AGREEMENT AND PLAN OF REORGANIZATION
MUNDER SERIES TRUST
AMERINDO FUNDS INC.
THIS AGREEMENT AND PLAN OF
REORGANIZATION Agreement is made as of
this 18th day of July, 2005, by and between
Munder Series Trust, a Delaware statutory
trust Trust, with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, on behalf of its series,
Munder Internet Fund Acquiring Fund, and
merindo Funds Inc., a Maryland corporation
Acquired Fund Company, with its principal
place of business at x/x Xxx Xxxxxxx Xxxxxx
Xxxxx, Xxxx, XX 00000, on behalf of its series,
Amerindo Technology Fund Acquired Fund.
WHEREAS, each of the Acquired Fund and
the Acquiring Fund is a series of an open-end,
investment company of the management type registered
pursuant to the Investment Company Act of 1940, as
amended 1940 Act;
WHEREAS, this Agreement is intended to be
and is adopted as a plan of reorganization and
liquidation within the meaning of Section 368a1
of the United States Internal Revenue Code of 1986,
as amended Code;
WHEREAS, the contemplated 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 Class A
shares of beneficial interest of the Acquiring
Fund Acquiring Fund Shares corresponding to the
Class D shares of common stock 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, following the Reorganization, the
Acquired Fund Company will deregister as an investment
company in accordance with the rules and regulations
of the Securities and Exchange Commission Commission;
WHEREAS, following the effective date of its
deregistration, the Acquired Fund Company shall
voluntarily dissolve in accordance with Section 3-403
of the Maryland General Corporation Law MGCL;
WHEREAS, the Acquired Fund currently owns
securities that generally are assets of the character
in which the Acquiring Fund is permitted to invest;
WHEREAS, the Board of Trustees of the Trust
Trustees 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 known liabilities of the Acquired
Fund by the Acquiring Fund is in the best interests of
the Acquiring Fund and that the interests of the e
xisting shareholders of the Acquiring Fund would no
t be diluted as a result of this transaction; and
WHEREAS, the Board of Directors of the Acq
uired Fund Company Board of Directors has determined
with respect to the Acquired Fund that the sale,
assignment, conveyance, transfer and delivery of al
l of the property and assets of the Acquired Fund f
or Acquiring Fund Shares and the assumption of known
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;
WHEREAS, the Board of Directors has determined
that the dissolution of the Acquired Fund Company
following the Reorganization is advisable;
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 S KNOWN LIABILITIES AND THE LIQUIDATION
OF THE ACQUIRED FUND AND THE SUBSEQUENT DEREGISTRATION AND
DISSOLUTION OF ACQUIRED FUND COMPANY
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,
Acquired Fund Company, on behalf of the Acquired Fund,
agrees to sell, assign, convey, transfer and deliver all
of its property and assets, as set forth in paragraph
1.2, to the Acquiring Fund, and the Trust, on behalf of
the Acquiring Fund, agrees in exchange therefor: a to
deliver to the Acquired Fund the number of full and
fractional Acquiring Fund Shares corresponding to value
of the Acquired Fund Shares as of the time and date set
forth in paragraph 3.1, determined by dividing the value
of the Acquired Fund s net assets 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 computed
in the manner and as of the time and date set forth in
paragraph 2.2; and b to assume all known 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 Acquired Fund Company
attributable to the Acquired Fund and to be sold, assigned,
conveyed, transferred and delivered to and acquired by the Trust,
on behalf of the Acquiring Fund, shall consist of all assets and
property, 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 property and assets transferred, which rights, stock
dividends, and other securities shall be deemed included in
the property and assets transferred to the Acquiring Fund at
the Closing Date and shall not be separately valued, in which
case any such stock dividends or other distribution that
remains unpaid and/or have not been received by the
Acquired Fund as of the Closing Date shall be included in
the determination of the value of the assets of the
Acquired Fund acquired by the Acquiring Fund.
1.3. The Acquired Fund will make reasonable
efforts to discharge all of its known liabilities
and obligations prior to the Valuation Date and
shall establish any necessary reserves and/or shall
accrue all amounts deemed to be necessary to disc
harge any contingent liability of the Acquired Fun
d that is reasonably expected to become due and pa
e determination of the Acquired Fund as to whether a
ny such reserve and/or accrual of expenses is neces
sary with respect to any contingent liability of t
he Acquired Fund that is reasonably expected to bec
ome due and payable within three years from the
Valuation Date shall be in accordance with accounting
principles generally accepted in the United States of
America GAAP consistently applied, including, in
particular, with the guidance provided in FASB 5.
The Trust, on behalf of the Acquiring Fund, shall
assume all of the known liabilities of the Acquired
Fund, whether accrued or contingent, existing at the
Valuation Date collectively, Liabilities. On or as
soon as practicable prior to the Closing Date, the
Acquired Fund will declare and pay to its shareholders
of record one or more dividends and/or other
distributions so that it will have distributed
substantially all and in no event less than 98
of its investment company taxable income computed
without regard to any deduction for dividends paid
and realized net capital gain after reduction for
any available capital loss carryover, if any, for
the current taxable year through the Closing Date.
1.4. Immediately following the actions
contemplated by paragraph 1.1, the Acquired Fund
Company shall take such actions necessary to
complete the liquidation of the Acquired Fund.
To complete the liquidation, Acquired Fund Company,
on behalf of the Acquired Fund, shall a distribute
to its shareholders of record as of the Closing Date,
as defined in paragraph 3.1 Acquired Fund Shareholders,
on a pro rata basis, the Acquiring Fund Shares received
by Acquired Fund Company, on behalf of the Acquired Fund,
pursuant to paragraph 1.1 and b completely liquidate.
Such distribution and liquidation shall be accomplished,
with respect to the Acquired Fund Shares, by the transfer
of the corresponding 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 Acquiring
Fund Shares to be so credited to the Acquired Fund
Shareholders shall be equal to the aggregate net asset
value of the Acquired Fund Shares owned by Acquired Fund
Shareholders on the Closing Date. All issued and
outstanding Acquired Fund Shares will be canceled
on the books of the Acquired Fund. The Acquiring Fund
shall not issue certificates representing any class of
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.
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 Commission, any state securities commission, and
relevant regulatory authority, is and shall remain the
responsibility of the Acquired Fund Company, on behalf
of the Acquired Fund.
1.7. As promptly as practicable following the
Reorganization, the Acquired Fund Company will take
all necessary action to effect its deregistration as
an investment company in accordance with the rules
and regulations of the Commission and shall subsequently
voluntarily dissolve in accordance with the requirements
of the MGCL.
2. VALUATION
2.1. The value of the Assets shall be determined
as of the time for calculation of the net asset value of
the Acquired Fund as set forth in its then-current
prospectus, and after the declaration of any dividends
by the Acquired Fund, 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
then-current prospectus and statement of additional
information, as supplemented, with respect to the Acquired
Fund and valuation procedures established by Acquired Fund
Company s Board of Directors. All computations of the value
of the Assets shall be made by SEI Investments Global Fund
Services, in its capacity as fund accountant for the
Acquired Fund, and, to the extent required by the Acquired
Fund Company s valuation procedures with respect to any fair
valued securities, by the Board of Directors
of the Acquired Fund Company.
2.2. The net asset value per Acquiring Fund Share
shall be determined as of the time for calculation of the
net asset value of the Acquiring Fund Shares as set forth
in its then-current prospectus on the Valuation Date,
using the valuation procedures set forth in the then-current
prospectus and statement of additional information, as
supplemented, with respect to the Acquiring Fund and the
valuation procedures established by the Trust s Board
of Trustees. All computations of the net asset value per
Acquiring Fund Share shall be made a by State Street Bank
and Trust Company, in its capacity as fund accounting agent
for the Acquiring Fund, or b in the case of securities
subject to fair valuation, by Munder Capital Management
in accordance with the valuation procedures of the Trust
adopted in good faith by the Board of Trustees of the Trust.
2.3. The number of Acquiring Fund Shares to be
issued in exchange for the Assets shall be determined
by dividing the value of the Acquired Fund s net assets,
determined using the same valuation procedures referred to
in paragraph 2.1, by the net asset value of an Acquiring
Fund Share, determined using the same valuation procedures
referred to in paragraph 2.2.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be October 14, 2005,
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 or at such other time and/or place
as the parties may agree.
3.2. Acquired Fund Company shall direct Xxxxx
Brothers Xxxxxxxx & Co., as custodian for the Acquired Fund
Acquired Fund Custodian, to deliver to the Trust, at the
Closing, a certificate of an authorized officer of the
Custodian stating that i the Assets have been delivered
in proper form to the Acquiring Fund as of 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 Acquired Fund
Custodian to State Street Bank and Trust Company, as the
custodian for the Acquiring Fund Acquiring Fund Custodian.
Such presentation shall be made for examination no later
than five 5 business days preceding the Closing Date, and
such certificates and other written instruments shall be
transferred and delivered by the Acquired Fund as of the
Closing Date for the account of the Acquiring Fund duly
endorsed in proper form for transfer in such condition
as to constitute good delivery thereof. Each Acquired Fund s
Assets held in book-entry form with a securities depository,
as defined in Rule 17f-4 of the 1940 Act, shall be transferred
by the Acquired Fund Custodian to the Acquiring Fund Custodian
for the account of the corresponding Acquiring Fund as of the
Closing Date by book entry, in accordance with the customary
practices of the Acquired Fund Custodian and of each such
securities depository. The cash to be transferred by the
Acquired Fund shall be delivered by wire transfer of
federal funds on the Closing Date.
3.3. Acquired Fund Company shall direct the transfer
agent for the Acquired Fund 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
name and address of each Acquired Fund Shareholder and the
number and percentage ownership of the Acquired Fund Shares
owned by each such shareholder immediately prior to the Closing.
The Acquiring Fund shall deliver to the Acting President 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 1.4
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 each party shall deliver to the other party such bills
of sale, checks, assignments, share certificates, if any, receipts
or other documents as the other party or its counsel may
reasonably request.
3.4. In the event that on the Valuation Date with respect
to the Acquired Fund or at the time of calculation of the net
asset value per share of the Acquiring Fund Shares pursuant to
paragraph 2.2 with respect to the Acquiring Fund a the New York
Stock Exchange 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
accurate appraisal of the value of the net assets of the Acquired
Fund or the Acquiring Fund is impracticable in the judgment of the
Board of Trustees of the Trust with respect to the Acquiring Fund
and the Board of Directors of Acquired Fund Company with respect to
the Acquired Fund, the Closing Date shall be postponed until the
first Friday that is also a 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 Trust
in Schedule 4.1 to this Agreement, Acquired Fund Company,
on behalf of the Acquired Fund, represents and warrants to
the Trust as follows:
a The Acquired Fund is duly established as a series of
Acquired Fund Company, which is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Maryland, with power under its
Articles of Incorporation, as amended Charter, to own all
of its Assets and to carry on its business as it is being
conducted as of the date hereof. Acquired Fund Company is
either not required to qualify as a foreign trust or
association in any jurisdiction or has so qualified in any
jurisdiction in which it is required to so qualify.
Acquired Fund Company has all necessary federal, state and
local authorization to carry on its business as now being
conducted and to fulfill the terms of this Agreement, except
as set forth in paragraph 4.1c.
b Acquired Fund 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
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 conforms, and each
prospectus and statement of additional information of
the Acquired Fund used at all times during the three
years prior to the date of this Agreement conformed
at the time of its use, in all material respects to
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 Except as disclosed on Schedule 4.1e, on the Closing
Date, Acquired Fund 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,
convey, transfer and deliver such Assets hereunder free
of any liens or other encumbrances, and upon delivery
and payment for the 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 Company, on behalf of 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 Charter or
by-laws of Acquired Fund Company or of any agreement,
indenture, instrument, contract, lease or other
undertaking to which Acquired Fund Company, 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 Acquired Fund 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 Company, on behalf of the Acquired Fund
other than this Agreement and certain investment
contracts, including options, futures, and forward
contracts as listed on Schedule 4.1, will terminate
without liability to the Acquired Fund on or prior
to the Closing Date. Each contract listed in Schedule
4.1 is a valid, binding and enforceable obligation
of each party thereto assuming due authorization,
execution and delivery by the other party thereto
and the assignment by the Acquired Fund to the
Acquiring Fund of each such contract will not result
in the termination of such contract, any breach or
default thereunder or the imposition of any penalty
thereunder.
h No litigation or administrative proceeding or formal
or informal investigation of or before any governmental
body or court is presently pending or, to best knowledge
and belief of the Acquired Fund, the Acquired Fund Company
and the directors of the Acquired Fund Company who are
not 1 interested persons as defined in Section 2a19 of
the 1940 Act of the Acquired Fund Company or 2
affiliated persons as defined in Section 2a3 of the
1940 Act of the Acquired Fund s former adviser
Independent Directors after reasonable inquiry as set
forth in Schedule 4.1h, threatened against the
Acquired Fund Company, with respect to the Acquired
Fund or any of its properties or assets, or the
Board of Directors of the Acquired Fund Company
acting as members of a board of directors of a fund
and not individually, that, if adversely determined,
would materially and adversely affect its financial
condition or the conduct of its business. The
Acquiring Fund acknowledges its awareness of the
recent publicly disclosed events regarding the
Acquired Fund s former adviser, including but not
limited to the arrest on pending charges of the
two principals of the Acquired Fund s former adviser.
Notwithstanding the foregoing, neither the Acquired
Fund Company, on behalf of the Acquired Fund, nor the
Independent Directors of the Acquired Fund Company 1
knows of any facts involving the Acquired Fund
Company, the Acquired Fund or any of its properties or
assets, nor knows of any actions of the Board of
Directors acting as members of a board of directors of a
fund and not individually that might form the basis
for the institution of any proceedings against the
Acquired Fund Company, the Acquired Fund or any of
its properties or assets or against the Board of
Directors acting as members of a board of directors
of a fund and not individually and 2 to the best
knowledge and belief of the Acquired Fund, the
Acquired Fund Company and the Independent
Directors after reasonable inquiry, none of the
Acquired Fund, the Acquired Fund Company or the
Board of Directors of the Acquired Fund Company
acting as members of a board of directors of a
fund and not individually is a party to or subject
to the provisions of any order, decree or judgment
of any court or governmental body that would
materially and adversely affect the Acquired Fund,
Acquired Fund Company, the Board of Directors of
the Acquired Fund Company acting as members of a
board of directors and not individually or the
business of the Acquired Fund Company or the
Acquired Fund, or the ability of the Acquired
Fund 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 as included in the most recent
Annual Report to Shareholders for the
cquired Fund the Annual Report, have been
audited by Deloitte & Touche LLP,
Independent Registered Public Accounting
Firm, and are in accordance with GAAP
consistently applied, and such statements
a true and correct copy of which has been
furnished to the Trust present fairly, in
all material respects, the financial condition
of the Acquired Fund as of the date of the
most recent Annual Report i.e., October 31,
2004 in accordance with GAAP, and there are
no known contingent, accrued or other
liabilities of the Acquired Fund required
in accordance with GAAP to be reflected on
a balance sheet for the Acquired Fund
including the notes thereto as of the date
of the Annual Report that are not disclosed
therein. The Statement of Assets and
Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of
Investments of the Acquired Fund, as included
or to be included in the most recent unaudited
Semi- Annual Report to shareholders for the
Acquired Fund since the date of the Annual
Report the Semi-Annual Report dated April 30,
2005 are in accordance with GAAP consistently
applied, and such statements a true and correct
copy of which has been or will be furnished to
the Trust present fairly, in all material
respects, the financial condition of the Acquired
Fund as of the date of the Semi- Annual Report
in accordance with GAAP, and all known contingent,
accrued or other liabilities of the Acquired Fund
required in accordance with GAAP to be reflected
on a balance sheet for the Acquired Fund including
the notes thereto as of such date are disclosed
therein.
j Except as disclosed in Schedule 4.1j, since April
30, 2005, there has not been any material adverse
change in the Acquired Fund s financial condition,
assets, liabilities or business, other than changes
occurring in the ordinary course of business, or
any incurrence by the Acquired Fund of indebtedness,
other than the incurrence of indebtedness in the
ordinary course of business in accordance with the
Acquired Fund s investment restrictions. For the
purposes of this subparagraph j, a decline in net
asset value per share of Acquired Fund Shares due
to declines in market values of securities held by
the Acquired Fund, the discharge of Acquired Fund
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 of Acquired Fund Company s knowledge and
belief, 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 and treatment
as a regulated investment company, has elected to be
treated as such, and 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
substantially all of i the excess of x its investment
income excludible from gross income under Section 103
of the Code over y its deductions disallowed under
Sections 265 and 171 of the Code net tax-exempt income,
ii its investment company taxable income computed without
regard to any deduction for dividends paid, and iii any
net capital gain after reduction for any capital loss
carryover as defined in the Code that has accrued through
the Closing Date, and before the Closing Date will have
declared dividends intended to be sufficient to distribute
all of its net tax-exempt income, investment company
taxable income and net capital gain for the period
ending on the Closing Date.
m All issued and outstanding Acquired Fund Shares are, and
on the Closing Date will be, duly authorized and validly
and legally issued and outstanding, fully paid and
non-assessable by Acquired Fund Company and will 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 all applicable federal and state 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
corporate action on the part of the Board of
Directors of Acquired Fund Company acting as
members of a board of directors of a fund and
not individually, and by the approval of the
Acquired Fund s shareholders, as described in
paragraph 8.1, and this Agreement constitutes
a valid and binding obligation of Acquired
Fund 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.
o The combined proxy statement and prospectus
Proxy Statement to be included in the Registration
Statement as defined in paragraph 5.7, insofar as
it relates to information regarding the Acquired
Fund, the Acquired Fund Company or the Board of
Directors of the Acquired Fund Company, 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 that this representation and warranty
shall not apply to statements in or omissions
from the Proxy 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.
The information to be furnished by the Acquired Fund
for use in registration statements and other documents
filed or to be filed with any federal, state or local
\ regulatory authority including the National
Association of Securities Dealers, Inc. NASD,
which may be necessary in connection with the
transactions contemplated hereby, shall be
accurate and complete in all material respects
and shall comply in all material respects with
federal securities and other laws and
regulations thereunder applicable thereto.
4.2. Except as has been fully disclosed to
Acquired Fund Company in Schedule 4.2 to this
Agreement, the Trust, on behalf of the
Acquiring Fund, represents and warrants
to Acquired Fund Company as follows:
a The Acquiring Fund is duly established 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 the power under the Trust s Declaration of
Trust to own all of its properties and assets and
to carry on its business as contemplated by this
Agreement. The Trust is either not required to
qualify as a foreign trust or association in any
jurisdiction or has so qualified in any jurisdiction
in which it is required to so qualify. The Trust has
all necessary federal, state and local authorization
to carry on its business as now being conducted and
to fulfill the terms of this Agreement, except as
set forth in paragraph 4.2c.
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
Acquiring Fund Shares under the 1933 Act will be in full
force and effect as of the Closing Date.
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 during the three
years 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 Trust, on behalf of the Acquiring Fund, is not
engaged currently, and the execution, delivery and
performance of this Agreement will not result, in i a
material violation of the Trust s Declaration of Trust
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 formal or
informal investigation of or before any governmental body
or court is presently pending or, to the Trust s best
knowledge and belief after reasonable inquiry, threatened
against the Trust, with respect to the Acquiring Fund,
any of the Acquiring Fund s properties or assets or the
Board of Trustees of the Trust, that, if adversely
determined, would materially and adversely affect the
Acquiring Fund s financial condition or the conduct of
its business. Neither the Trust, on behalf of the Acquiring
Fund, nor the Board of Trustees of the Trust knows of any
facts that might form the basis for the institution of
such proceedings and neither the Trust, on behalf of the
Acquiring Fund, nor the Board of Trustees of the Trust
is a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body
that would materially and adversely affect the Trust,
the Acquired Fund, the Board of Trustees of the Trust
or the business of the Trust or the Acquiring Fund,
or the ability of the Acquiring Fund 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 as included in the
Annual Report to Shareholders for the Acquiring Fund
dated June 30, 2004, have been audited by Ernst & Young
LLP, Independent Registered Public Accounting Firm, and
are in accordance with GAAP consistently applied, and
such statements a true and correct copy of which has been
furnished to Acquired Fund Company 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, accrued or other
liabilities of the Acquiring Fund required in accordance
to GAAP to be reflected on a balance sheet for the
Acquiring Fund including the notes thereto as of such
date that are not disclosed therein. The Statement of
Assets and Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of Investments of
the Acquiring Fund as included in the unaudited Semi-Annual
Report to Shareholders for the Acquiring Fund dated
December 31, 2004, are in accordance with GAAP
onsistently applied, and such statements a true and
correct copy of which has been furnished to Acquired
Fund Company present fairly, in all material respects,
the financial condition of the Acquiring Fund as of
such date in accordance with GAAP, and all known
contingent, accrued or other liabilities of the
Acquiring Fund required in accordance with GAAP to
be reflected on a balance sheet including the notes
thereto as of such date are disclosed therein. The
Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets, and Schedule
of Investments of the Acquiring Fund as included or
to be included in the Annual Report to Shareholders
for the Acquiring Fund dated June 30, 2005 have been
or will have been audited by Ernst & Young LLP,
Independent Registered Public Accounting Firm, and
are or will be when sent to the Acquiring Fund
shareholders in the regular course in accordance
with GAAP consistently applied, and such statements a
\true and correct copy of which has been or will be
furnished to Acquired Fund Company present or will
present fairly, in all material respects, the
financial condition of the Acquiring Fund as of
such date in accordance with GAAP, and all known
contingent, accrued or other liabilities of the
Acquiring Fund required in accordance with GAAP
to be reflected on a balance sheet for the
Acquiring Fund including the notes thereto as of
such date are or will be disclosed therein.
h Since December 31, 2004, there has not been any
material adverse change in the Acquiring Fund s
financial condition, assets, liabilities or
business, other than changes occurring in the
ordinary course of business, or any incurrence
by the Acquiring Fund of indebtedness, other than
the incurrence of indebtedness in the ordinary
course of business in accordance with the
Acquiring Fund s investment restrictions. For
the purposes of this subparagraph h, a decline
in net asset value per share of Acquiring Fund
Shares due to declines in market values of
ecurities 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 of the Trust s knowledge and
belief, 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 and treatment as a
regulated investment company, has elected to
be treated as such, and has been or will be
eligible to and has computed or will compute
its federal income tax under Section 852 of
the Code.
k All of the issued and outstanding Acquiring
Fund Shares are, and on the Closing Date will
be, duly authorized and validly and legally
issued and outstanding, fully paid and
non-assessable by the Trust and will 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 all 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. All of the
Acquiring Fund Shares to be issued and delivered
to the Acquired Fund, for the account of the
Acquired Fund Shareholders, pursuant to this Agreement
will on the Closing Date have been duly authorized and,
when so issued and delivered, will be duly and validly
and legally issued Acquiring Fund Shares and be fully
paid and non-assessable by the Trust.
l The execution, delivery and performance of this
Agreement, and the transactions contemplated herein,
have been duly authorized by all necessary action on
the part of the Board of Trustees of the Trust, 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 Proxy Statement to be included in the Registration
Statement as defined in paragraph 5.7, insofar as it
relates to the Acquiring Fund, the Trust, the Acquiring
Fund Shares, or the Board of Trustees of the Trust 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 that this
representation and warranty shall not apply to statements
in or omissions from the Proxy 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. The information to be furnished by the Acquiring
Fund for use in registration statements and other documents
filed or to be filed with any federal, state or local regulatory
authority including the NASD, 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.
5. COVENANTS
Acquired Fund Company, on behalf of the Acquired Fund, and
the Trust, on behalf of the Acquiring Fund, respectively,
hereby further covenant as follows:
5.1. The Acquired Fund and the Acquiring Fund each will
operate its business in the ordinary course and shall
comply in all material respects with all applicable laws,
rules and regulations between the date hereof and the
Closing Date, it being understood that such ordinary course
of business will include the declaration and payment of
customary dividends and distributions, and any other
distribution that may be advisable.
5.2. The Acquired Fund Company will a send appropriate
notification to its shareholders of the Acquired Fund
regarding the transactions contemplated by this Agreement
and b call a meeting of the shareholders of the Acquired
Fund to consider and act upon this Agreement and to take
all other action necessary to obtain approval of the
transactions contemplated herein.
5.3. The Acquired Fund covenants that the 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. The Acquired Fund will use its best efforts to
assist the Acquiring Fund in obtaining such information
as the Acquiring Fund reasonably requests concerning
the beneficial ownership of the Acquired Fund Shares.
5.5. Subject to the provisions of this Agreement,
the Acquired Fund covenants to take, or cause to
be taken, all actions, and do or cause to be done,
all things reasonably necessary, proper or
advisable to a accurately reflect in its financial
statements and other reports or documents sent or
to be sent to its shareholders or filed with
regulatory authorities its financial condition
including any known, accrued or other liabilities
and b consummate and make effective the transactions
contemplated by this Agreement.
5.6. Subject to the provisions of this Agreement,
the Acquiring Fund covenants to take, or cause to
be taken, all actions, and do or cause to be done,
all things reasonably necessary, proper or advisable
to a accurately reflect in its financial statements
and other reports or documents sent or to be sent to
its shareholders or filed with regulatory authorities
its financial condition including any known, accrued
or other liabilities and b consummate and make
effective the transactions contemplated by this
Agreement.
5.7. The Trust, on behalf of the Acquiring Fund,
shall prepare and file a Registration Statement
on Form N-14 in compliance with the 1933 Act,
the 1934 Act and the 1940 Act and the rules and
regulations thereunder with respect to the
Reorganization Registration Statement. The
Acquired Fund will provide in a timely manner
to the Trust such information regarding the
Acquired Fund as may be necessary for the
preparation of the Registration Statement.
5.8. Each of the Acquired Fund and the Acquiring
Fund covenant to 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.
5.9. Acquired Fund Company, on behalf of the
Acquired Fund, covenants that it will, from
time to time, as and when requested by the
Trust, 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 Trust,
on behalf of the Acquiring Fund, may deem
necessary or desirable in order to vest in
and confirm a Acquired Fund Company s title
to and possession of the Acquiring Fund Shares
to be delivered hereunder, and b the Trust s
title to and possession of all the Assets, and
otherwise to carry out the intent and purpose
of this Agreement.
5.10. The Acquiring Fund covenants to 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.
5.11. The Acquiring Fund shall not change its
Declaration of Trust, prospectus or statement
of additional information prior to Closing so
as to restrict permitted investments for the
Acquiring Fund prior to Closing, except as
required by the Commission.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIRED FUND
The obligations of Acquired Fund Company, on
behalf of the Acquired Fund, to consummate
the transactions provided for herein shall
be subject, at Acquired Fund Company s
election, to the performance by the Trust,
on behalf of the Acquiring Fund, of all
the obligations to be performed by it
hereunder on or before the Closing Date,
and, in addition thereto, the following
further conditions:
6.1. All representations and warranties of the Trust,
on behalf of the Acquiring Fund, contained in this
Agreement shall be true and correct in all material
respects as of the date hereof and, except as they
may be affected by the transactions contemplated by
this Agreement, as of the Closing Date, with the same
force and effect as if made on and as of the Closing Date.
6.2. The Trust, on behalf of the Acquiring Fund, shall
have 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.
6.3. The Trust shall have executed and delivered an
assumption of the Liabilities and all such other
agreements and instruments as Acquired Fund Company
may reasonably deem necessary or desirable in order
to vest in and confirm a Acquired Fund Company s title
to and possession of the Acquiring Fund Shares to be
delivered hereunder, and b the Trust s assumption of
all of the Liabilities, and otherwise to carry out the
intent and purpose of this Agreement.
6.4. The Trust, on behalf of the Acquiring Fund, shall
have delivered to the Acquired Fund a certificate
executed in the name of the Trust, on behalf of the
Acquiring Fund, by the Trust s President or Vice President
and its Treasurer or Assistant Treasurer, in a form reasonably
satisfactory to Acquired Fund Company and dated as of the
Closing Date, as to the matters set forth in paragraphs 6.1
and 6.2 and as to such other matters as Acquired Fund Company
shall reasonably request.
6.5. The Acquired Fund and the Acquiring Fund shall have
agreed on the number of full and fractional 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 ACQUIRING FUND
The obligations of the Trust, on behalf of the Acquiring Fund,
to consummate the transactions provided for herein shall be subject,
at the Trust s election, to the performance by Acquired Fund
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 further conditions:
7.1. All representations and warranties of Acquired Fund 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. Acquired Fund 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 Acquired Fund Company, on behalf of the Acquired Fund, on
or before the Closing Date.
7.3. Acquired Fund Company shall have delivered to the Acquiring
Fund a statement of the Assets and Liabilities, as of the Closing
Date, including a schedule of investments, certified by the
Treasurer of Acquired Fund Company and a detailed listing of all
known Liabilities as of the Closing Date. Acquired Fund Company
shall have executed and delivered all such assignments and other
instruments of transfer as the Trust may deem necessary or
desirable in order to vest in and confirm a Acquired Fund Company s
title to and possession of the Acquiring Fund Shares to be delivered
hereunder and b the Trust s title to and possession of all the
Assets, and otherwise to carry out the intent and purpose of
this Agreement.
7.4. Acquired Fund Company, on behalf of the Acquired Fund,
shall have delivered to the Trust a certificate executed in
the name of Acquired Fund Company, on behalf of the Acquired
Fund, by Acquired Fund Company s President or Vice President
and its Treasurer or Assistant Treasurer provided that the same
person may not sign in multiple capacities, in a form
reasonably satisfactory to the Trust and dated as of the
Closing Date, as to the matters set forth in paragraphs
7.1 and 7.2 and as to such other matters as the Trust
shall reasonably request.
7.5. The Acquired Fund and the Acquiring Fund shall have
agreed on the number of full and fractional Acquiring
Fund Shares to be issued in connection with the
Reorganization after such number has been calculated
in accordance with paragraph 1.1.
7.6. The Acquired Fund Company shall have provided the
Acquiring Fund with a a copy of all directors and
officers/errors and omissions liability insurance policies
that have been in effect for the five years prior to the
Closing Date and b a copy of a tail insurance policy in an
amount and in a form reasonably acceptable to the Trust.
7.7 Except as listed on Schedule 4.1j, the Acquired Fund
or the Acquired Fund Company shall not have suffered any
individual circumstance or any combination of
circumstances that have had, or are expected to have,
any material adverse effect a on the operations, business,
results of operations, properties, assets or financial
condition of the Acquired Fund or the Acquired Fund Company
or b on the ability of Acquired Fund or the Acquired Fund
Company to consummate the transactions contemplated by
this Agreement. Redemptions made by shareholders in the
normal course shall not be deemed to be material adverse
circumstances for purposes of this Section 7.7.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACQUIRING FUND AND ACQUIRED FUND
If any of the conditions set forth below have not
been satisfied on or before the Closing Date with
respect to Acquired Fund Company, on behalf of the
Acquired Fund, or the Trust, 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. This Agreement and the transactions contemplated
herein shall have been approved by the requisite vote
of the holders of the outstanding shares of the
Acquired Fund in accordance with the provision of the
Charter and by-laws of Acquired Fund Company,
applicable state law and the 1940 Act, which approval
shall include approval of the dissolution of the Acquired
Fund Company under Section 3-403 of the MGCL, and
certified copies of the resolutions evidencing such
approval shall have been delivered to the Acquiring
Fund. Notwithstanding anything herein to the contrary,
neither the Trust nor Acquired Fund Company may waive
the condition 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 Trust s or to
Acquired Fund Company s best knowledge and belief,
threatened before any governmental agency or court
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 Trust or Acquired Fund
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 0000 Xxx.
8.5. The parties shall have received the opinion of
Dechert LLP dated the Closing Date, substantially to
the effect that, based upon certain facts,
assumptions, and representations made by Acquired
Fund Company, on behalf of the Acquired Fund, the
Trust, on behalf of the Acquiring Fund, and their
respective authorized officers, a the transaction
contemplated by this Agreement will constitute a
reorganization within the meaning of Section 368a
of the Code, and the Acquiring Fund and the
Acquired Fund will each be a party to a
reorganization within the meaning of Section 368b
of the Code; b no gain or loss will be recognized
by the Acquiring Fund upon receipt of the Assets
in exchange for the Acquiring Fund Shares and the
assumption by the Acquiring Fund of the Liabilities;
c the basis in the hands of the Acquiring Fund in
the Assets will be the same as the basis of the
Acquired Fund in the Assets immediately prior to
the transfer thereof; d the holding periods of
the Assets in the hands of the Acquiring Fund
will include the periods during which the Assets
were held by the Acquired Fund; e no gain or
loss will be recognized by the Acquired Fund
upon the transfer of the Assets to the
Acquiring Fund in exchange for the Acquiring
Fund Shares and the assumption by the
Acquiring Fund of all of the Liabilities,
or upon the distribution of the Acquiring
Fund Shares by the Acquired Fund to its
shareholders in liquidation; f no gain or
loss will be recognized by the Acquired
Fund shareholders upon the exchange of
their Acquired Fund Shares for the
Acquiring Fund Shares; g the aggregate
basis of the Acquiring Fund Shares that
each Acquired Fund shareholder receives
in connection with the transaction will
be the same as the aggregate basis of his
or her Acquired Fund Shares exchanged therefor;
h an Acquired Fund shareholder s holding period
for his or her Acquiring Fund Shares will be
determined by including the period for which he
or she held the Acquired Fund Shares exchanged
therefore, provide that he or she held such
Acquired Fund Shares as capital assets; and i
the Acquiring Fund will succeed to, and take
into account subject to the conditions and
limitations specified in Sections 381, 382,
383, and 384 of the Code and the Regulations
thereunder the items of the Acquired Fund
described in Section 381c of the Code. The
opinion will not address whether gain or loss
will be recognized with respect to any contracts
subject to Section 1256 of the Code in connection
with the reorganization. The delivery of such
opinion is conditioned upon receipt by Dechert
LLP of representations it shall request of the
Trust and Acquired Fund Company. Notwithstanding
anything herein to the contrary, neither the
Trust nor Acquired Fund Company may waive the
condition set forth in this paragraph 8.5.
8.6. The Trust shall have received the opinion
of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
dated the Closing Date subject to customary
assumptions, qualifications and limitations
and in form and substance reasonably acceptable
to the Trust substantially to the effect that,
based upon certain facts and certifications
made by Acquired Fund Company, on behalf of the
Acquired Fund, and its authorized officers, a
Acquired Fund Company is a corporation duly
incorporated and validly existing under the laws
of the State of Maryland and authorized to
exercise all of the powers recited in its Charter
under the laws of the State of Maryland, and the
Acquired Fund is a series of Acquired Fund Company;
b assuming the due authorization, execution and
deliver of this Agreement by the Trust on behalf
of the Acquiring Fund, this Agreement constitutes
a valid and legally binding obligation of
Acquired Fund Company, on behalf of the Acquired
Fund, enforceable against the Acquired Fund in
accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting creditors
rights and to general equity principles; provided
that such counsel shall be entitled to state that
it expresses no opinion with respect to the
validity, binding effect or enforceability of
any contractual provisions purporting to provide
indemnification of any person for any claims,
damages, liabilities or expenses which may be
limited by any applicable Federal or state
securities laws; c all actions required to be
taken by Acquired Fund Company, on behalf of
the Acquired Fund, to authorize the Agreement
and to effect the transactions contemplated
thereby have been duly authorized by all
necessary action on the part of Acquired Fund
Company; d the execution and delivery by
Acquired Fund Company of this Agreement did
not, and the performance by Acquired Fund Company,
on behalf of the Acquired Fund, of its obligations
under this Agreement will not, violate Acquired
Fund Company s Charter or by-laws; provided,
however, that such counsel shall be entitled to
state that it expresses no opinion with respect
to Federal or state securities laws, other antifraud
laws and fraudulent transfer laws; and provided,
further, that insofar as the performance by Acquired
Fund Company, on behalf of the Acquired Fund, of its
obligations under this Agreement is concerned, such
counsel shall be entitled to state that it expresses
no opinion as to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar
laws of general applicability relating to or
affecting creditors rights and to general equity
principles; e to the knowledge of such counsel,
no consent, approval, authorization or order of
any court or governmental authority is required for
the consummation by Acquired Fund, on behalf of
the Acquired Fund, of the transactions contemplated
by this Agreement, except such as have been obtained
under the 1933 Act, the 1934 Act, the 1940 Act and
state securities laws; f to the best knowledge and
belief of such counsel, no litigation or
administrative proceeding or investigation of or
before any court or governmental body is presently
pending or threatened against Acquired Fund Company,
with respect to the Acquired Fund, the Acquired Fund,
the Board of Directors of the Acquired Fund Company
acting as members of a board of directors of a fund
and not individually or any of the properties or
Assets of the Acquired Fund Company or the Acquired
Fund, that, if adversely determined, would materially
and adversely affect the financial condition or the
conduct of the business of the Acquired Fund Company
or Acquired Fund; and g to the best knowledge and
belief of such counsel, there are no facts that
might form the basis for the institution of such
proceedings against Acquired Fund Company, with
respect to the Acquired Fund, the Acquired Fund,
the Board of Directors of the Acquired Fund Company
acting as members of a board of directors of a
fund and not individually and no such person or
entity is a party to or subject to the provisions
of any order, decree or judgment of any court or
governmental body that would materially and adversely
affect the business of the Acquired Company Fund or
the Acquired Fund or the ability of the Acquired Fund
to consummate the transactions herein contemplated.
With respect to all matters of Maryland law, such
counsel shall be entitled to state that, with the
approval of the Acquiring Fund, they have relied
upon the opinion of Maryland counsel, and that its
opinion is subject to the same assumptions,
qualifications and limitations with respect to
such matters as are contained in the opinion of
Maryland counsel. Such opinion also shall include
such other matters incident to the transactions
contemplated by this Agreement as the Acquiring
Fund may reasonably request.
8.7. Acquired Fund Company shall have received
the opinion of Dechert LLP dated the Closing
Date subject to customary assumptions,
qualifications and limitations and in form
and substance reasonably acceptable to
Acquired Fund Company substantially to the
effect that, based upon certain facts and
certifications made by the Trust, on behalf
of the Acquiring Fund, and its authorized
officers, a the Trust is a statutory trust
duly organized and validly existing under
the laws of the State of Delaware and
authorized to exercise all of the powers
recited in its Declaration of Trust under
the laws of the State of Delaware, and the
Acquiring Fund is a series of the Trust; b
the Acquiring Fund Shares are duly authorized
and, upon delivery to Acquired Fund Company,
on behalf of the Acquired Fund pursuant to
this Agreement, will be validly issued, fully
paid and non-assessable by the Trust, except
to the extent that shareholders may be held
personally liable for the obligations of the
Trust and the Acquiring Fund under the laws of
the State of Delaware; c assuming the due
uthorization, execution and deliver of this
Agreement by Acquired Fund Company on behalf
of the Acquired Fund, this Agreement constitutes
a valid and legally binding obligation of the Trust,
on behalf of the Acquiring Fund, enforceable
against the Acquiring Fund in accordance with its
terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium
and similar laws of general applicability
relating to or affecting creditors rights
and to general equity principles; provided
that such counsel shall be entitled to state
that it expresses no opinion with respect to
the validity, binding effect or enforceability
of any contractual provisions purporting to
provide indemnification of any person for any
claims, damages, liabilities or expenses which
may be limited by any applicable federal or state
securities laws; d all actions required to be taken
by the Trust, on behalf of the Acquiring Fund,
to authorize the Agreement and to effect the
transactions contemplated thereby have been duly
authorized by all necessary action on the part of
the Trust; e the execution and delivery by the
Trust of this Agreement did not, and the
performance by the Trust, on behalf of the
Acquiring Fund, of its obligations under the
greement will not, violate the Trust s Declaration
of Trust or by-laws; provided, however, that such
counsel shall be entitled to state that it expresses
no opinion with respect to federal or state
securities laws, other antifraud laws and fraudulent
transfer laws; and provided, further, that insofar
as the performance by the Trust, on behalf of the
Acquiring Fund, of its obligations under the
Agreement is concerned, such counsel shall be entitled
to state that it expresses no opinion as to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors rights and to
general equity principles; and f to the best knowledge
and belief of such counsel, no consent, approval,
authorization or order of any court or governmental
authority is required for the consummation by the
Trust, on behalf of the Acquiring Fund, of the
transactions contemplated by this Agreement, except
such as have been obtained under the 1933 Act, the
1934 Act, the 1940 Act and state securities laws.
Such opinion also shall include such other matters
incident to the transactions contemplated by this
Agreement as the Acquired Fund may reasonably request.
8.8. At the time of execution of this Agreement,
the Trust shall have received from Deloitte & Touche
LLP, Independent Registered Public Accounting Firm,
a letter, dated such date, in form and substance
satisfactory to the Trust, to the effect that:
a they are the independent registered public
accounting firm for the Acquired Fund within
the meaning of Section 2 of the
Xxxxxxxx-Xxxxx Act of 2002; and
b in their opinion, the financial statements
examined by them and included or to be included
in the Registration Statement comply as to form
in all material respects with the accounting
requirements of the federal securities laws
applicable to the financial statements of
registered open-end management investment
companies.
8.9. Prior to the effective date of the
Registration Statement and the mailing of
the Proxy Statement to shareholders of the
Acquired Fund, counsel to the Acquired Fund
Company, Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx
\Xxxxxx LLP, shall provide a oral report to
counsel to the Trust, Dechert LLP, and counsel
to the Trustees of the Trust who are not
interested persons as defined in Section 2a19
of the 1940 Act of the Trust, Xxxxxx Xxxxx &
Xxxxxxx LLP, regarding the findings and/or
results of a forensic investigation of the
Acquired Fund conducted by Deloitte & Touche
LLP, Independent Registered Public Accounting
Firm, for the Audit Committee of the Acquired
Fund in accordance with an engagement letter
dated June 9, 2005. Such oral report shall reflect
accurately and completely, in all material
respects, the oral findings and/or results
presented to the Audit Committee of the
Acquired Fund by Deloitte & Touche LLP and
counsel to the Acquired Fund Company will
make a representation in writing to that
effect.
8.10. The Assets shall not include any assets
that the Acquiring Fund, by reason of limitations
contained in its Declaration of Trust, by-laws or
of investment restrictions disclosed in its
current prospectus and statement of additional
information, as supplemented, in effect on the
Closing Date, may not properly acquire.
9. INDEMNIFICATION
9.1. The Trust, out of the Acquiring Fund s
assets and property including any amounts
paid to the Acquiring Fund pursuant to any
applicable liability insurance policies or
indemnification agreements agrees to indemnify
and hold harmless the Acquired Fund Company
and its Directors and officers and 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 Company and its
Directors or officers, or 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 a
any breach by the Trust, Acquiring Fund or the
Board of Trustees of the Trust of any of the
representations, warranties, covenants or
agreements set forth in this Agreement or b
any act, error, omission, neglect, misstatement,
materially misleading statement, breach of duty
or other act wrongfully done or attempted to be
committed by the Trust, the Acquiring Fund or
the Trustees, officers or employees of the
Acquiring Fund prior to the Closing Date
pertaining to the Acquiring Fund s representations,
warranties, covenants or agreements set forth in
this Agreement, provided that such indemnification
by the Trust or the Acquiring Fund is not a in
violation of any applicable law or b otherwise
prohibited as a result of any applicable order
or decree issued by any governing regulatory
authority or court of competent jurisdiction.
9.2. Acquired Fund Company, out of the Acquired
Fund s assets and property including any amounts
paid to the Acquired Fund Company, Acquired
Fund or the Board of Directors of the Acquired
Fund Company pursuant to any applicable
liability insurance policies or indemnification
agreements but excluding payments made to the
Independent Directors under applicable
liability insurance policies agrees to
indemnify and hold harmless the Trust, its
Trustees and officers and 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 Trust, its Trustees or officers,
or 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 a any breach by
the Acquired Fund Company, the Acquired Fund
or its Board of Directors acting as members
of a board of directors of a fund and not
individually of any of the representations,
warranties, covenants or agreements set forth
in this Agreement or b any act, error, omission,
neglect, misstatement, materially misleading
statement, breach of duty or other act
wrongfully done or attempted to be committed
prior to the Closing Date by the Acquired
Fund Company, the Acquired Fund or the Board
of Directors acting as members of a board of
directors of a fund and not individually,
current officers or employees of the Acquired
Fund Company pertaining to Acquired Fund
Company s and Acquired Fund s representations,
warranties, covenants or agreements, as set
forth in this Agreement, provided that such
indemnification by Acquired Fund Company or
the Acquired Fund is not a in violation of
any applicable law or b otherwise prohibited
as a result of any applicable order or decree
issued by any governing regulatory authority
or court of competent jurisdiction.
10. BROKERAGE FEES AND EXPENSES
10.1. The Trust, on behalf of the Acquiring Fund,
and Acquired Fund Company, on behalf of the
Acquired Fund, represent and warrant to each other
that there are no brokers or finders entitled to
receive any payments in connection with the
transactions provided for herein.
10.2. Except as provided below, the expenses relating to the
Reorganization will be split between the Acquired Fund and
Munder Capital Management with the Acquired Fund paying
40% of such expenses and Munder Capital Management paying
60% of such expenses. Notwithstanding the foregoing, a
the fees and expenses charged by Dechert LLP shall be
borne solely by Munder Capital Management, b the fees
and expenses of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx
LLP and counsel to the Independent Directors shall be
borne solely by the Acquired Fund, and c in no event
will Munder Capital Management be obligated to pay fees
expenses relating to the Reorganization excluding those
of Dechert LLP in excess of seventy-five thousand dollars
$75,000. 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,
preparation and filing of the Registration Statement
and printing and distribution of the Proxy Statement,
legal fees, accounting fees, securities registration
fees, and expenses of holding a shareholders meeting
pursuant to paragraph 5.2. Notwithstanding any of the
foregoing, expenses will in any event be paid by the
party directly incurring such expenses if and to the
extent that the payment by another person of such expenses
would result in the disqualification of such party as a
regulated investment company within the
meaning of Section 851 of the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. The Trust and Acquired Fund Company agree that neither
party has made any representation, warranty or covenant, on
behalf of either the Acquiring Fund or the Acquired Fund,
respectively, 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 Section 9 shall survive the Closing. Notwithstanding
the above, no representation, warranty or covenant contained
in this Agreement shall survive longer than the period of
the tail insurance policy required by Section 7.6.
12. TERMINATION
This Agreement may also be terminated and the transactions
contemplated hereby may be abandoned at any
time prior to the Closing Date:
a by mutual written agreement of the parties;
b by the Acquired Fund Company by written notice to the
Trust if any of the conditions set forth in Section 6
shall have become incapable of fulfillment, and shall
not have been waived by the Acquired Fund Company; or
c by the Trust by written notice to the Acquired Fund
Company if any of the conditions set forth in Section 7
shall have become incapable of fulfillment, and shall
not have been waived by the Trust.
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 Acquired Fund Company and the Trust.
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., email personal service or
prepaid or certified mail addressed as follows:
If to the Trust, at the address of the Trust set forth
in the preamble to this Agreement, in each case to the
attention of Xxxxxxx X. Xxxxxxxxxxx and with a copy
to Dechert LLP, 0000 X Xxxxxx, XX, Xxxxxxxxxx,
XX 00000, attn.: Xxxx X. Xxxxxx;
If to Acquired Fund Company, at the address of Acquired
Fund Company set forth in the preamble to this Agreement,
in each case to the attention of Xxxx Xxxxx,
Acting President of the Acquired Fund Company and with
a copy to Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attn: Xxxx X. Xxxxxx.
15. HEADINGS; GOVERNING LAW; SEVERABILITY; ASSIGNMENT;
LIMITATION OF LIABILITY; RULE 145
s15.1. 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 Delaware
without regard to its principles of conflicts of laws.
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.
15.3. The obligations of the Trust and the Acquiring Fund
entered into in the name or on behalf thereof by any of
the Trustees, officers, employees or agents are made not
individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or
shareholders of the Trust or the Acquiring Fund personally,
but bind only the assets of the Trust and all persons dealing
with any series or fund of the Trust, such as the Acquired
Fund, must look solely to the assets of the Trust belonging
to such series or fund for the enforcement of any claims
against the Trust.
15.4. Pursuant to Rule 145 under the 1933 Act,
the Acquired Fund will, in connection with the
issuance of any Acquiring Fund Shares to any person
who at the time of the transaction contemplated hereby
is deemed to be an affiliate of a party to the transaction
pursuant to Rule 145c, cause to be affixed upon the
certificates issued to such person if any a legend as follows:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE
INTERNET FUND OR ITS PRINCIPAL UNDERWRITER UNLESS
i A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ii IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY
TO MUNDER INTERNET FUND, SUCH REGISTRATION IS NOT REQUIRED;
and, further, the Acquired Fund will issue stop
transfer instructions to its transfer agent with
respect to such Acquired Fund Shares.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto
has caused this Agreement to be executed by
its President or any officer.
MUNDER SERIES TRUST
AMERINDO FUNDS INC.
on behalf of its series,
on behalf of its series,
Munder Internet Fund
Amerindo Technology Fund
By:
By:
Name: Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxx
Title:Vice President and Secretary
Title: Acting President
With respect to paragraph 10.2 of
this Agreement, accepted and acknowledged by:
MUNDER CAPITAL MANAGEMENT
By:
Name: Xxxxx X. Xxxxxxx
Title: Managing Director and
Chief Administrative Officer
