Item 77Q1(g)
MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement) is made as of this 13th
day of May, 2008, by Munder Series Trust, a Delaware statutory trust (Trust),
with its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, on behalf of the Munder Bond Fund (Acquiring Fund), a separate series of
the Trust, and the Munder Intermediate Bond Fund (Acquired Fund), also a
separate series of the Trust. This Agreement is intended to be and is adopted
as a plan of reorganization and liquidation within the meaning of Section
368(a)(1) of the United States Internal Revenue Code of 1986, as amended
(Code). The reorganization and liquidation will consist of (1) the sale,
assignment, conveyance, transfer and delivery of all of the property and assets
of the Acquired Fund to the Acquiring Fund in exchange solely for shares of
beneficial interest of Class A, Class B, Class C, Class K and Class Y shares of
the Acquiring Fund (Acquiring Fund Shares) corresponding to the classes of
outstanding shares of beneficial interest of the Acquired Fund (Acquired Fund
Shares), as described herein, (2) the assumption by the Acquiring Fund of all
liabilities of the Acquired Fund, and (3) the distribution of the Acquiring
Fund Shares to the shareholders of the Acquired Fund in complete liquidation of
the Acquired Fund, as provided herein (Reorganization), all upon the terms and
conditions hereinafter set forth in this Agreement.
WHEREAS, the Acquired Fund and the Acquiring Fund are each a series of the
Trust, 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 the Trust have determined, with respect to the
Acquiring Fund, that the sale, assignment, conveyance, transfer and delivery of
all of the property and assets of the Acquired 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 the Trust 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, Class B, Class C, Class K and Class 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 the Trust
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 percent) of its investment
company taxable income (computed without regard to any deduction for dividends
paid) and realized net capital gain (after reduction for any available capital
loss carryover), if any, for the current taxable year through the Closing Date.
1.4 Immediately following the actions contemplated by paragraph 1.1, the Trust
shall take such actions necessary to complete the liquidation of the Acquired
Fund. To complete the liquidation, the Trust, 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, Class B,
Class C, Class K and Class Y Acquiring Fund Shares to be so credited to Class
A, Class B, Class C, Class K and Class Y Acquired Fund Shareholders,
respectively, shall, with respect to each class, be equal to the aggregate net
asset value of the Acquired Fund Shares of the corresponding class owned by
Acquired Fund Shareholders on the Closing Date. All issued and outstanding
Acquired Fund Shares will simultaneously be canceled on the books of the
Acquired Fund. The Acquiring Fund will not issue certificates representing
the Class A, Class B, Class C, Class K and Class 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
1.1 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 the Trusts Board of Trustees.
1.2 The net asset value of each Class A, Class B, Class C, Class K and Class Y
Acquiring Fund Share shall be the net asset value per share computed with
respect to that class as of the Valuation Date, 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 the Trusts Board of Trustees.
1.3 The number of the Class A, Class B, Class C, Class K and Class Y Acquiring
Fund Shares to be issued (including fractional shares, if any) in exchange for
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 Class A, Class B,
Class C, Class K and Class Y Acquired Fund Shares, as the case may be,
determined using the same valuation procedures referred to in paragraph 2.1,
by the net asset value of a corresponding Acquiring Fund Share, determined
using the same valuation procedures referred to in paragraph 2.2.
1.4 All computations of value shall be made by State Street Bank and Trust
Company, in its capacity as sub-administrator for the Trust, and shall be
subject to confirmation by Munder Capital Management (MCM), the Trusts
administrator.
3. CLOSING AND CLOSING DATE
1.1 The Closing Date shall be June 13, 2008, 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 the
Trust.
1.2 The Trust shall direct State Street Bank and Trust Company, as custodian
for the Acquired Fund (Custodian), to deliver to the Trust 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) all
necessary taxes in connection with the delivery of the Assets, including all
applicable federal and state stock transfer stamps, if any, have been paid or
provision for payment has been made. 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.
1.3 The Trust shall direct PFPC, Inc., in its capacity as transfer agent for
the Trust (Transfer Agent), to deliver to the Trust at the Closing a
certificate of an authorized officer of the Transfer Agent stating that its
records contain the names and addresses of each Acquired Fund Shareholder and
the number and percentage ownership of outstanding Class A, Class B, Class C,
Class K and Class Y shares owned by each such shareholder immediately prior to
the Closing. The Secretary of the Trust shall confirm that (a) the appropriate
number of Acquiring Fund Shares have been credited to the Acquired 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 the Trust shall execute such bills of sale, checks, assignments,
share certificates, if any, receipts or other documents as necessary to effect
the Reorganization.
1.4 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 the Trust, 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
1.1 Except as has been fully disclosed to the Acquiring Fund prior to the
date of this Agreement in a written instrument executed by an officer of the
Trust, the Trust, on behalf of the Acquired Fund, represents and warrants to
the Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as series of the Trust, which is
a statutory trust duly organized, validly existing and in good standing under
the laws of the State of Delaware, with power under the Trusts Declaration of
Trust, as amended from time to time (Declaration), to own all of its Assets and
to carry on its business as it is now being conducted;
(b) The Trust is a registered investment company classified as a management
company of the open end type, and its registration with the Commission as an
investment company under the 1940 Act, and the registration of the Class A,
Class B, Class C, Class K and Class Y Acquired Fund Shares under the Securities
Act of 1933, as amended (1933 Act), is in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquired Fund of
the transactions contemplated herein, except such as may be required under the
1933 Act, the Securities Exchange Act of 1934, as amended (1934 Act), the 1940
Act and state securities laws;
(d) The current prospectus and statement of additional information of the
Acquired Fund and each prospectus and statement of additional information of
the Acquired Fund used at all times prior to the date of this Agreement
conforms or conformed at the time of its use in all material respects to
the applicable requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the Commission thereunder and does not or did not at the
time of its use include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not materially misleading;
(e) On the Valuation Date, the Trust, on behalf of the Acquired Fund, will
have good and marketable title to the Assets of the Acquired Fund and full
right, power, and authority to sell, assign, transfer and deliver such Assets
hereunder free of any liens or other encumbrances, and upon delivery and
payment for such Assets, the Trust, on behalf of the Acquiring Fund, will
acquire good and marketable title thereto, subject to no restrictions on the
full transfer thereof, including such restrictions as might arise under the
1933 Act;
(f) The Acquired Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a material violation
of the Trusts Declaration or By Laws or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Trust, on behalf
of the Acquired Fund, is a party or by which it is bound, or (ii) the
acceleration of any material obligation, or the imposition of any material
penalty, under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Trust, on behalf of the Acquired Fund, is a party or by
which it is bound;
(g) All material contracts or other commitments of the Acquired Fund (other
than this Agreement and certain investment contracts including options,
futures, and forward contracts) will terminate without liability to the
Acquired 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 the Trusts
knowledge, threatened against the Trust, with respect to the Acquired Fund or
any of its properties or Assets, that, if adversely determined, would
materially and adversely affect its financial condition or the conduct of its
business. The Trust, on behalf of the Acquired Fund, knows of no facts which
might form the basis for the institution of such proceedings and is not a party
to or subject to the provisions of any order, decree or judgment of any court
or governmental body which materially and adversely affects its business or its
ability to consummate the transactions herein contemplated;
(i) The Statement of Assets and Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of Investments of the Acquired Fund at June
30, 2007 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, 2007, there has not been any material adverse change in
the Acquired Funds 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 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 the Trust, no such return is currently
under audit and no assessment has been asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable year
ending on the Closing Date), the Acquired Fund has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a regulated
investment company, has been (or will be) eligible to and has computed
(or will compute) its federal income tax under Section 852 of the Code, and
will have distributed all of its investment company taxable income (computed
without regard to any deduction for dividends paid) and net capital gain (as
defined in the Code) that has accrued through the Closing Date, and before the
Closing Date will have declared dividends sufficient to distribute all of its
investment company taxable income (computed without regard to any deduction for
dividends paid) and net capital gain (after reduction for any available
capital loss carryover) for the period ending on the Closing Date;
(m) All issued and outstanding Acquired Fund Shares are, and on the Closing
Date will be, duly and validly issued and outstanding, fully paid and
non assessable by the Trust and have been offered and sold in every state,
territory and the District of Columbia in compliance in all material respects
with applicable registration requirements of the 1933 Act and other securities
laws. All of the issued and outstanding Acquired Fund Shares will, at the time
of Closing, be held by the persons and in the amounts set forth in the records
of the Transfer Agent, on behalf of the Acquired Fund, as provided in paragraph
3.3. The Acquired Fund does not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the Acquired Fund Shares, nor is
there outstanding any security convertible into any of the Acquired Fund
Shares;
(n) The execution, delivery and performance of this Agreement and the
transactions contemplated herein have been duly authorized by all necessary
action, if any, on the part of the Trustees of the Trust, on behalf of the
Acquired Fund, and this Agreement constitutes a valid and binding obligation of
the Trust, on behalf of the Acquired Fund, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors rights and to
general equity principles; and
(o) The information to be furnished by the Acquired Fund for use in
registration statements, and other documents filed or to be filed with any
federal, state or local regulatory authority (including the 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.
1.2 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 the Trust,
the Trust, 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 the Trust, which is
a statutory trust duly organized, validly existing, and in good standing under
the laws of the State of Delaware, with power under the Trusts Declaration to
own all of its properties and assets and to carry on its business as it is now
being conducted;
(b) The Trust is a registered investment company classified as a management
company of the open end type, and its registration with the Commission as an
investment company under the 1940 Act and the registration of the Class A,
Class B, Class C, Class K and Class Y Acquiring Fund Shares under the 1933 Act,
is in full force and effect;
(c) No consent, approval, authorization, or order of any court or
governmental authority is required for the consummation by the Acquiring Fund
of the transactions contemplated herein, except such as may be required under
the 1933 Act, the 1934 Act, the 1940 Act and state securities laws;
(d) The current prospectus and statement of additional information of the
Acquiring Fund and each prospectus and statement of additional information of
the Acquiring Fund used at all times prior to the date of this Agreement
conforms or conformed at the time of its use in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not or did not at the time
of its use include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading;
(e) The Acquiring Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a material violation
of the Trusts Declaration or By Laws or of any agreement, indenture,
instrument, contract, lease or other undertaking to which the Trust, on behalf
of the Acquiring Fund, is a party or by which it is bound, or (ii) the
acceleration of any material obligation, or the imposition of any material
penalty, under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Trust, on behalf of the Acquiring Fund, is a party or by
which it is bound;
(f) No litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or, to its knowledge,
threatened against the Trust, with respect to the Acquiring Fund or any of the
Acquiring Funds properties or assets, that, if adversely determined, would
materially and adversely affect the Acquiring Funds financial condition or the
conduct of its business. The Trust, on behalf of the Acquiring Fund, knows of
no facts which might form the basis for the institution of such proceedings and
is not a party to or subject to the provisions of any order, decree or judgment
of any court or governmental body which materially and adversely affects the
Acquiring 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, 2007 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, 2007, 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 the Trust, no such return is currently
under audit and no assessment has been asserted with respect to such returns;
(j) For each taxable year of its operation (including the taxable year that
includes the Closing Date), the Acquiring Fund has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a regulated
investment company, has been eligible to (or will be eligible to) and has
computed (or will compute) its federal income tax under Section 852 of the
Code, 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 the Trust and have been offered and sold in every state,
territory and the District of Columbia in compliance in all material respects
with applicable registration requirements of the 1933 Act and other 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 the Trust, on behalf of the
Acquiring Fund, and this Agreement constitutes a valid and binding obligation
of the Trust, on behalf of the Acquiring Fund, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors
rights and to general equity principles;
(m) The Class A, Class B, Class C, Class K and Class Y Acquiring Fund Shares
to be issued and delivered to 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
1.1 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.
1.2 The Acquired Fund covenants that the Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares to be issued hereunder are not being acquired
for the purpose of making any distribution thereof, other than in accordance
with the terms of this Agreement.
1.3 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.
1.4 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.
1.5 The Trust, 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
the Trust, on behalf of the Acquired Fund, of the Acquiring Fund Shares to be
delivered hereunder, and (ii) the title and possession of the Trust, on behalf
of the Acquiring Fund, of all the Assets, and (b) otherwise to carry out the
intent and purpose of this Agreement.
1.6 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 the Trust, on behalf of the Acquired Fund, to consummate the
transactions provided for herein shall be subject, at the Trusts election, to
the performance by the Trust, on behalf of the Acquiring Fund, of all the
obligations to be performed by it hereunder on or before the Closing Date, and,
in addition thereto, the following further conditions:
1.1 All representations and warranties of the Trust, on behalf of the
Acquiring Fund, contained in this Agreement shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and as of the Closing Date;
1.2 The Trust, 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
the Trust, on behalf of the Acquiring Fund, assumes all the Liabilities of the
Acquired Fund existing on the Valuation Date;
1.3 The Trust, on behalf of the Acquiring Fund, shall have delivered to the
Acquired Fund a certificate executed by the Trusts President or Vice President
and its Treasurer or Assistant Treasurer and dated as of the Closing Date to
the effect that the representations and warranties of the Trust, on behalf of
the Acquiring Fund, made in this Agreement are true and correct at and as of
the Closing Date, except as they may be affected by the transactions
contemplated by this Agreement;
1.4 The Trust, on behalf of the Acquiring Fund, shall have performed all
of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by the Trust, on behalf of the
Acquiring Fund, on or before the Closing Date; and
1.5 The number of full and fractional Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares to be issued in connection with the
Reorganization shall have been calculated in accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Trust, on behalf of the Acquiring Fund, to complete
the transactions provided for herein shall be subject, at the Trusts election,
to the performance by the Trust, 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:
1.1 All representations and warranties of the Trust, on behalf of the
Acquired Fund, contained in this Agreement shall be true and correct in all
material respects as of the date hereof 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;
1.2 The Trust 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 the Trust;
1.3 The Trust, 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 the Trust, 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;
1.4 The Trust, 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 the Trust, on behalf of the
Acquired Fund, on or before the Closing Date;
1.5 The number of full and fractional Class A, Class B, Class C, Class K
and Class Y Acquiring Fund Shares to be issued in connection with the
Reorganization shall have been calculated in accordance with paragraph 1.1; and
1.6 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 the Trust, on behalf of the Acquired Fund or
the Trust, on behalf of the Acquiring Fund, the Trust may, at its option,
refuse to consummate the transactions contemplated by this Agreement:
1.1 On the Closing Date no action, suit or other proceeding shall be
pending or, to the Trusts 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;
1.2 All consents of other parties and all other consents, orders and
permits of federal, state and local regulatory authorities deemed necessary
by the Trust to permit consummation, in all material respects, of the
transactions contemplated hereby shall have been obtained, except where
failure to obtain any such consent, order or permit would not involve a risk
of a material adverse effect on the assets or properties of the Acquiring Fund
or the Acquired Fund; and
1.3 The Trust shall have received the opinion of Dechert LLP, counsel to the
Trust, addressed to the Trust substantially to the effect that, based upon
certain facts, assumptions and representations, the transaction contemplated by
this Agreement shall constitute a tax-free reorganization for federal income
tax purposes. The delivery of such opinion is conditioned upon receipt by
Dechert LLP, counsel to the Trust, of representations it shall request of the
Trust. Notwithstanding anything herein to the contrary, the Trust may not
consummate the transactions contemplated by this Agreement if this condition
is not satisfied.
9. INDEMNIFICATION
1.1 The Trust, 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.
1.2 The Trust, 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
1.1 The Trust, 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.
1.2 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
1.1 The Trust 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.
1.2 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 the Trusts Board of Trustees, at any time prior
to the Closing Date, if circumstances should develop that, in its opinion, make
proceeding with the Agreement inadvisable.
13.AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as may
be deemed necessary or advisable by the authorized officers of the Trust.
14.HEADINGS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
1.1 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.
1.2 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.
1.3 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.
1.4 This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its President or Vice President.
MUNDER SERIES TRUST,
on behalf of its
MUNDER BOND FUND
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President, Secretary, CCO & CLO
MUNDER SERIES TRUST,
on behalf of its
MUNDER INTERMEDIATE BOND FUND
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President, Secretary, CCO & CLO
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 Administrative Officer
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