THE MUNDER FUNDS, INC.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement) is made as of
this 11th day of February, 2003, by The Munder Funds, Inc., a
Maryland corporation (Company), with its principal place of business
at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, on behalf of the
Munder Multi-Season Growth Fund (Acquiring Fund), a separate series
of the Company, and the Munder Large-Cap Growth Fund (Acquired
Fund), also a separate series of the Company.
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
the transfer of all of the assets of the Acquired Fund to the
Acquiring Fund in exchange solely for Class A, Class B, Class C,
Class K and Class Y shares of common stock ($0.01 par value per
share) of the Acquiring Fund (Acquiring Fund Shares), the assumption
by the Acquiring Fund of all liabilities of the Acquired Fund, and
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 an open-end, registered investment company of the management type
and the Acquired Fund owns securities that generally are assets of
the character in which the Acquiring Fund is permitted to invest;
WHEREAS, the Directors of the Company have determined, with respect
to the Acquiring Fund, that the exchange of all of the 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 its shareholders 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 Directors of the Company also have determined, with
respect to the Acquired Fund, that the exchange of all of the 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 its shareholders 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 the requisite approval of the Acquired
Fund shareholders 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 transfer all of the
Acquired Fund*s assets, as set forth in paragraph 1.2, to the
Acquiring Fund, and the Acquiring Fund agrees in exchange therefor:
(i) 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 Fund*s
net assets with respect to each corresponding class (Class A, Class
B, Class II, Class K and Class Y, respectively), computed in the
manner and as of the time and date set forth in paragraph 2.1, by
the net asset value of one Acquiring Fund Share of the corresponding
class, computed in the manner and as of the time and date set forth
in paragraph 2.2; and (ii) to assume all liabilities of 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 assets of the Acquired Fund to be acquired by
the Acquiring Fund shall consist of all assets and property,
including, without limitation, all 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 (collectively, Assets).
1.3. The Acquired Fund will endeavor 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 as defined in paragraph 2.1
(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, if any, for the current taxable year
through the Closing Date.
1.4. Immediately after the transfer of assets provided
for in paragraph 1.1, the Acquired Fund will (a) distribute to the
Acquired Fund*s shareholders of record with respect to each class of
its shares as of the Closing as defined in paragraph 3.1 (Acquired
Fund Shareholders), on a pro rata basis within that class, the
Acquiring Fund Shares of the corresponding class received by the
Acquired Fund pursuant to paragraph 1.1 and (b) completely
liquidate. Such distribution and liquidation will be accomplished,
with respect to each class of 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, Class B, Class C, Class K and Class Y Acquiring Fund Shares
to be so credited to Class A, Class B, Class II, 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 shares
of common stock ($0.01 par value per share) of the Acquired Fund
(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, although shares certificates representing
interests in Class A, Class B, Class II, Class K and Class Y
Acquired Fund Shares will represent a number of the corresponding
class of Acquiring Fund Shares after the Closing Date, as determined
in accordance with Section 2.3. The Acquiring Fund shall not issue
certificates representing the Class A, Class B, Class C, Class K and
Class Y Acquiring Fund Shares in connection with such exchange.
1.5. Ownership of Acquiring Fund Shares will be shown
on the books of the Acquiring Fund*s Transfer Agent, as defined in
paragraph 3.3.
1.6. Any reporting responsibility of the Acquired 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 hereinafter called the Valuation Date), computed
using the valuation procedures set forth in the then-current
prospectus and statement of additional information with respect to
the Acquired Fund and valuation procedures established by the
Company*s Board of Directors.
2.2. The net asset value of a Class A, Class B, Class
C, Class K and Class Y Acquiring Fund Share shall be the net asset
value per share computed with respect to that class as of the
Valuation Date, using the valuation procedures set forth in the
Acquiring Fund*s then-current prospectus and statement of additional
information, and valuation procedures established by the Company*s
Board of Directors.
2.3. The number of the Class A, Class B, Class C, Class
K and Class Y Acquiring Fund Shares to be issued (including
fractional shares, if any) in exchange for 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 Class A,
Class B, Class II, Class K and Class Y of the Acquired Fund, as the
case may be, determined using the same valuation procedures referred
to in paragraph 2.1, by the net asset value of an Acquiring Fund
Share, determined in accordance with paragraph 2.2.
2.4. All computations of value shall be made by State
Street Bank and Trust Company, in its capacity as sub-administrator
for the Company, and shall be subject to confirmation by the
Company*s administrator and independent accountants.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be April 25, 2003, 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 Company or at such other place as the parties may agree.
3.2. The Company shall direct State Street Bank and
Trust Company, as custodian for the Acquired Fund (Custodian), to
deliver to the Acquiring Fund, at the Closing, a certificate of an
authorized officer stating that (i) the Assets have been delivered
in proper form to the Acquiring Fund within two business days prior
to or on the Closing Date, and (ii) all necessary taxes in
connection with the delivery of the Assets, including all applicable
Federal and state stock transfer stamps, if any, have been paid or
provision for payment has been made. 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 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 Investment Company Act of 1940, as amended (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. The Company shall direct PFPC, Inc., in its
capacity as transfer agent for the Company (Transfer Agent), to
deliver to the Acquiring Fund at the Closing a certificate of an
authorized officer stating that its records contain the names and
addresses of the Acquired Fund Shareholders and the number and
percentage ownership of outstanding Class A, Class B, Class II,
Class K and Class Y shares owned by each such shareholder
immediately prior to the Closing. The Acquiring Fund shall deliver
to the Secretary of the Acquired Fund a confirmation evidencing that
(a) the appropriate number of Acquiring Fund Shares have been
credited to the Acquired Fund*s account on the books of the
Acquiring Fund pursuant to paragraph 1.1 prior to the actions
contemplated by paragraph 1.3 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 each party shall deliver
to the other such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as such other
party or its counsel may reasonably request.
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 Directors of the Company, accurate
appraisal of the value of the net assets of the Acquiring Fund or
the Acquired Fund is impracticable, the Closing Date shall be
postponed until the first business day after the day when trading
shall have been fully resumed and reporting shall have been
restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the
Acquiring Fund prior to the date of this Agreement in a written
instrument executed by an officer of the Company, the Company, on
behalf of the Acquired Fund, represents and warrants to the
Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as a
series of the Company, which is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland, with power under the Company*s Articles of Incorporation,
as amended from time to time (Charter), to own all of its Assets and
to carry on its business as it is now being conducted;
(b) The Company 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
II, 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 Company, on
behalf of the Acquired Fund, will have good and marketable title to
the Assets 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 Company, 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 Company*s Charter or
By-Laws or of any agreement, indenture, instrument, contract, lease
or other undertaking to which the Company, on behalf of the Acquired
Fund, is a party or by which it is bound, or (ii) the acceleration
of any obligation, or the imposition of any penalty, under any
agreement, indenture, instrument, contract, lease, judgment or
decree to which the Company, 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 its knowledge, threatened against the
Company, 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 Company, 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, 2002 have been audited
by Ernst & Young LLP, independent accountants, and are in accordance
with accounting principles generally accepted in the United States
of America (GAAP) consistently applied, and such statements (copies
of which have been furnished to the Acquiring Fund) 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) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets, and Schedule of
Investments of the Acquired Fund at December 31, 2002 (unaudited)
are, or will be when sent to Acquired Fund Shareholders in the
regular course, in accordance with GAAP consistently applied, and
such statements (copies of which have been, or will be, furnished to
the Acquiring Fund) present or will present fairly, in all material
respects, the financial condition of the Acquired Fund as of such
date in accordance with GAAP, including all 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;
(k) Since June 30, 2002, 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 maturing more than one year from the date such
indebtedness was incurred. For the purposes of this subparagraph
(k), 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 Acquired Fund liabilities, or the redemption
of Acquired Fund Shares by shareholders of the Acquired Fund shall
not constitute a material adverse change;
(l) 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 of the Acquired Fund*s
knowledge, no such return is currently under audit and no assessment
has been asserted with respect to such returns;
(m) 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 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 and net capital gain for the period ending on the
Closing Date;
(n) 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 Company 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;
(o) The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action, if
any, on the part of the Directors of the Company, on behalf of the
Acquired Fund, and, subject to the approval of the shareholders of
the Acquired Fund, this Agreement constitutes a valid and binding
obligation of the Company, 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;
(p) The information to be furnished by the
Acquired Fund for use in registration statements, proxy materials
and other documents filed or to be filed with any Federal, state or
local regulatory authority (including the National Association of
Securities Dealers, Inc.), which may be necessary in connection with
the transactions contemplated hereby, shall be accurate and complete
in all material respects and shall comply in all material respects
with Federal securities and other laws and regulations thereunder
applicable thereto; and
(q) The combined proxy statement and prospectus
(Proxy Statement) to be included in the Registration Statement
referred to in paragraph 5.6, insofar as it relates to the Acquired
Fund, will, on the effective date of the Registration Statement and
on the Closing Date (i) not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not materially
misleading, provided, however, that the representations and
warranties of this subparagraph (q) shall not apply to statements in
or omissions from the Proxy Statement and the Registration Statement
made in reliance upon and in conformity with information that was
furnished by the Acquiring Fund for use therein, and (ii) comply in
all material respects with the provisions of the 1933 Act, the 1934
Act, and the 1940 Act and the rules and regulations thereunder.
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 the Company, the Company, 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 Company, which is a corporation duly organized,
validly existing, and in good standing under the laws of the State
of Maryland, with power under the Company*s Charter to own all of
its properties and assets and to carry on its business as it is now
being conducted;
(b) The Company 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) On the Closing Date, the Company, on behalf
of the Acquiring Fund, will have good and marketable title to the
Acquiring Fund*s assets, free of any liens or other encumbrances,
except those liens or encumbrances as to which the Acquired Fund has
received notice and necessary documentation at or prior to the
Closing;
(f) 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 Company*s Charter or
By-Laws or of any agreement, indenture, instrument, contract, lease
or other undertaking to which the Company, on behalf of the
Acquiring Fund, is a party or by which it is bound, or (ii) the
acceleration of any obligation, or the imposition of any penalty,
under any agreement, indenture, instrument, contract, lease,
judgment or decree to which the Company, on behalf of the Acquiring
Fund, is a party or by which it is bound;
(g) 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
Company, with respect to the Acquiring Fund or any of the Acquiring
Fund*s properties or assets, that, if adversely determined, would
materially and adversely affect the Acquiring Fund*s financial
condition or the conduct of its business. The Company, on behalf of
the Acquiring Fund, knows of no facts which might form the basis for
the institution of such proceedings and is not a party to or subject
to the provisions of any order, decree or judgment of any court or
governmental body which materially and adversely affects the
Acquiring Fund*s business or its ability to consummate the
transactions herein contemplated;
(h) 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, 2002 have been audited
by Ernst & Young LLP, independent accountants, and are in accordance
with GAAP consistently applied, and such statements (copies of which
have been furnished to the Acquired Fund) 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;
(i) The Statement of Assets and Liabilities,
Statements of Operations and Changes in Net Assets, and Schedule of
Investments of the Acquired Fund at December 31, 2002 (unaudited)
are, or will be when sent to Acquiring Fund Shareholders in the
regular course, in accordance with GAAP consistently applied, and
such statements (copies of which have been, or will be, furnished to
the Acquired Fund) present or will present fairly, in all material
respects, the financial condition of the Acquiring Fund as of such
date in accordance with GAAP, including all 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;
(j) Since June 30, 2002, 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 maturing more than one year from the date such
indebtedness was incurred, except as otherwise disclosed to and
accepted by the Acquired Fund. For purposes of this subparagraph
(j), 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;
(k) 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 of the Acquiring Fund*s
knowledge 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 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;
(m) 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 Company and
have been offered and sold in every state, territory and the
District of Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act and other
securities laws. The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe for or purchase any
Acquiring Fund Shares, nor is there outstanding any security
convertible into any Acquiring Fund Shares;
(n) The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action, if
any, on the part of the Directors of the Company, on behalf of the
Acquiring Fund, and this Agreement constitutes a valid and binding
obligation of the Company, 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;
(o) 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
(p) The information to be furnished by the
Acquiring Fund for use in the registration statements, proxy
materials 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; and
(q) The Proxy Statement to be included in the
Registration Statement (and any amendment or supplement thereto),
insofar as it relates to the Acquiring Fund and the Acquiring Fund
Shares, will, from the effective date of the Registration Statement
through the date of the meeting of shareholders of the Acquired Fund
contemplated therein and on the Closing Date (i) not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements
were made, not materially misleading, provided, however, that the
representations and warranties of this subparagraph (q) shall not
apply to statements in or omissions from the Proxy Statement and the
Registration Statement made in reliance upon and in conformity with
information that was furnished by the Acquired Fund for use therein,
and (ii) comply in all material respects with the provisions of the
1933 Act, the 1934 Act, and the 1940 Act and the rules and
regulations thereunder.
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 Company will 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,
Class B, Class C, Class K and Class Y Acquiring Fund Shares to be
issued hereunder are not being acquired for the purpose of making
any distribution thereof, other than in accordance with the terms of
this Agreement.
5.4. Subject to the provisions of this Agreement, the
Acquiring Fund and the Acquired Fund will each 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. The Acquired Fund will provide the Acquiring Fund
with information reasonably necessary for the preparation of the
Proxy Statement (referred to in paragraph 4.1(q)) to be included in
a Registration Statement on Form N-14 (Registration Statement), in
compliance with the 1933 Act, the 1934 Act and the 1940 Act, in
connection with the meeting of the shareholders of the Acquired Fund
to consider approval of this Agreement and the transactions
contemplated herein.
5.6. The Acquiring Fund and the Acquired Fund shall
each 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. The Company, on behalf of the Acquired Fund,
covenants that it will, from time to time, as and when reasonably
requested by the Acquiring Fund, 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 the
Company, on behalf of the Acquiring Fund, may reasonably deem
necessary or desirable in order to vest in and confirm (a) the
Company*s, on behalf of the Acquired Fund*s, title to and possession
of the Acquiring Fund Shares to be delivered hereunder and (b) the
Company*s, on behalf of the Acquiring Fund*s, title to and
possession of all the Assets and to 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 the Company, on behalf of the Acquired
Fund, to consummate the transactions provided for herein shall be
subject, at the Company*s election, to the performance by the
Company, on behalf of the Acquiring Fund, of all the obligations to
be performed by it hereunder on or before the Closing Date, and, in
addition thereto, the following further conditions:
6.1. All representations and warranties of the Company,
on behalf of the Acquiring Fund, contained in this Agreement shall
be true and correct in all material respects as of the date hereof
and, except as they may be affected by the transactions contemplated
by this Agreement, as of the Closing Date, with the same force and
effect as if made on and as of the Closing Date;
6.2. The Company, on behalf of the Acquiring Fund,
shall have delivered to the Acquired Fund a certificate executed in
the name of the Acquiring Fund by its President or Vice President
and its Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to the Acquired Fund and dated as of the Closing Date,
to the effect that the representations and warranties of the
Company, 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, and
as to such other matters as the Acquired Fund shall reasonably
request;
6.3. The Company, 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 Company, on behalf of the Acquiring Fund, on or
before the Closing Date; and
6.4. The Acquired Fund and the Acquiring Fund shall
have agreed on 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 after such number has been
calculated in accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Company, on behalf of the Acquiring
Fund, to complete the transactions provided for herein shall be
subject, at the Company*s election, to the performance by the
Company, 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 the Company,
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. The Company shall have delivered to the Acquiring
Fund a statement of the Acquired Fund*s Assets and Liabilities, as
of the Closing Date, certified by the Treasurer of the Company;
7.3. The Company, 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, in a form reasonably satisfactory
to the Acquiring Fund and dated as of the Closing Date, to the
effect that the representations and warranties of the Company, 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, and as
to such other matters as the Acquiring Fund shall reasonably
request;
7.4. The Company, 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 Company, on behalf of the Acquired Fund, on or before
the Closing Date;
7.5. The Acquired Fund and the Acquiring Fund shall
have agreed on 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 after such number has 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 (i) all of its investment company
taxable income and all of its net realized capital gains, if any,
for the period from the close of its last fiscal year to 4:00 p.m.
Eastern time on the Closing Date; and (ii) any undistributed
investment company taxable income and net realized capital gains
from any period to the extent not otherwise already distributed.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING
FUND AND THE ACQUIRED FUND
If any of the conditions set forth below have not been
satisfied on or before the Closing Date with respect to the Company,
on behalf of the Acquired Fund, or the Company, on behalf of the
Acquiring Fund, the other party to this Agreement shall be entitled,
at its option, to refuse to consummate the transactions contemplated
by this Agreement:
8.1. The 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 provisions of the Company*s Charter and By-Laws, applicable
Maryland law and the 1940 Act, and certified copies of the
resolutions evidencing such approval shall have been delivered to
the Acquiring Fund. Notwithstanding anything herein to the
contrary, the Company may not waive the conditions set forth in this
paragraph 8.1;
8.2. On the Closing Date no action, suit or other
proceeding shall be pending or, to the Company*s knowledge,
threatened before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other relief in
connection with, this Agreement or the transactions contemplated
herein;
8.3. All consents of other parties and all other
consents, orders and permits of Federal, state and local regulatory
authorities deemed necessary by the Company 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, provided that either party hereto may for itself
waive any of such conditions;
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. The parties shall have received the opinion of
counsel to the Company addressed to the Company substantially to the
effect that, based upon certain facts, assumptions, and
representations, the transaction contemplated by this Agreement
shall constitute a tax-free reorganization for Federal income tax
purposes. The delivery of such opinion is conditioned upon receipt
by counsel to the Company of representations it shall request of the
Company. Notwithstanding anything herein to the contrary, the
Company may not waive the condition set forth in this paragraph 8.5.
9. INDEMNIFICATION
9.1. The Company, out of the Acquiring Fund*s assets
and property, 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.
9.2. The Company, out of the Acquired Fund*s assets and
property, 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.
10. BROKERAGE FEES AND EXPENSES
10.1. The Company, 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.
10.2. The expenses relating to the proposed
Reorganization will be borne solely by Munder Capital Management and
its affiliates. No such expenses shall be borne by the Acquired
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, preparation of the Registration Statement,
printing and distributing the Proxy Statement, legal fees,
accounting fees, securities registration fees, and expenses of
holding shareholders* meetings. Notwithstanding any of the
foregoing, expenses will in any event be paid by the party directly
incurring such expenses if and to the extent that the payment by
another person of such expenses would result in the disqualification
of such party as a regulated investment company within the meaning
of Section 851 of the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The Company has not made any representation,
warranty or covenant, on behalf of either the Acquired Fund or the
Acquiring Fund, not set forth herein and that this Agreement
constitutes the entire agreement between the parties.
11.2. The representations, warranties and covenants
contained in this Agreement or in any document delivered pursuant
hereto or in connection herewith shall survive the consummation of
the transactions contemplated hereunder. The covenants to be
performed after the Closing and the obligations of each of the
Acquired 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 Company*s
Board of Directors, 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 Company; provided, however, that
following the meeting of the shareholders of the Acquired Fund
called by the Company pursuant to paragraph 5.2 of this Agreement,
no such amendment may have the effect of changing the provisions for
determining the number of Class A, Class B, Class C, Class K and
Class Y Acquiring Fund Shares to be issued to the Class A, Class B,
Class II, Class K and Class Y Acquired Fund Shareholders,
respectively, under this Agreement to the detriment of such
shareholders without their further approval.
14. NOTICES
Any notice, report, statement or demand required or
permitted by any provisions of this Agreement shall be in writing
and shall be given by facsimile, electronic delivery (i.e., e-mail)
personal service or prepaid or certified mail addressed to the
Company, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, attn: Xxxxxxx X.
Xxxxxxxxxxx, in each case with a copy to Dechert LLP, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000, attn: Xxxx X. Xxxxxx.
15. HEADINGS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
15.1. 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.
15.2. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland without regard
to its principles of conflicts of laws.
15.3. 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.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed by its President or Vice President.
THE MUNDER FUNDS, INC., on behalf of its MUNDER LARGE-CAP GROWTH
FUND
By: _/s/ Xxxxxxx X. Shenkenberg_
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Secretary
THE MUNDER FUNDS, INC., on behalf of its MUNDER MULTI-SEASON GROWTH
FUND
By: _/s/ Xxxxx X. Hoglund_
Xxxxx X Xxxxxxx
Vice President
16
226495.2.03
