MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (Agreement) is
made as of this 1st day of January, 2010, by Munder Series
Trust, a Delaware statutory trust (MST), with its principal
place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, on behalf of the Munder Growth Opportunities Fund
(Acquiring Fund), a separate series of MST, and the Munder
Technology Fund (Acquired Fund), also a separate series of MST.
This Agreement is intended to be and is adopted as a plan of
reorganization and liquidation within the meaning of Section
368(a)(1) of the United States Internal Revenue Code of 1986,
as amended (Code). The reorganization and liquidation will
consist of (1) the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired Fund
to the Acquiring Fund in exchange solely for shares of beneficial
interest of Class A, B, C and Y shares of the Acquiring Fund
(Acquiring Fund Shares) corresponding to the classes of outstanding
shares of beneficial interest of the Acquired Fund (Acquired Fund
Shares), as described herein, (2) the assumption by the Acquiring
Fund of all liabilities of the Acquired Fund, and (3) the distribution
of the Acquiring Fund Shares to the shareholders of the Acquired Fund
in complete liquidation of the Acquired Fund, as provided herein
(Reorganization), all upon the terms and conditions hereinafter
set forth in this Agreement.
WHEREAS, the Acquired Fund and the Acquiring Fund are each a series of
MST, a registered investment company classified as a management
investment company of the open-end type under the Investment Company
Act of 1940, as amended (1940 Act), and the Acquired Fund owns
securities that generally are assets of the character in which
the Acquiring Fund is permitted to invest;
WHEREAS, the Trustees of MST have determined, with respect to the
Acquiring Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired
Fund for Acquiring Fund Shares and the assumption of all liabilities
of the Acquired Fund by the Acquiring Fund is in the best interests
of the Acquiring Fund and that the interests of the existing
shareholders of the Acquiring Fund would not be diluted as a result
of this transaction; and
WHEREAS, the Trustees of MST also have determined, with respect to
the Acquired Fund, that the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired Fund
for Acquiring Fund Shares and the assumption of all liabilities of
the Acquired Fund by the Acquiring Fund is in the best interests of
the Acquired Fund and that the interests of the existing shareholders
of the Acquired Fund would not be diluted as a result of this
transaction;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE ACQUIRING FUND IN
EXCHANGE FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL ACQUIRED
FUND LIABILITIES AND THE LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the requisite approval by 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 sell, assign, convey, transfer
and deliver all of the property and assets of the Acquired Fund, as
set forth in paragraph 1.2, to the Acquiring Fund, and the Acquiring
Fund agrees in exchange therefore: (a) to deliver to the Acquired
Fund the number of full and fractional Class A, B, C and Y Acquiring
Fund Shares determined by dividing the value of the Acquired Funds
net assets with respect to each corresponding class of Acquired Fund
Shares, computed in the manner and as of the time and date set forth
in paragraph 2.1, by the net asset value of one Acquiring Fund Share
of the corresponding class, computed in the manner and as of the time
and date set forth in paragraph 2.2; and (b) to assume all liabilities
of the Acquired Fund, as set forth in paragraph 1.3. Such transactions
shall take place on the date of the closing provided for in paragraph
3.1 (Closing Date).
1.2. The property and assets of MST attributable to the Acquired
Fund to be sold, assigned, conveyed transferred and delivered to and
acquired by the Acquiring Fund shall consist of all property
and assets, including, without limitation, all rights, cash,
securities, commodities and futures interests and dividends or
interests receivable that are owned by the Acquired Fund and any
deferred or prepaid expenses shown as an asset on the books of the
Acquired Fund on the Valuation Date as defined in paragraph 2.1
(collectively, Assets). The Acquired Fund will sell, assign, convey,
transfer and deliver to the Acquiring Fund any rights,
stock dividends, or other securities, if any, received by the Acquired
Fund after the Closing Date as stock dividends or other distributions
on or with respect to the Assets transferred, which rights, stock
dividends, and other securities shall be deemed included in the Assets
transferred to the Acquiring Fund at the Closing Date and shall not
be separately valued, in which case any such stock dividends or other
distribution that remain unpaid and/or have not been received by the
Acquired Fund as of the Closing Date shall be included in the
determination of the value of the Assets of the Acquired Fund acquired
by the Acquiring Fund.
1.3. The Acquired Fund will make reasonable efforts to discharge all
of its known liabilities and obligations prior to the Valuation Date.
The Acquiring Fund shall assume all of the liabilities of the Acquired
Fund, whether accrued or contingent, known or unknown, existing at
the Valuation Date (collectively, Liabilities). On or as soon as
practicable prior to the Closing Date, the Acquired Fund will declare
and pay to its shareholders of record one or more dividends and/or other
distributions so that it will have distributed substantially all (and in
no event less than 98%) of its investment company taxable income
(computed without regard to any deduction for dividends paid)
and realized net capital gain (after reduction for any available
capital loss carryover), if any, for the current taxable year
through the Closing Date.
1.4. Immediately following the actions contemplated by
paragraph 1.1, MST shall take such actions necessary to complete the
liquidation of the Acquired Fund. To complete the liquidation, MST,
on behalf of the Acquired Fund, shall (a) distribute to the Acquired
Funds shareholders of record with respect to each class of its shares
as of the Closing as defined in paragraph 3.1 (Acquired Fund
Shareholders), on a pro rata basis within that class, the Acquiring
Fund Shares of the corresponding class received by the
Acquired Fund pursuant to paragraph 1.1, and (b) completely
liquidate. Such distribution
and liquidation will be accomplished, with respect to each class of
the Acquired Funds shares, by the transfer of the Acquiring Fund Shares
then credited to the account of the Acquired Fund on the books of the
Acquiring Fund to open accounts on the share records of the Acquiring
Fund in the names of the Acquired Fund Shareholders. The aggregate net
asset value of Class A, B, C and Y Acquiring Fund Shares to be so
credited to Class A, B, C and Y Acquired Fund Shareholders,
respectively, shall, with respect to each class, be equal to the
aggregate net asset value of the Acquired Fund Shares of the
corresponding class owned by Acquired Fund Shareholders on the
Closing Date. All issued and outstanding Acquired Fund Shares will
simultaneously be canceled on the books of the Acquired Fund.
The Acquiring Fund will not issue certificates representing
the Class A, B, C and Y Acquiring Fund Shares in connection with
the Reorganization.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of
the Acquiring Funds Transfer Agent, as defined in paragraph 3.3 hereof.
1.6. Any reporting responsibility of the Acquired Fund, including,
but not limited to, the responsibility for filing regulatory reports,
tax returns, or other documents with the Securities and Exchange
Commission (Commission), any state securities commission, and any
federal, state or local tax authorities or any other relevant
regulatory authority, is and shall remain the responsibility of the
Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be the value of such Assets
as of the close of business of the New York Stock Exchange and after the
declaration of any dividends on the Closing Date (such time and date
being also referred to herein as the Valuation Date), computed using the
valuation procedures set forth in the Acquired Funds then-current
prospectus and statement of additional information, each as may be
supplemented, and valuation procedures established by MSTs Board
of Trustees.
2.2. The net asset value of each Class A, B, C and Y Acquiring Fund
Share shall be the net asset value per share computed with respect to
that class as of the Valuation Date, computed using the valuation
procedures set forth in the Acquiring Funds then-current prospectus
and statement of additional information, each as may be supplemented,
and valuation procedures established by MSTs Board of Trustees.
2.3. The number of the Class A, B, C and Y Acquiring Fund Shares to
be issued (including fractional shares, if any) in exchange for the
Acquired Funds Assets shall be determined with respect to each such
class by dividing the value of the net assets with respect to the A,
B, C and Y Acquired Fund Shares, as the case may be, determined using
the same valuation procedures referred to in paragraph 2.1, by the
net asset value of a corresponding Acquiring Fund Share, determined
using the same valuation procedures referred to in paragraph 2.2.
2.4. All computations of value shall be made by State Street Bank
and Trust Company, in its capacity as sub-administrator for MST, and
shall be subject to confirmation by Munder Capital Management (MCM),
MSTs administrator.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be March 5, 2010, or such other date
as the parties may agree. All acts taking place at the closing of
the transactions provided for in this Agreement (Closing) shall be
deemed to take place simultaneously as of the close of business on the
Closing Date unless otherwise agreed to by the parties. The close of
business on the Closing Date shall be as of 4:00 p.m., Eastern Time.
The Closing shall be held at the offices of MST or at such other
time and/or place as the parties may agree.
3.2. MST shall direct State Street Bank and Trust Company,
as custodian for the Acquired Fund (Custodian), to deliver to MST at
the Closing a certificate of an authorized officer of the Custodian
stating that (a) the Assets of the Acquired Fund have been delivered
in proper form to the Acquiring Fund within two business days prior to
or on the closing date and (b) State Street has paid such amouhts
or set aside such amounts necessary for payment, as it has been
instructed by an authorized person of the funds under the custody
Agreement. The Acquired Funds portfolio securities represented by
a certificate or other written instrument shall be presented by the
Custodian to those persons at the Custodian who have primary
responsibility for the safekeeping of the assets of the Acquiring Fund,
as the Custodian also serves as the custodian for the Acquiring
Fund. Such presentation shall be made for examination no later
than five business days preceding the Closing Date, and such
certificates and other written instruments shall be transferred and
delivered by the Acquired Fund as of the Closing Date for the account
of the Acquiring Fund duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. The Custodian shall
deliver to those persons at the Custodian who have
primary responsibility for the safekeeping of the assets
of the Acquiring Fund as of the
Closing Date by book entry, in accordance with the customary practices
of the Custodian and of each securities depository, as defined in
Rule 17f-4 under the 1940 Act, in which the Acquired Funds Assets are
deposited, the Acquired Funds Assets deposited with such depositories.
The cash to be transferred by the Acquired Fund shall
be delivered by wire transfer of Federal funds on the Closing Date.
3.3. MST shall direct PNC Global Servicing Inc., in its capacity as
transfer agent for MST (Transfer Agent), to deliver to MST at the Closing
a certificate of an authorized officer of the Transfer Agent
stating that its records contain the names and addresses of each
Acquired Fund Shareholder and the number and percentage ownership of
outstanding Class A, B, C and Y shares owned by each such shareholder
immediately prior to the Closing. The Secretary of MST shall
confirm that (a) the appropriate number of Acquiring Fund Shares have
been credited to the Acquired Funds account on the books of the
Acquiring Fund pursuant to paragraph 1.1 prior to the actions
contemplated by paragraph 1.4, and (b) the appropriate number of
Acquiring Fund Shares have been credited to the accounts of the
Acquired Fund Shareholders on the books of the Acquiring Fund pursuant
to paragraph 1.4. At the Closing MST shall execute such bills
of sale, checks, assignments, share certificates, if any, receipts or
other documents as necessary to effect the Reorganization.
3.4. In the event that on the Valuation Date (a) the New York Stock
Exchange or another primary trading market for portfolio securities of
the Acquiring Fund or the Acquired Fund (each, an Exchange) shall be
closed to trading or trading thereupon shall be restricted, or (b)
trading or the reporting of trading on such Exchange or elsewhere shall
be disrupted so that, in the judgment of the Board of Trustees of MST,
accurate appraisal of the value of the net assets of the Acquiring
Fund or the Acquired Fund is impracticable, the Closing Date shall
be postponed until the first business day practicable
after the day when trading shall have been fully resumed and
reporting shall have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the Acquiring
Fund prior to the date of this Agreement in a written instrument
executed by an officer of MST, MST, on behalf of the Acquired Fund,
represents and warrants to the Acquiring Fund as follows:
(a) The Acquired Fund is duly organized as series
of MST, which is a statutory trust duly organized,
validly existing and in good standing under the laws
of the State of Delaware, with power under MSTs
Declaration of Trust, as amended from time to time
(Declaration), to own all of its Assets and to
carry on its business as it is now being conducted;
(b) MST is a registered investment company classified as a
management company of the open-end type, and its
registration with the Commission as an investment
company under the 1940 Act, and the registration of
the Class A, B, C and Y Acquired Fund Shares under
the Securities Act of 1933, as amended (1933 Act),
is in full force and effect;
(c) No consent, approval, authorization, or order of any
court or governmental authority is required for the
consummation by the Acquired Fund of the transactions
contemplated herein, except such as may be required
under the 1933 Act, the Securities Exchange Act of 1934,
as amended (1934 Act), the 1940 Act and state securities
laws;
(d) The current prospectus and statement of additional
information of the Acquired Fund and each prospectus and
statement of additional information of the Acquired
Fund used at all times prior to the date of this
Agreement conforms or conformed at the time of its use
in all material respects to the applicable requirements
of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does
not or did not at the time of its use include any
untrue statement of a material fact or omit to
state any material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they
were made, not materially misleading;
(e) On the Valuation Date, MST, on behalf of the Acquired Fund,
will have good and marketable title to the Assets of
the Acquired Fund and full right, power, and authority
to sell, assign, convey, transfer and deliver
such Assets hereunder free of any liens or other
encumbrances, and upon delivery and payment for such
Assets, MST, on behalf of the Acquiring Fund, will
acquire good and marketable title thereto, subject
to no restrictions on the full transfer thereof,
including such restrictions as might arise under
the 1933 Act;
(f) The Acquired Fund is not engaged currently, and the
execution, delivery and performance of this Agreement
will not result, in (i) a material violation of MSTs
Declaration or By Laws or of any agreement, indenture,
instrument, contract, lease or other
undertaking to which MST, on behalf of the Acquired
Fund, is a party or by which it is bound, or (ii)
the acceleration of any material obligation, or the
imposition of any material penalty,
under any agreement, indenture, instrument, contract,
lease, judgment or decree to which MST, on behalf of
the Acquired Fund, is a party or by which it is bound;
(g) All material contracts or other commitments of
the Acquired Fund (other than this Agreement and
certain investment contracts including options,
futures, and forward contracts) will terminate
without liability to the Acquired Fund on or prior
to the Closing Date;
(h) No litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or, to MSTs knowledge,
threatened against MST, with respect to the Acquired
Fund or any of its properties or Assets, that, if
adversely determined, would materially and adversely
affect its financial condition or the conduct of its
business. MST, on behalf of the Acquired Fund, knows
of no facts which might form the basis for the
institution of such proceedings and is not a party
to or subject to the provisions of any
order, decree or judgment of any court or
governmental body which materially and adversely
affects its business or its ability to consummate the
transactions herein contemplated;
(i) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets, and Schedule of
Investments of the Acquired Fund at June 30, 2009
have been audited by Ernst & Young LLP, Independent
Registered Public Accounting Firm, and are in
accordance with accounting principles generally accepted
in the United States of America (GAAP)
consistently applied, and such statements present
fairly, in all material respects, the financial
condition of the Acquired Fund as of such date in
accordance with GAAP, and there are no known
contingent liabilities of the Acquired Fund required
to be reflected on a balance sheet (including the notes
thereto) in accordance with
GAAP as of such date not disclosed therein;
(j) Since June 30, 2009, there has not been any
material adverse change in the Acquired Funds
financial condition, Assets, liabilities or
business, other than changes occurring in the
ordinary course of business,
or any incurrence by the Acquired Fund of
indebtedness other than in the ordinary course
in accordance with the Acquired Funds investment
restrictions. For the purposes of this subparagraph
(j), a decline in net asset value per share of
Acquired Fund Shares due to declines
in market values of securities held by the Acquired
Fund, the discharge of the Acquired Funds
liabilities, or the redemption of Acquired Fund Shares
by shareholders of the Acquired Fund shall not
constitute a material adverse change;
(k) On the Closing Date, all federal and other tax
returns, dividend reporting forms,
and other tax-related reports of the Acquired
Fund required by law to have been filed by such
date (including any extensions) shall have been
filed and are or will be correct in all material
respects, and all federal and other taxes shown
as due or required to be shown as due on said
returns and reports shall have been paid or provision
shall have been made for the payment thereof and,
to the best knowledge of MST, no such return is
currently under audit and no assessment has
been asserted with respect to such returns;
(l) For each taxable year of its operation (including
the taxable year ending on the Closing Date),
the Acquired Fund has met (or will meet) the
requirements of Subchapter M of the Code for
qualification as a regulated investment company,
has been (or will be) eligible to and has
computed (or will compute) its federal income
tax under Section 852 of the Code, and will
have distributed all of its investment company
taxable income (computed without regard to any
deduction for dividends paid) and net capital
gain (as defined in the Code) that has accrued
through the Closing Date, and before the Closing
Date will have declared dividends sufficient to
distribute all of its investment company taxable
income (computed without regard to any deduction
for dividends paid) and net capital gain
(after reduction for any available capital
loss carryover) for the period ending on
the Closing Date;
(m) All issued and outstanding Acquired Fund Shares
are, and on the Closing Date will be, duly authorized
and validly issued and outstanding, fully paid and
non-assessable by MST and have been offered and sold
in every state, territory and the District of
Columbia in compliance in all material respects with
applicable registration requirements of the 1933 Act
and other securities laws.
All of the issued and outstanding Acquired Fund Shares
will, at the time of Closing, be held by the persons
and in the amounts set forth in the records of the
Transfer Agent, on behalf of the Acquired Fund, as
provided in paragraph 3.3. The Acquired Fund does
not have outstanding any options, warrants or other
rights to subscribe for or purchase any of the Acquired
Fund Shares, nor is there outstanding any
security convertible into any of the Acquired Fund
Shares;
(n) The execution, delivery and performance of this Agreement
and the transactions contemplated herein have been duly
authorized by all necessary action, if any, on the part
of the Trustees of MST, on behalf of the Acquired Fund,
and by the approval of the Acquired Funds shareholders,
as described in paragraph 8.1, and this Agreement
constitutes a valid and binding obligation of MST, on
behalf of the Acquired Fund, enforceable in accordance
with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors
rights and to general equity principles; and
(o) The information to be furnished by the Acquired Fund
for use in the Registration Statement (as defined
in paragraph 5.5) or any other documents filed or to be
filed with any federal, state or local regulatory
authority (including the Financial Industry
Regulatory Authority, Inc.), which may be
necessary in connection with the transactions
contemplated hereby, shall be accurate and complete
in all material respects and shall comply in all
material respects with federal securities and other
laws and regulations thereunder applicable thereto.
4.2. Except as has been fully disclosed to the Acquired Fund prior
to the date of this Agreement in a written instrument
executed by an officer of MST, MST, on behalf of the Acquiring
Fund, represents and warrants to the Acquired Fund as follows:
(a) The Acquiring Fund is duly organized as a series of
MST, which is a statutory trust duly organized,
validly existing, and in good standing under the
laws of the State of Delaware, with power under MSTs
Declaration to own all of its properties and assets
and to carry on its business as it is now being
conducted;
(b) MST is a registered investment company classified as
a management company of the open-end type, and its
registration with the Commission as an investment
company under the 1940 Act and the registration of the
Class A, B, C and Y Acquiring Fund Shares under the
1933 Act, is in full force and effect;
(c) No consent, approval, authorization, or order of any
court or governmental authority is required for the
consummation by the Acquiring Fund of the transactions
contemplated herein, except such as may be required
under the 1933 Act, the 1934 Act, the 1940 Act
and state securities laws;
(d) The current prospectus and statement of additional
information of the Acquiring Fund and each prospectus
and statement of additional information of the
Acquiring Fund used at all times prior to the date
of this Agreement conforms or conformed at the time
of its use in all material respects to the applicable
requirements of the 1933 Act and the 1940 Act and the
rules and regulations of the Commission thereunder and
does not or did not at the time of its use include any
untrue statement of a material fact or omit to
state any material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances under which they were
made, not materially misleading;
(e) The Acquiring Fund is not engaged currently, and the
execution, delivery and performance of this Agreement
will not result, in (i) a material violation
of MSTs Declaration or By-Laws or of any agreement,
indenture, instrument, contract, lease or other
undertaking to which MST, on behalf of the Acquiring
Fund, is a party or by which it is bound, or (ii)
the acceleration of any material obligation, or
the imposition of any material penalty, under any
agreement, indenture, instrument, contract, lease,
judgment or decree to which MST, on behalf of
the Acquiring Fund, is a party or by which it is bound;
(f) No litigation or administrative proceeding or
investigation of or before any court or governmental
body is presently pending or, to its knowledge,
threatened against MST, with respect to the Acquiring
Fund or any of the Acquiring Funds properties or
assets, that, if adversely determined, would
materially and adversely affect the Acquiring Funds
financial condition or the conduct of its business.
MST, on behalf of the Acquiring Fund, knows
of no facts which might form the basis for the
institution of such proceedings and is not a party
to or subject to the provisions of any order, decree or
judgment of any court or governmental body which
materially and adversely affects the Acquiring Funds
business or its ability to consummate the
transactions herein contemplated;
(g) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets and Schedule
of Investments of the Acquiring Fund at June 30, 2009
have been audited by Ernst & Young LLP, Independent
Registered Public Accounting Firm, and are in
accordance with GAAP consistently applied, and such
statements present fairly, in all material respects,
the financial condition of the Acquiring Fund as of
such date in accordance with GAAP,
and there are no known
contingent liabilities of the Acquiring Fund required
to be reflected on a balance sheet (including the
notes thereto) in accordance with GAAP as of such
date not disclosed therein;
(h) Since June 30, 2009, there has not been any
material adverse change in the Acquiring Funds
financial condition, assets, liabilities or business,
other than changes occurring in the ordinary course
of business, or any incurrence by the Acquiring
Fund of indebtedness other than in the ordinary
course in accordance with the Acquiring Funds
investment restrictions. For purposes of this
subparagraph (h), a decline in net asset value per
share of the Acquiring Fund Shares due to
declines in market values of securities held
by the Acquiring Fund, the discharge of Acquiring
Fund liabilities, or the redemption of Acquiring
Fund Shares by shareholders of the Acquiring Fund,
shall not constitute a material adverse change;
(i) On the Closing Date, all federal and other tax returns,
dividend reporting forms, and other tax-related reports
of the Acquiring Fund required by law to have been
filed by such date (including any extensions) shall
have been filed and are or will be correct in all
material respects, and all federal and other taxes
shown as due or required to be shown as due on
said returns and reports shall have been paid
or provision shall have been made for the payment
thereof, and to the best knowledge of MST,
no such return is currently under audit and no
assessment has been asserted with respect to
such returns;
(j) For each taxable year of its operation (including the
taxable year that includes the Closing Date), the
Acquiring Fund has met (or will meet) the requirements
of Subchapter M of the Code for qualification as a
regulated investment company, has been eligible to
(or will be eligible to) and has computed (or will
compute) its federal income tax under Section 852
of the Code, and has distributed all of
its investment company taxable income and net
capital gain (as defined in the Code)
for periods ending prior to the Closing Date;
(k) All issued and outstanding Acquiring Fund Shares
are, and on the Closing Date will
be, duly authorized and validly issued and outstanding,
fully paid and non-assessable
by MST and have been offered and sold in every state,
territory and the District of Columbia in
compliance in all material respects with applicable
registration requirements of the 1933 Act and other
applicable federal and state securities laws.
The Acquiring Fund does not have outstanding any
options, warrants or other rights to subscribe
for or purchase any Acquiring Fund Shares, nor is
there outstanding any security convertible into
any Acquiring Fund Shares;
(l) The execution, delivery and performance of this
Agreement, and the transactions contemplated herein,
have been duly authorized by all necessary action,
if any, on the part of the Trustees of MST, on behalf
of the Acquiring Fund, and this Agreement constitutes
a valid and binding obligation of MST, on behalf
of the Acquiring Fund, enforceable in accordance
with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors
rights and to general equity principles;
(m) The Class A, B, C and Y Acquiring Fund Shares to be
issued and delivered to the Acquired Fund,
for the account of the Acquired Fund Shareholders,
pursuant to the terms of this Agreement, will on the
Closing Date have been duly authorized and,
when so issued and delivered, will be duly and
validly issued acquiring fund Shares, and will
be fully paid
and non-assessable by the Acquiring Fund; and
(n) The information to be furnished by the Acquiring Fund
for use in the Registration Statement (as defined in
paragraph 5.5) or other documents filed or to be filed
with any federal, state or local regulatory authority
(including the Financial Industry Regulatory Authority,
Inc.), which may be necessary in connection with
the transactions contemplated hereby shall be accurate
and complete in all material
respects and shall comply in all material
respects with federal securities and other
laws and regulations applicable thereto.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1. The Acquiring Fund and the Acquired Fund each will
operate its business in the ordinary course between
the date hereof and the Closing Date, it being
understood that such ordinary course of business will
include the declaration and payment of customary
dividends and distributions, and any other distribution
that may be advisable.
5.2. The Acquired Fund will (a) send appropriate notification
to its shareholders of the
Acquired Fund regarding the transactions contemplated
by this Agreement and (b) call a meeting of the
shareholders of the Acquired Fund to consider and act upon
this Agreement and to take all other action necessary
to obtain approval of the transactions contemplated herein
5.3. The Acquired Fund covenants that the Class A, B, C and Y
Acquiring Fund Shares to be issued hereunder are not being
acquired for the purpose of making any distribution thereof,
other than in accordance with the terms of this Agreement.
5.4. Subject to the provisions of this Agreement, the Acquiring
Fund and the Acquired Fund each will take, or cause to
be taken, all action, and do or cause to be done,
all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated
by this Agreement.
5.5. MST, on behalf of the Acquiring Fund, shall prepare
and file a Registration Statement on Form N-14 in
compliance with the 1933 Act, the 1934 Act and the 1940
Act and the rules and regulations thereunder with respect
to the Reorganization (Registration Statement).
The Acquired Fund will provide in a timely manner to MST
such information regarding the Acquired Fund as may
be necessary for the preparation of the Registration
Statement.
5.6. The Acquiring Fund and the Acquired Fund each shall
use its reasonable best efforts to fulfill or obtain
the fulfillment of the conditions precedent to effect
the transactions contemplated by this Agreement as
promptly as practicable.
5.7. MST, on behalf of the Acquired Fund, shall execute
and deliver or cause to be executed
and delivered all such assignments and other instruments,
and will take or cause to be
taken such further action as may be necessary or desirable
in order to (a) vest in and confirm (i) the title and
possession of MST, on behalf of the Acquired Fund, of the
Acquiring Fund Shares to be delivered hereunder, and (ii)
the title and possession of MST,
on behalf of the Acquiring Fund, of all the Assets, and
(b) otherwise to carry out the intent and purpose of
this Agreement.
5.8. The Acquiring Fund will use all reasonable efforts to
obtain the approvals and authorizations
required by the 1933 Act, the 1940 Act and such of
the state blue sky or securities laws
as may be necessary in order to continue its operations
after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of MST, on behalf of the Acquired Fund, to consummate
the transactions provided or herein shall be subject, at MSTs election,
to the performance by MST, on behalf of the
Acquiring Fund, of all the obligations to be performed by it
hereunder on or before the Closing Date, and, in addition thereto,
the following further conditions:
6.1. All representations and warranties of MST, on behalf
of the Acquiring Fund, contained in this Agreement shall
be true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions
contemplated by this Agreement, as of the Closing Date, with
the same force and effect as if made on and
as of the Closing Date;
6.2. MST, on behalf of the Acquiring Fund, shall have executed
and delivered to the Acquired Fund an Assumption of
Liabilities, certified by an officer of the Acquiring Fund,
dated as of the Closing Date, pursuant to which MST,
on behalf of the Acquiring Fund, assumes all the Liabilities
of the Acquired Fund existing on the Valuation Date;
6.3. MST, on behalf of the Acquiring Fund, shall have delivered
to the Acquired Fund a certificate executed by MSTs
President or Vice President and its Treasurer or Assistant
Treasurer and dated as of the Closing Date to the effect
that the representations and warranties of MST, on behalf
of the Acquiring Fund, made in this Agreement are
true and correct at and as of the Closing Date, except as
they may be affected by the transactions contemplated by
this Agreement;
6.4. MST, on behalf of the Acquiring Fund, shall have performed
all of the covenants and complied with all of the provisions
required by this Agreement to be performed or
complied with by MST, on behalf of the Acquiring Fund,
on or before the Closing Date; and
6.5. The number of full and fractional Class A, B, C and Y
Acquiring Fund Shares to be issued in connection with
the Reorganization shall have been calculated in
accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of MST, on behalf of the Acquiring Fund, to
complete the transactions provided for therein shall be subject,
at MSTs election, to the performance by MST, on behalf of the
Acquired Fund, of all of the obligations to be performed by it
hereunder on or before the Closing Date and, in
addition thereto, the following conditions:
7.1. All representations and warranties of MST, on
behalf of the Acquired Fund, contained in this Agreement
shall be true and correct in all material respects as of
the date hereof and, except as they may be affected by
the transactions contemplated by this
Agreement, as of the Closing Date, with the same force and
effect as if made on and
as of the Closing Date;
7.2. MST shall have delivered to the Acquiring Fund a statement
of the Assets and Liabilities of the Acquired Fund, as of
the Closing Date, certified by the Treasurer of MST;
7.3. MST, on behalf of the Acquired Fund, shall have delivered
to the Acquiring Fund a certificate executed in the name
of the Acquired Fund by its President or Vice
President and its Treasurer or Assistant Treasurer and
dated as of the Closing Date to the effect that the
representations and warranties of MST, on behalf of the
Acquired Fund, made in this Agreement are true and correct
at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement;
7.4. MST, on behalf of the Acquired Fund, shall have performed
all of the covenants and complied with all of the provisions
required by this Agreement to be performed or
complied with by MST, on behalf of the Acquired Fund, on or
before the Closing Date;
7.5. The number of full and fractional Class A, B, C and Y
Acquiring Fund Shares to be issued in connection with
the Reorganization shall have been calculated in accordance
with paragraph 1.1; and
7.6. The Acquired Fund shall have declared and paid a distribution
or distributions prior to the Closing that, together with all
previous distributions, shall have the effect of distributing
to its shareholders (a) all of its investment
company taxable income and all of its net realized capital
gains, if any, for the period
from the close of its last fiscal year to 4:00 p.m. Eastern
time on the Closing Date; and (b) any undistributed investment
company taxable income and net realized capital gains from
any period to the extent not otherwise already distributed.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND
THE ACQUIRED FUND
If any of the conditions set forth below have not been satisfied on
or before the Closing Date with respect to MST, on behalf of the
Acquired Fund or MST, on behalf of the Acquiring
Fund, MST may, at its option, refuse to consummate the transactions
contemplated by this Agreement:
8.1. 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 Declaration of Trust
and by-laws of MST, applicable state law and the 1940 Act;
8.2. On the Closing Date no action, suit or other proceeding
shall be pending or, to MSTs knowledge, threatened before any
court or governmental agency in which it
is sought to restrain or prohibit, or obtain damages or other
relief in connection with, this Agreement or the transactions
contemplated herein;
8.3. All consents of other parties and all other consents, orders
and permits of federal, state and local regulatory authorities
deemed necessary by MST to permit consummation, in all
material respects, of the transactions contemplated
hereby shall have been obtained, except where failure to
obtain any such consent, order or permit would not involve
a risk of a material adverse effect on the assets
or properties of the Acquiring Fund or the Acquired Fund;
8.4. The Registration Statement shall have become effective under
the 1933 Act and no stop orders suspending the effectiveness
thereof shall have been issued and, to
the best knowledge of the parties hereto, no investigation
or proceeding for that purpose shall have been instituted
or be pending, threatened or contemplated under the 1933 Act;
and
8.5. MST shall have received the opinion of Dechert LLP, counsel
to MST, addressed to MST substantially to the effect that,
based upon certain facts, assumptions and representations,
the transaction contemplated by this Agreement shall constitute
a tax-free reorganization for federal income tax purposes.
The delivery of such opinion is conditioned upon receipt
by Dechert LLP, counsel to MST, of representations it
shall request of MST. Notwithstanding anything herein to
the contrary, MST may not consummate the transactions
contemplated by this Agreement if this condition is not
satisfied.
9. INDEMNIFICATION
9.1. MST, out of the Acquiring Funds assets and property
(including any amounts paid to the Acquiring Fund pursuant to
any applicable liability insurance policies or
indemnification agreements), agrees to indemnify and hold
harmless the Acquired Fund from and against any and all
losses, claims, damages, liabilities or expenses
(including, without limitation, the payment of reasonable
legal fees and reasonable costs of investigation) to which
the Acquired Fund may become subject, insofar as
such loss, claim, damage, liability or expense (or actions
with respect thereto) arises out of or is based on any
breach by the Acquiring Fund of any of its
representations, warranties, covenants or agreements
set forth in this Agreement,
provided that such indemnification by the Acquiring
Fund is not in violation of
any applicable law.
9.2. MST, out of the Acquired Funds assets and property
(including any amounts paid to
the Acquired Fund pursuant to any applicable liability
insurance policies or
indemnification agreements), agrees to indemnify and
hold harmless the Acquiring
Fund from and against any and all losses, claims, damages,
liabilities or expenses (including, without limitation,
the payment of reasonable legal fees and reasonable
costs of investigation) to which the Acquiring Fund
may become subject, insofar as such loss, claim, damage,
liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Acquired
Fund of any of its representations, warranties, covenants
or agreements set forth in this Agreement,
provided that such indemnification by the Acquired
Fund is not in violation of any applicable law.
10. BROKERAGE FEES AND EXPENSES
10.1. MST, on behalf of the Acquiring Fund and on behalf of
the Acquired Fund, represents and warrants that there are
no brokers or finders entitled to receive any payments
in connection with the transactions provided for herein,
other than any brokerage fees and expenses in connection
with the Reorganization as set forth in paragraph 10.2.
10.2. The expenses relating to the proposed Reorganization will
be borne solely by MCM. No such expenses shall be borne
by the Acquired Fund or the Acquiring Fund,
except for brokerage fees and expenses incurred in connection
with the Reorganization. The costs of the Reorganization shall
include, but not be limited to, costs associated with obtaining
any necessary order of exemption from the 1940 Act,
if any, legal fees, accounting fees, and securities
registration fees. Notwithstanding any of the foregoing,
expenses will in any event be paid by the party directly
incurring such expenses if and to the extent that the
payment by another person of such expenses would result
in the disqualification of such
party as a regulated investment company within the meaning
of Section 851 of the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. MST has not made any representation, warranty or covenant,
on behalf of either the Acquired Fund or the Acquiring Fund,
not set forth herein, and this Agreement constitutes the
entire agreement between the Acquiring Fund and
the Acquired Fund with respect to the Reorganization.
11.2. The representations, warranties and covenants contained in
this Agreement or in any document delivered pursuant hereto
or in connection herewith shall survive
the consummation of the transactions contemplated hereunder.
The covenants to be performed after the Closing and the
obligations of the Acquired Fund and
Acquiring Fund in Sections 9.1 and 9.2 shall survive
the Closing.
12. TERMINATION
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned by resolution of MSTs Board of Trustees,
at any time prior to the Closing Date, if circumstances should develop
that, in its opinion, make proceeding with the Agreement inadvisable.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such
manner as may be deemed necessary or advisable by the authorized
officers of MST.
14. HEADINGS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
14.1. The Article and paragraph headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware
without regard to its principles of conflicts of laws.
14.3. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and
assigns, but no assignment or transfer hereof or of
any rights or obligations hereunder shall be made by
any party without the written consent of the other party.
Nothing herein expressed or implied is intended
or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and
their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
14.4. This Agreement may be executed in any number of counterparts,
each of which, when executed and delivered, shall be deemed
to be an original.
[Signatures Appear on the Following Page]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by a duly authorized officer.
MUNDER SERIES TRUST,
on behalf of the Munder Technology Fund
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Secretary
MUNDER SERIES TRUST,
on behalf of the Munder Growth Opportunities Fund
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Secretary
With respect to Paragraph 10.2 of this Agreement, Accepted and
Acknowledged by:
MUNDER CAPITAL MANAGEMENT
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Chief Financial Officer
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