Item 77Q1(g)
MUNDER SERIES TRUST
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made as of this
11th day of September, 2012, by Munder Series Trust ("MST"), a Delaware
statutory trust, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of the Munder International Fund -
Core Equity ("Acquiring Fund") and on behalf of the Munder International
Equity Fund ("Acquired Fund"), each a separate series of MST.
This Agreement is intended to be and is adopted as a plan of reorganization
and liquidation within the meaning of Section 368(a)(1) of the United States
Internal Revenue Code of 1986, as amended ("Code"). The reorganization and
liquidation will consist of (1) the sale, assignment, conveyance, transfer
and delivery of all of the property and assets of the Acquired Fund to the
Acquiring Fund in exchange solely for shares of beneficial interest of Class
A, C, and Y shares of the Acquiring Fund ("Acquiring Fund Shares")
corresponding to or designated in Section 1.1 and Section 1.4 of this
Agreement as the corresponding class of outstanding shares of beneficial
interest of the Acquired Fund ("Acquired Fund Shares"), (2) the assumption
by the Acquiring Fund of all liabilities of the Acquired Fund, and (3) the
distribution of the Acquiring Fund Shares to the shareholders of the Acquired
Fund in complete liquidation of the Acquired Fund, as provided herein
("Reorganization"), all upon the terms and conditions hereinafter set forth in
this Agreement.
WHEREAS, the Acquired Fund and the Acquiring Fund are each a series of MST, a
registered investment company classified as a management investment company of
the open-end type under the Investment Company Act of 1940, as amended ("1940
Act");
WHEREAS, the Acquired Fund owns securities that generally are assets of the
character in which the Acquiring Fund is permitted to invest;
WHEREAS, the Board of Trustees of MST have determined, with respect to the
Acquiring Fund, that (i) the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired Fund for the
corresponding Acquiring Fund Shares and the assumption of all liabilities of
the Acquired Fund by the Acquiring Fund is in the best interests of the
Acquiring Fund and (ii) the interests of the existing shareholders of the
Acquiring Fund would not be diluted as a result of this transaction; and
WHEREAS, the Board of Trustees of MST has also determined, with respect to the
Acquired Fund, that (i) the sale, assignment, conveyance, transfer and
delivery of all of the property and assets of the Acquired Fund for
corresponding Acquiring Fund Shares and the assumption of all liabilities
of the Acquired Fund by the Acquiring Fund is in the best interests of the
Acquired Fund and (ii) the interests of the existing shareholders of the
Acquired Fund would not be diluted as a result of this transaction;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. TRANSFER OF ASSETS OF THE ACQUIRED FUND TO THE ACQUIRING FUND IN EXCHANGE
FOR ACQUIRING FUND SHARES, THE ASSUMPTION OF ALL ACQUIRED FUND LIABILITIES
AND THE LIQUIDATION OF THE ACQUIRED FUND
1.1. Subject to the requisite approval by Acquired Fund Shareholders (as
defined in paragraph 3.1 below) and the other terms and conditions herein
set forth and on the basis of the representations and warranties contained
herein, the Acquired Fund agrees to sell, assign, convey, transfer and
deliver all of the property and assets of the Acquired Fund, as set forth
in paragraph 1.2, to the Acquiring Fund, and the Acquiring Fund agrees in
exchange therefore: (a) to deliver to the Acquired Fund the number of full
and fractional Class A, A, C, A, and Y Acquiring Fund Shares determined by
dividing the value of the Acquired Fund's net assets with respect to each
corresponding class of Acquired Fund Shares, computed in the manner and as
of the time and date set forth in paragraph 2.1, by the net asset value of
one Acquiring Fund Share of the corresponding class, computed in the manner
and as of the time and date set forth in paragraph 2.2; and (b) to assume
all liabilities of the Acquired Fund, as set forth in paragraph 1.3. Such
transactions shall take place on the date of the closing provided for in
paragraph 3.1 ("Closing Date"). For purposes of this Agreement, and this
paragraph 1.1 in particular, each of Class B shares and Class K shares of
the Acquired Fund shall be deemed to correspond to Class A shares of the
Acquiring Fund.
1.2. The property and assets of MST attributable to the Acquired Fund to be
sold, assigned, conveyed transferred and delivered to and acquired by the
Acquiring Fund shall consist of all property and assets, including, without
limitation, all rights, cash, securities, commodities and futures interests
and dividends or interests receivable that are owned by the Acquired Fund
and any deferred or prepaid expenses shown as an asset on the books of the
Acquired Fund on the Valuation Date as defined in paragraph 2.1 (collectively,
"Assets"). The Acquired Fund will sell, assign, convey, transfer and deliver
to the Acquiring Fund any rights, stock dividends, or other securities, if
any, received by the Acquired Fund after the Closing Date as stock dividends
or other distributions on or with respect to the Assets transferred, which
rights, stock dividends, and other securities shall be deemed included in the
Assets transferred to the Acquiring Fund at the Closing Date and shall not be
separately valued, in which case any such stock dividends or other
distribution that remain unpaid and/or have not been received by the Acquired
Fund as of the Closing Date shall be included in the determination of the
value of the Assets of the Acquired Fund acquired by the Acquiring Fund.
1.3. The Acquired Fund will make reasonable efforts to discharge all of its
known liabilities and obligations prior to the Valuation Date. The Acquiring
Fund shall assume all of the liabilities of the Acquired Fund, whether accrued
or contingent, known or unknown, existing at the Valuation Date (collectively,
"Liabilities"). On or as soon as practicable prior to the Closing Date, the
Acquired Fund will declare and pay to its shareholders of record one or more
dividends and/or other distributions so that it will have distributed
substantially all (and in no event less than 98%) of its investment company
taxable income (computed without regard to any deduction for dividends paid)
and realized net capital gain (after reduction for any available capital loss
carryover), if any, for the current taxable year through the Closing Date.
1.4. Immediately following the actions contemplated by paragraph 1.1, MST
shall take such actions necessary to complete the liquidation of the Acquired
Fund. To complete the liquidation, MST, on behalf of the Acquired Fund, shall
(a) distribute to the Acquired Fund's shareholders of record with respect to
each class of its shares as of the Closing as defined in paragraph 3.1
("Acquired Fund Shareholders"), on a pro rata basis within that class, the
Acquiring Fund Shares of the corresponding class received by the Acquired
Fund pursuant to paragraph 1.1, and (b) completely liquidate the Acquired
Fund. Such distribution and liquidation will be accomplished, with respect to
each class of the Acquired Fund's shares, by the transfer of the Acquiring
Fund Shares then credited to the account of the Acquired Fund on the books of
the Acquiring Fund to open accounts on the share records of the Acquiring Fund
in the names of the Acquired Fund Shareholders. The aggregate net asset value
of Class A, A, C, A, and Y Acquiring Fund Shares to be so credited to Class A,
B, C, K, and Y Acquired Fund Shareholders, respectively, shall, with respect
to each class, be equal to the aggregate net asset value of the Acquired Fund
Shares of the corresponding class owned by Acquired Fund Shareholders on the
Closing Date. All issued and outstanding Acquired Fund Shares will
simultaneously be canceled on the books of the Acquired Fund. The Acquiring
Fund will not issue certificates representing the Class A, C, and Y Acquiring
Fund Shares in connection with the Reorganization.
1.5. Ownership of Acquiring Fund Shares will be shown on the books of the
Acquiring Fund's Transfer Agent, as defined in paragraph 3.3 hereof.
1.6. Any reporting responsibility of the Acquired Fund, including, but not
limited to, the responsibility for filing regulatory reports, tax returns, or
other documents with the Securities and Exchange Commission ("Commission"),
any state securities commission, and any federal, state or local tax
authorities or any other relevant regulatory authority, is and shall remain
the responsibility of the Acquired Fund.
2. VALUATION
2.1. The value of the Assets shall be the value of such Assets as of the close
of business of the New York Stock Exchange and after the declaration of any
dividends on the Closing Date (such time and date being also referred to
herein as the "Valuation Date"), computed using the valuation procedures set
forth in the Acquired Fund's then-current prospectus and statement of
additional information, each as may be supplemented, and valuation procedures
established by MST's Board of Trustees.
2.2. The net asset value of each Class A, C, and Y Acquiring Fund Share shall
be the net asset value per share computed with respect to that class as of the
Valuation Date, computed using the valuation procedures set forth in the
Acquiring Fund's then-current prospectus and statement of additional
information, each as may be supplemented, and valuation procedures established
by MST's Board of Trustees.
2.3. The number of the Class A, C, and Y Acquiring Fund Shares to be issued
(including fractional shares, if any) in exchange for the Acquired Fund's
Assets shall be determined with respect to each such class by dividing the
value of the net assets with respect to the corresponding Class A, B, C, K,
and Y Acquired Fund Shares, as the case may be, determined using the same
valuation procedures referred to in paragraph 2.1, by the net asset value
of a corresponding Acquiring Fund Share, determined using the same valuation
procedures referred to in paragraph 2.2.
2.4. All computations of value shall be made by State Street Bank and Trust
Company, in its capacity as sub-administrator for MST, and shall be subject to
confirmation by Munder Capital Management ("MCM"), MST's administrator.
3. CLOSING AND CLOSING DATE
3.1. The Closing Date shall be December 7, 2012, or such other date as the
parties may agree. All acts taking place at the closing of the transactions
provided for in this Agreement ("Closing") shall be deemed to take place
simultaneously as of the close of business on the Closing Date unless
otherwise agreed to by the parties. The close of business on the Closing Date
shall be as of 4:00 p.m., Eastern Time. The Closing shall be held at the
offices of MST or at such other time and/or place as the parties may agree.
3.2. MST shall direct State Street Bank and Trust Company, as custodian for
the Acquired Fund ("Custodian"), to deliver to MST at the Closing a certificate
of an authorized officer of the Custodian stating that (a) the Assets of the
Acquired Fund have been delivered in proper form to the Acquiring Fund within
two (2) business days prior to or on the Closing Date, and (b) the Custodian
has paid such amounts, or set aside such amounts necessary for payment, as it
has been instructed by an authorized person of the Funds under the Custody
Agreement. The Acquired Fund's portfolio securities represented by a
certificate or other written instrument shall be presented by the Custodian to
those persons at the Custodian who have primary responsibility for the
safekeeping of the assets of the Acquiring Fund, as the Custodian also serves
as the custodian for the Acquiring Fund. Such presentation shall be made for
examination no later than five (5) business days preceding the Closing Date,
and such certificates and other written instruments shall be transferred and
delivered by the Acquired Fund as of the Closing Date for the account of the
Acquiring Fund duly endorsed in proper form for transfer in such condition as
to constitute good delivery thereof. The Custodian shall deliver to those
persons at the Custodian who have primary responsibility for the safekeeping of
the assets of the Acquiring Fund as of the Closing Date by book entry, in
accordance with the customary practices of the Custodian and of each securities
depository, as defined in Rule 17f-4 under the 1940 Act, in which the Acquired
Fund's Assets are deposited, the Acquired Fund's Assets deposited with such
depositories. The cash to be transferred by the Acquired Fund shall be
delivered by wire transfer of Federal funds on the Closing Date.
3.3. MST shall direct BNY Mellon Investment Servicing (US) Inc., in its
capacity as transfer agent for MST ("Transfer Agent"), to deliver to MST at
the Closing a certificate of an authorized officer of the Transfer Agent
stating that its records contain the names and addresses of each Acquired
Fund Shareholder and the number and percentage ownership of outstanding Class
A, B, C, K, and Y shares owned by each such shareholder immediately prior to
the Closing. The Secretary of MST shall confirm that (a) the appropriate
number of corresponding Acquiring Fund Shares have been credited to the
Acquired Fund's account on the books of the Acquiring Fund pursuant to
paragraph 1.1 prior to the actions contemplated by paragraph 1.4, and (b)
the appropriate number of corresponding Acquiring Fund Shares have been
credited to the accounts of the Acquired Fund Shareholders on the books of
the Acquiring Fund pursuant to paragraph 1.4. At the Closing MST shall
execute such bills of sale, checks, assignments, stock certificates, if any,
receipts or other documents as necessary to effect the Reorganization.
3.4. In the event that on the Valuation Date (a) the New York Stock Exchange or
another primary trading market for portfolio securities of the Acquiring Fund
orthe Acquired Fund (each, an "Exchange") shall be closed to trading or
trading thereupon shall be restricted, or (b) trading or the reporting of
trading on such Exchange or elsewhere shall be disrupted so that, in the
judgment of the Board of Trustees of MST, accurate appraisal of the value of
the net assets of the Acquiring Fund or the Acquired Fund is impracticable,
the Closing Date shall be postponed until the first business day practicable
after the day when trading shall have been fully resumed and reporting shall
have been restored.
4. REPRESENTATIONS AND WARRANTIES
4.1. Except as has been fully disclosed to the Acquiring Fund prior to the date
of this Agreement in a written instrument executed by an officer of MST, MST
(on behalf of the Acquired Fund) represents and warrants to the Acquiring Fund
as follows:
(a) The Acquired Fund is duly organized as series of MST, which is a business
trust duly organized, validly existing and in good standing under the laws of
Delaware, with power under MST's Declaration of Trust, as amended from time to
time ("Declaration"), to own all of its Assets and to carry on its business as
it is now being conducted;
(b) MST is a registered investment company classified as a management company
of the open-end type, and its registration with the Commission as an investment
company under the 1940 Act, and the registration of the Class A, B, C, K and Y
Acquired Fund Shares under the Securities Act of 1933, as amended ("1933 Act"),
is in full force and effect;
(c) No consent, approval, authorization, or order of any court or governmental
authority is required for the consummation by the Acquired Fund of the
transactions contemplated herein, except such as may be required under the 1933
Act, the Securities Exchange Act of 1934, as amended ("1934 Act"), the 1940 Act
and state securities laws;
(d) The current prospectus and statement of additional information of the
Acquired Fund and each prospectus and statement of additional information of
the Acquired Fund used at all times prior to the date of this Agreement
conforms or conformed at the time of its use in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not or did not at the time
of its use include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not materially misleading;
(e) On the Valuation Date, MST, on behalf of the Acquired Fund, will have good
and marketable title to the Assets of the Acquired Fund and full right, power,
and authority to sell, assign, convey, transfer and deliver such Assets
hereunder free of any liens or other encumbrances, and upon delivery and
payment for such Assets, MST, on behalf of the Acquiring Fund, will acquire
good and marketable title thereto, subject to no restrictions on the full
transfer thereof, including such restrictions as might arise under the 1933
Act;
(f) The Acquired Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a material violation
of MST's Declaration or by-laws ("By-Laws") or of any agreement, indenture,
instrument, contract, lease or other undertaking to which MST, on behalf of the
Acquired Fund, is a party or by which it is bound, or (ii) the acceleration of
any material obligation, or the imposition of any material penalty, under any
agreement, indenture, instrument, contract, lease, judgment or decree to which
MST, on behalf of the Acquired Fund, is a party or by which it is bound;
(g) All material contracts or other commitments of the Acquired Fund (other
than this Agreement and certain investment contracts including options,
futures, and forward contracts) will terminate without liability to the
Acquired Fund on or prior to the Closing Date;
(h) No litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or, to MST's knowledge,
threatened against MST, with respect to the Acquired Fund or any of its
properties or Assets, that, if adversely determined, would materially and
adversely affect its financial condition or the conduct of its business.
MST, on behalf of the Acquired Fund, knows of no facts that might form the
basis for the institution of such proceedings and is not a party to or subject
to the provisions of any order, decree or judgment of any court or governmental
body which materially and adversely affects its business or its ability to
consummate the transactions herein contemplated;
(i) The Statement of Assets and Liabilities, Statements of Operations and
Changes in Net Assets, and Schedule of Investments of the Acquired Fund at June
30, 2012 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, 2012, there has not been any material adverse change in the
Acquired Fund's financial condition, Assets, liabilities or business, other
than changes occurring in the ordinary course of business, or any incurrence
by the Acquired Fund of indebtedness other than in the ordinary course in
accordance with the Acquired Fund's investment restrictions. For the purposes
of this subparagraph (j), a decline in net asset value per share of Acquired
Fund Shares due to declines in market values of securities held by the
Acquired Fund, the discharge of the Acquired Fund's liabilities, or the
redemption of Acquired Fund Shares by shareholders of the Acquired Fund
shall not constitute a material adverse change;
(k) On the Closing Date, all federal and other tax returns, dividend reporting
forms, and other tax-related reports of the Acquired Fund required by law to
have been filed by such date (including any extensions) shall have been filed
and are or will be correct in all material respects, and all federal and
other taxes shown as due or required to be shown as due on said returns and
reports shall have been paid or provision shall have been made for the payment
thereof and, to the best knowledge of MST, no such return is currently under
audit and no assessment has been asserted with respect to such returns;
(l) For each taxable year of its operation (including the taxable year ending
on the Closing Date), the Acquired Fund has met (or will meet) the requirements
of Subchapter M of the Code for qualification as a regulated investment company
("RIC"), has been (or will be) eligible to and has computed (or will compute)
its federal income tax under Section 852 of the Code, and will have distributed
all of its investment company taxable income (computed without regard to any
deduction for dividends paid) and net capital gain (as defined in the Code)
that has accrued through the Closing Date, and before the Closing Date will
have declared dividends sufficient to distribute all of its investment company
taxable income (computed without regard to any deduction for dividends paid)
and net capital gain (after reduction for any available capital loss carryover)
for the period ending on the Closing Date;
(m) All issued and outstanding Acquired Fund Shares are, and on the Closing
Date will be, duly authorized and validly issued and outstanding, fully paid
and non-assessable by MST and have been offered and sold in every state,
territory and the District of Columbia in compliance in all material respects
with applicable registration requirements of the 1933 Act and other securities
laws. All of the issued and outstanding Acquired Fund Shares will, at the time
of Closing, be held by the persons and in the amounts set forth in the records
of the Transfer Agent, on behalf of the Acquired Fund, as provided in paragraph
3.3. The Acquired Fund does not have outstanding any options, warrants or
other rights to subscribe for or purchase any of the Acquired Fund Shares, nor
is there outstanding any security convertible into any of the Acquired Fund
Shares;
(n) The execution, delivery and performance of this Agreement and the
transactions contemplated herein have been duly authorized by all necessary
action, if any, on the part of the Board of Trustees of MST, on behalf of the
Acquired Fund, and by the approval of the Acquired Fund's shareholders, as
described in paragraph 8.1, and this Agreement constitutes a valid and binding
obligation of MST, on behalf of the Acquired Fund, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights and to general equity principles; and
(o) The information to be furnished by the Acquired Fund for use in the
Registration Statement (as defined in paragraph 5.5) or any other documents
filed or to be filed with any federal, state or local regulatory authority
(including the Financial Industry Regulatory Authority, Inc. ("FINRA")), which
may be necessary in connection with the transactions contemplated hereby, shall
be accurate and complete in all material respects and shall comply in all
material respects with federal securities and other laws and regulations
thereunder applicable thereto.
4.2. Except as has been fully disclosed to the Acquired Fund prior to the date
of this Agreement in a written instrument executed by an officer of MST, MST
(on behalf of the Acquiring Fund) represents and warrants to the Acquired Fund
as follows:
(a) The Acquiring Fund is duly organized as a series of MST, which is a
statutory trust duly organized, validly existing, and in good standing under
the laws of the State of Delaware, with power under MST's Declaration, as
amended from time to time to own all of its properties and assets and to carry
on its business as it is now being conducted;
(b) MST is a registered investment company classified as a management company
of the open-end type, and its registration with the Commission as an investment
company under the 1940 Act and the registration of the Class A, C, Y and I
Acquiring Fund Shares under the 1933 Act, is in full force and effect;
(c) No consent, approval, authorization, or order of any court or governmental
authority is required for the consummation by the Acquiring Fund of the
transactions contemplated herein, except such as may be required under the 1933
Act, the 1934 Act, the 1940 Act and state securities laws;
(d) The current prospectus and statement of additional information of the
Acquiring Fund and each prospectus and statement of additional information of
the Acquiring Fund used at all times prior to the date of this Agreement
conforms or conformed at the time of its use in all material respects to the
applicable requirements of the 1933 Act and the 1940 Act and the rules and
regulations of the Commission thereunder and does not or did not at the time of
its use include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
materially misleading;
(e) The Acquiring Fund is not engaged currently, and the execution, delivery
and performance of this Agreement will not result, in (i) a material violation
of MST's Declaration or By-Laws or of any agreement, indenture, instrument,
contract, lease or other undertaking to which MST, on behalf of the Acquiring
Fund, is a party or by which it is bound, or (ii) the acceleration of any
material obligation, or the imposition of any material penalty, under any
agreement, indenture, instrument, contract, lease, judgment or decree to which
MST, on behalf of the Acquiring Fund, is a party or by which it is bound;
(f) No litigation or administrative proceeding or investigation of or before
any court or governmental body is presently pending or, to its knowledge,
threatened against MST, with respect to the Acquiring Fund or any of the
Acquiring Fund's properties or assets, that, if adversely determined, would
materially and adversely affect the Acquiring Fund's financial condition or the
conduct of its business. MST, on behalf of the Acquiring Fund, knows of no
facts that might form the basis for the institution of such proceedings and is
not a party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects the
Acquiring Fund's business or its ability to consummate the transactions herein
contemplated;
(g) The Statement of Assets and Liabilities, Statements of Operations and
Changes in Net Assets and Schedule of Investments of the Acquiring Fund at June
30, 2012 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, 2012, there has not been any material adverse change in the
Acquiring Fund's financial condition, assets, liabilities or business, other
than changes occurring in the ordinary course of business, or any incurrence by
the Acquiring Fund of indebtedness other than in the ordinary course in
accordance with the Acquiring Fund's investment restrictions. For purposes of
this subparagraph (h), a decline in net asset value per share of the Acquiring
Fund Shares due to declines in market values of securities held by the
Acquiring Fund, the discharge of Acquiring Fund liabilities, or the redemption
of Acquiring Fund Shares by shareholders of the Acquiring Fund, shall not
constitute a material adverse change;
(i) On the Closing Date, all federal and other tax returns, dividend reporting
forms, and other tax-related reports of the Acquiring Fund required by law to
have been filed by such date (including any extensions) shall have been filed
and are or will be correct in all material respects, and all federal and other
taxes shown as due or required to be shown as due on said returns and reports
shall have been paid or provision shall have been made for the payment
thereof, and to the best knowledge of MST, no such return is currently under
audit and no assessment has been asserted with respect to such returns;
(j) For each taxable year of its operation (including the taxable year that
includes the Closing Date), the Acquiring Fund has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a RIC, has been
eligible to (or will be eligible to) and has computed (or will compute) its
federal income tax under Section 852 of the Code, and has distributed all of
its investment company taxable income and net capital gain (as defined in the
Code) for periods ending prior to the Closing Date;
(k) All issued and outstanding Acquiring Fund Shares are, and on the Closing
Date will be, duly authorized and validly issued and outstanding, fully paid
and non-assessable by MST and have been offered and sold in every state,
territory and the District of Columbia in compliance in all material respects
with applicable registration requirements of the 1933 Act and other applicable
federal and state securities laws. The Acquiring Fund does not have
outstanding any options, warrants or other rights to subscribe for or purchase
any Acquiring Fund Shares, nor is there outstanding any security convertible
into any Acquiring Fund Shares;
(l) The execution, delivery and performance of this Agreement, and the
transactions contemplated herein, have been duly authorized by all necessary
action, if any, on the part of the Trustees of MST, on behalf of the Acquiring
Fund, and this Agreement constitutes a valid and binding obligation of MST, on
behalf of the Acquiring Fund, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights and to
general equity principles;
(m) The Class A, C and Y Acquiring Fund Shares to be issued and delivered to
the Acquired Fund, for the account of the Acquired Fund Shareholders, pursuant
to the terms of this Agreement, will on the Closing Date have been duly
authorized and, when so issued and delivered, will be duly and validly issued
Acquiring Fund Shares, and will be fully paid and non-assessable by the
Acquiring Fund; and
(n) The information to be furnished by the Acquiring Fund for use in the
Registration Statement (as defined in paragraph 5.5) or other documents filed
or to be filed with any federal, state or local regulatory authority
(including FINRA), which may be necessary in connection with the transactions
contemplated hereby shall be accurate and complete in all material respects
and shall comply in all material respects with federal securities and other
laws and regulations applicable thereto.
5. COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND
5.1. The Acquiring Fund and the Acquired Fund each will operate its business
in the ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include the declaration
and payment of customary dividends and distributions, and any other
distribution that may be advisable.
5.2. The Acquired Fund will (a) send appropriate notification to its
shareholders of the Acquired Fund regarding the transactions contemplated by
this Agreement and (b) call a meeting of the shareholders of the Acquired Fund
to consider and act upon this Agreement and to take all other action necessary
to obtain approval of the transactions contemplated herein
5.3. The Acquired Fund covenants that the Class A, 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 combined
proxy statement and Registration Statement on Form N-14 in compliance with the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations
thereunder with respect to the Reorganization ("Registration Statement").
The Acquired Fund will provide in a timely manner to MST such information
regarding the Acquired Fund as may be necessary for the preparation of the
Registration Statement.
5.6. The Acquiring Fund and the Acquired Fund each shall use its reasonable
best efforts to fulfill or obtain the fulfillment of the conditions precedent
to effect the transactions contemplated by this Agreement as promptly as
practicable.
5.7. MST, on behalf of the Acquired Fund, shall execute and deliver or cause to
be executed and delivered all such assignments and other instruments, and will
take or cause to be taken such further action as may be necessary or desirable
in order to (a) vest in and confirm (i) the title and possession of MST, on
behalf of the Acquired Fund, of the Acquiring Fund Shares to be delivered
hereunder, and (ii) the title and possession of MST, on behalf of the Acquiring
Fund, of all the Assets, and (b) otherwise to carry out the intent and purpose
of this Agreement.
5.8. The Acquiring Fund will use all reasonable efforts to obtain the approvals
and authorizations required by the 1933 Act, the 1940 Act and such of the state
blue sky or securities laws as may be necessary in order to continue its
operations after the Closing Date.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND
The obligations of MST, on behalf of the Acquired Fund, to consummate the
transactions provided for herein shall be subject, at MST's election, to the
performance by MST, on behalf of the Acquiring Fund, of all the obligations to
be performed by it hereunder on or before the Closing Date, and, in addition
thereto, the following further conditions:
6.1. All representations and warranties of MST, on behalf of the Acquiring
Fund, contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date, with the
same force and effect as if made on and as of the Closing Date;
6.2. MST, on behalf of the Acquiring Fund, shall have executed and delivered
to the Acquired Fund an Assumption of Liabilities Certificate, certified by an
officer of the Acquiring Fund, dated as of the Closing Date, pursuant to which
MST, on behalf of the Acquiring Fund, assumes all the Liabilities of the
Acquired Fund existing on the Valuation Date;
6.3. MST, on behalf of the Acquiring Fund, shall have delivered to the
Acquired Fund a certificate executed by MST's President or Vice President and
its Treasurer or Assistant Treasurer and dated as of the Closing Date to the
effect that the representations and warranties of MST, on behalf of the
Acquiring Fund, made in this Agreement are true and correct at and as of the
Closing Date, except as they may be affected by the transactions contemplated
by this Agreement;
6.4. MST, on behalf of the Acquiring Fund, shall have performed all of the
covenants and complied with all of the provisions required by this Agreement
to be performed or complied with by MST, on behalf of the Acquiring Fund, on
or before the Closing Date; and
6.5. The number of full and fractional Acquiring Fund Shares to be issued in
connection with the Reorganization, in exchange for the number of full and
fractional corresponding Acquired Fund Shares, shall have been calculated in
accordance with paragraph 1.1.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of MST, on behalf of the Acquiring Fund, to complete the
transactions provided for herein shall be subject, at MST's election, to the
performance by MST, on behalf of the Acquired Fund, of all of the obligations
to be performed by it hereunder on or before the Closing Date and, in addition
thereto, the following conditions:
7.1. All representations and warranties of MST, on behalf of the Acquired
Fund, contained in this Agreement shall be true and correct in all material
respects as of the date hereof and, except as they may be affected by the
transactions contemplated by this Agreement, as of the Closing Date, with the
same force and effect as if made on and as of the Closing Date;
7.2. MST shall have delivered to the Acquiring Fund a statement of the Assets
and the Liabilities of the Acquired Fund, as of the Closing Date, certified by
the Treasurer of MST;
7.3. MST, on behalf of the Acquired Fund, shall have delivered to the
Acquiring Fund a certificate executed in the name of the Acquired Fund by
its President or Vice President and its Treasurer or Assistant Treasurer and
dated as of the Closing Date to the effect that the representations and
warranties of MST, on behalf of the Acquired Fund, made in this Agreement
are true and correct at and as of the Closing Date, except as they may be
affected by the transactions contemplated by this Agreement;
7.4. MST, on behalf of the Acquired Fund, shall have performed all of the
covenants and complied with all of the provisions required by this Agreement
to be performed or complied with by MST, on behalf of the Acquired Fund, on
or before the Closing Date;
7.5. The number of full and fractional Acquired Fund Shares in connection with
the Reorganization, in exchange for the number of full and fractional
corresponding Acquiring Fund Shares, shall have been calculated in accordance
with paragraph 1.1; and
7.6. The Acquired Fund shall have declared and paid a distribution or
distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its shareholders (a)
all of its investment company taxable income and all of its net realized
capital gains, if any, for the period from the close of its last fiscal year
to 4:00 p.m. Eastern time on the Closing Date; and (b) any undistributed
investment company taxable income and net realized capital gains from any
period to the extent not otherwise already distributed.
8. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND AND THE
ACQUIRED FUND
If any of the conditions set forth below have not been satisfied on or before
the Closing Date with respect to MST, on behalf of the Acquired Fund or MST,
on behalf of the Acquiring Fund, the other party to this Agreement may, at its
option, refuse to consummate the transactions contemplated by this Agreement:
8.1. This Agreement and the transactions contemplated herein shall have been
approved by the requisite vote of the holders of the outstanding shares of the
Acquired Fund in accordance with the provision of MST's Declaration and By-
Laws, applicable state law and the 1940 Act;
8.2. On the Closing Date no action, suit or other proceeding shall be pending
or, to the knowledge of MST, threatened before any court or governmental
agency in which it is sought to restrain or prohibit, or obtain damages or
other relief in connection with, this Agreement or the transactions
contemplated herein;
8.3. All consents of other parties and all other consents, orders and permits
of federal, state and local regulatory authorities deemed necessary by MST to
permit consummation, in all material respects, of the transactions
contemplated hereby shall have been obtained, except where failure to obtain
any such consent, order or permit would not involve a risk of a material
adverse effect on the assets or properties of the Acquiring Fund or the
Acquired Fund;
8.4. The Registration Statement shall have become effective under the 1933 Act
and no stop orders suspending the effectiveness thereof shall have been issued
and, to the best knowledge of the parties hereto, no investigation or
proceeding for that purpose shall have been instituted or be pending,
threatened or contemplated under the 1933 Act; and
8.5. MST shall have received the opinion of Dechert LLP, counsel to MST,
addressed to MST substantially to the effect that, based upon certain facts,
assumptions and representations, the transaction contemplated by this Agreement
shall constitute a tax-free reorganization for federal income tax purposes.
The delivery of such opinion is conditioned upon receipt by Dechert LLP,
counsel to MST, of representations it shall request of MST. Notwithstanding
anything herein to the contrary, MST may not consummate the transactions
contemplated by this Agreement if this condition is not satisfied.
9. INDEMNIFICATION
9.1. MST, out of the Acquiring Fund's assets and property (including any
amounts paid to the Acquiring Fund pursuant to any applicable liability
insurance policies or indemnification agreements), agrees to indemnify and hold
harmless the Acquired Fund from and against any and all losses, claims,
damages, liabilities or expenses (including, without limitation, the payment
of reasonable legal fees and reasonable costs of investigation) to which the
Acquired Fund may become subject, insofar as such loss, claim, damage,
liability or expense (or actions with respect thereto) arises out of or is
based on any breach by the Acquiring Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement, provided that
such indemnification by the Acquiring Fund is not in violation of any
applicable law.
9.2. MST, out of the Acquired Fund's assets and property (including any amounts
paid to the Acquired Fund pursuant to any applicable liability insurance
policies or indemnification agreements), agrees to indemnify and hold harmless
the Acquiring Fund from and against any and all losses, claims, damages,
liabilities or expenses (including, without limitation, the payment of
reasonable legal fees and reasonable costs of investigation) to which the
Acquiring Fund may become subject, insofar as such loss, claim, damage,
liability or expense (or actions with respect thereto) arises out of or is
based on any breach by the Acquired Fund of any of its representations,
warranties, covenants or agreements set forth in this Agreement, provided
that such indemnification by the Acquired Fund is not in violation of any
applicable law.
10. BROKERAGE FEES AND EXPENSES
10.1. MST, on behalf of the Acquiring Fund and the Acquired Fund, represents
and warrants that there are no brokers or finders entitled to receive any
payments in connection with the transactions provided for herein, other than
any brokerage fees and expenses in connection with the Reorganization as set
forth in paragraph 10.2.
10.2. The expenses relating to the proposed Reorganization will be borne
solely by MCM and not by the Acquired Fund or the Acquiring Fund except as
provided herein. Any brokerage fees or similar transaction fees and expenses
incurred in connection with the Reorganization shall be borne by the Acquired
Fund or the Acquiring Fund incurring such fee or expense. The expenses of the
Reorganization to be borne by MCM shall include, but not be limited to,
costs associated with obtaining any necessary order of exemption from the
1940 Act, if any, legal fees, accounting fees, and securities registration
fees. Notwithstanding any of the foregoing, expenses will in any event be
paid by the party directly incurring such expenses if and to the extent that
the payment by another person of such expenses would result in the
disqualification of such party as a RIC within the meaning of Section 851 of
the Code.
11. ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
11.1. MST, on behalf of the Acquiring Fund and the Acquired Fund, agrees that
neither party has made any representation, warranty or covenant not set forth
herein, and this Agreement constitutes the entire agreement between the
Acquiring Fund and the Acquired Fund with respect to the Reorganization.
11.2. The representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant hereto or in connection
herewith shall survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing and the obligations
of the Acquired Fund and Acquiring Fund in Sections 9.1 and 9.2 shall survive
the Closing.
12. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby may
be abandoned by resolution of MST's Board of Trustees at any time prior to the
Closing Date if circumstances should develop that, in its opinion, make
proceeding with the Agreement inadvisable.
13. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as may
be deemed necessary or advisable by the authorized officers of MST.
14. HEADINGS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
14.1. The Article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.2. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware without regard to its principles of conflicts of
laws.
14.3. This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, but no assignment or transfer
hereof or of any rights or obligations hereunder shall be made by any party
without the written consent of the other party. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
14.4. This Agreement may be executed in any number of counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
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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 International Equity Fund
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President and Secretary
MUNDER SERIES TRUST,
on behalf of the International Fund - Core Equity
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President and Secretary
With respect to Paragraph 10.2 of this Agreement, Accepted and
Acknowledged by:
MUNDER CAPITAL MANAGEMENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇