 2011, by Munder
Series Trust ("MST"), a Delaware statutory trust, with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, on behalf of
the Munder Growth Opportunities Fund ("Acquiring Fund") and on behalf
of the Munder Large-Cap Growth Fund ("Acquired Fund"), each 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 and Y shares of the Acquiring Fund
("Acquiring Fund Shares") corresponding to or designated in this
Agreement in Section 1.1 of this Agreement as the corresponding class 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");
WHEREAS, the Acquired Fund owns securities that generally
are assets of the character in which the Acquiring Fund is permitted to
invest;
WHEREAS, the Board of Trustees of MST have determined, with
respect to the Acquiring Fund, that (i) the sale, assignment, conveyance,
transfer and delivery of all of the property and assets of the Acquired Fund
for the corresponding 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 (ii) the interests of the existing
shareholders of the Acquiring Fund would not be diluted as a result of this
transaction; and
WHEREAS, the Board of Trustees of MST have also determined,
with respect to the Acquired Fund, that (i) the sale, assignment,
conveyance, transfer and delivery of all of the property and assets of the
Acquired Fund for corresponding 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 (ii) 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 the requisite approval by Acquired Fund
Shareholders (as defined in paragraph 3.1 below) 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, A, and 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 (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"). For purposes of this Agreement, and this paragraph 1.1 in
particular, Class K shares of the Acquired Fund shall be deemed to
correspond to Class A shares of the Acquiring Fund.
1.2. The property and assets of MST attributable to the
Acquired Fund to be sold, assigned, conveyed transferred and delivered
to and 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 stock dividends or other
distribution that remain unpaid and/or have 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 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 the Acquired Fund. Such distribution and
liquidation will be accomplished, with respect to each class of the
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, B, C, A, and Y Acquiring Fund Shares to be so credited
to Class A, B, C, K, 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, 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 Fund's 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 Fund's then-
current prospectus and statement of additional information, each as may
be supplemented, and valuation procedures established by MST's Board
of Trustees.
2.2. The net asset value of each Class A, B, C, 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 Fund's then-current
prospectus and statement of additional information, each as may be
supplemented, and valuation procedures established by MST's Board of
Trustees.
2.3. The number of the Class A, B, C, and Y Acquiring Fund
Shares to be issued (including fractional shares, if any) in exchange for
the 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
corresponding Class A, B, C, K, 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"), MST's administrator.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be September 16, 2011, 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 or at such other time and/or
place as the parties may agree.
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 (2) business days prior to or on the Closing
Date, and (b) the Custodian 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 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 (5) 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 Fund's
Assets are deposited, the Acquired Fund's 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 BNY Mellon Investment Servicing (US)
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, 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 corresponding 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
corresponding 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, stock 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 practicable 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 business trust duly organized, validly existing and in
good standing under the laws of Delaware, with power under MST'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) 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, 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, convey,
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 MST's Declaration or by-laws ("By-
Laws") 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 MST's 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 that 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, 2010 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, 2010, 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 the Acquired
Fund, the discharge of the 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 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 ("RIC"), 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 authorized 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 Board of
Trustees of MST, on behalf of the Acquired Fund, and by the approval of
the Acquired Fund's shareholders, as described in paragraph 8.1, 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 the Registration Statement (as defined in
paragraph 5.5) or any other documents filed or to be filed with any federal,
state or local regulatory authority (including the Financial Industry
Regulatory Authority, Inc. ("FINRA")), 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 MST's Declaration, as amended from time to time 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, 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 MST's 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 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. MST, on behalf
of the Acquiring Fund, knows of no facts that 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, 2010 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, 2010, 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 (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 RIC, 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 authorized 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, 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 Statement (as defined in
paragraph 5.5) or other documents filed or to be filed with any federal,
state or local regulatory authority (including FINRA), 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.
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 will (a) send appropriate notification
to its shareholders of the Acquired Fund regarding the transactions
contemplated by this Agreement and (b) call a meeting of the
shareholders of the Acquired Fund to consider and act upon this
Agreement and to take all other action necessary to obtain approval of the
transactions contemplated herein
5.3. The Acquired Fund covenants that the Class A, B, C,
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.
5.4. 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.
5.5. MST, on behalf of the Acquiring Fund, shall prepare and
file a Registration Statement on Form N-14 in compliance with the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder with respect to the Reorganization ("Registration Statement").
The Acquired Fund will provide in a timely manner to MST such
information regarding the Acquired Fund as may be necessary for the
preparation of the Registration Statement.
5.6. 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.
5.7. 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.
5.8. 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
MST's 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 MST'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
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 Acquiring Fund Shares
to be issued in connection with the Reorganization, in exchange for the
number of full and fractional corresponding Acquired Fund Shares, 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 MST's
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 Acquired Fund Shares
in connection with the Reorganization, in exchange for the number of full
and fractional corresponding Acquiring Fund Shares, 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, the other party to this
Agreement may, at its option, refuse 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 holders of the
outstanding shares of the Acquired Fund in accordance with the provision
of MST's Declaration and By-Laws, applicable state law and the 1940 Act;
8.2. On the Closing Date no action, suit or other proceeding
shall be pending or, to the knowledge of MST, 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;
8.3. 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;
8.4. The Registration Statement shall have become effective
under the 1933 Act and no stop orders suspending the effectiveness
thereof 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 1933 Act;
and
8.5. 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 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 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 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. MST, on behalf of the Acquiring Fund and 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. 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 RIC within the meaning of Section 851
of the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. MST, on behalf of the Acquiring Fund and the Acquired
Fund, agrees that neither party has made any representation, warranty or
covenant 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 MST'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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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 Large-Cap
Growth Fund
By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
Xxxxxxx X.
Xxxxxxxxxxx
Vice
President and
Secretary
MUNDER SERIES
TRUST,
on behalf of the
Munder Growth
Opportunities Fund
By: /s/ Xxxxxxx X.
Xxxxxxxxxxx
Xxxxxxx X.
Xxxxxxxxxxx
Vice
President and
Secretary
With respect to
Paragraph 10.2 of
this Agreement,
Accepted and
Acknowledged by:
MUNDER CAPITAL
MANAGEMENT
By: /s/ Xxxxx X.
Xxxxxxx
Xxxxx X.
Xxxxxxx
Chief
Financial Officer
16376789.3
See Section 1.1. Class K shares of the Acquired Fund shall be deemed
to correspond to Class Y shares of the Acquired Fund.
