Exhibit 8(vvv)
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of February 23, 2007 (the
"Agreement"), between Janus Investment Fund, a Massachusetts business trust with
offices at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Transferring
Trust"), on behalf of the Institutional Shares class and Service Shares class
(each, a Transferring Class") of its series, Janus Money Market Fund and Janus
Government Money Market Fund (each series of the Transferring Trust, a
"Transferring Fund"), and Janus Adviser Series, a Delaware statutory trust (the
"Acquiring Trust"), on behalf of the Institutional Shares class and Service
Shares class (each, an "Acquiring Class") of its series, Janus Institutional
Money Market Fund and Janus Institutional Government Money Market Fund (each
series of the Acquiring Trust, an "Acquiring Fund").
WHEREAS, each Transferring Fund is authorized to issue three classes of
shares, Investor Shares, Institutional Shares and Service Shares, and may issue
additional classes in the future;
WHEREAS, each Acquiring Fund is authorized to issue five classes of shares,
Select Shares, Primary Shares, Premium Shares, Institutional Shares and Service
Shares, and may issue additional classes in the future;
WHEREAS, for each Transferring Class of a Transferring Fund, there is a
corresponding Acquiring Class of each Acquiring Fund (and this Agreement refers
to the Transferring Class and the corresponding Acquiring Class as
"corresponding" classes) and for each Transferring Fund, there is an Acquiring
Fund corresponding to each Transferring Fund as follows (and this Agreement
refers to the Transferring Fund and the corresponding Acquiring Fund as
"corresponding" funds):
TRANSFERRING TRUST ACQUIRING TRUST
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Janus Money Market Fund Janus Institutional Money Market Fund
Janus Government Money Market Fund Janus Institutional Government Money Market Fund
WHEREAS, the Transferring Trust and the Acquiring Trust wish to effect a
reorganization (the "Reorganization"), which will consist of designating each
Transferring Class of each Transferring Fund as a new series of the Transferring
Trust, assigning to each new series a portion of the assets and liabilities of
the Transferring Fund equal in value to the aggregate net asset value of the
Transferring Fund represented by the Transferring Classes, as applicable,
transferring the assets and liabilities of the corresponding new series to the
corresponding Acquiring Class of each Acquiring Fund in exchange for shares of
the corresponding Acquiring Class of each Acquiring Fund (the "Acquiring Fund
Shares") and the redemption of those Transferring Class shares by distribution
in kind to the holders thereof of the corresponding Acquiring Fund Shares, such
actions to occur on the closing date provided for in paragraph 4.1
hereof (the "Closing Date"), all upon the terms and conditions hereinafter set
forth in this Agreement;
WHEREAS, as of the Closing Date, the Transferring Trust and the Acquiring
Trust are registered, open-end management investment companies, each
Transferring Class and Transferring Fund will be duly established and designated
classes and series of the Transferring Trust, and each Acquiring Class and
Acquiring Fund will be duly established and designated classes and series of the
Acquiring Trust;
WHEREAS, both the Transferring Trust and the Acquiring Trust will be
authorized as of the Closing Date to issue shares of beneficial interest in
connection with the Reorganization;
WHEREAS, the Board of Trustees of the Transferring Trust has determined
that the Reorganization is in the best interests of each Transferring Fund and
that the interests of each Transferring Fund's shareholders would not be diluted
as a result of the Reorganization;
WHEREAS, the Board of Trustees of the Acquiring Trust has determined that
the Reorganization is in the best interests of each Acquiring Fund and that the
interests of each Acquiring Fund's shareholders would not be diluted as a result
of the Reorganization; and
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties agree as follows:
1. CREATION OF ACQUIRING FUNDS
1.1 INVESTMENT OBJECTIVES, POLICIES AND PROCEDURES. Prior to the Closing
Date, the Board of Trustees of the Acquiring Trust shall adopt for each
Acquiring Fund investment objectives, policies and procedures identical to those
of the corresponding Transferring Fund.
1.2 AGREEMENTS AND PLANS. Prior to the Closing Date, the Board of Trustees
of the Acquiring Trust shall adopt for each Acquiring Class of each Acquiring
Fund investment advisory agreements, other agreements, and distribution and
administration plans and fees substantially similar to those of the
corresponding Transferring Class of the corresponding Transferring Fund.
1.3 INITIAL SHAREHOLDER APPROVALS. Prior to the valuation time provided for
in paragraph 3.1 hereof (the "Valuation Time"), each Acquiring Fund shall issue
to the corresponding Transferring Fund one nominal share of the Acquiring Fund.
No payment shall be made to the Acquiring Funds in connection with the issuance
of these nominal shares. Provided that the shareholders of one or both
Transferring Funds have approved the Reorganization, the Board of Trustees of
the Transferring Trust, or any officer of the Transferring Trust duly authorized
by that Board, on behalf of the Transferring Fund as sole shareholder of the
corresponding Acquiring Fund, shall approve the investment advisory agreement
between the Acquiring Fund and Janus Capital Management LLC ("Janus Capital")
substantially similar to the current advisory agreement between the
corresponding Transferring Fund and Janus Capital, to take effect the day
following the Closing Date. After these approvals, and before the Valuation
Time, each Transferring Fund shall redeem its nominal share of the Acquiring
Fund.
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2. REORGANIZATION
2.1 CREATION OF NEW SERIES OF THE TRANSFERRING TRUST. Subject to the terms
and conditions contained herein, the Transferring Trust agrees that, as of
immediately prior to the Valuation Time, it will designate each Transferring
Class of each Transferring Fund as a corresponding class of a separate series of
the Transferring Trust (each an "Interim Transferring Fund"), and each
Transferring Fund will allocate to the corresponding Interim Transferring Fund a
portion of the assets and liabilities of the Transferring Fund, including
securities and cash, having a value equal to the aggregate net asset value of
all Transferring Class shares of the Transferring Fund, both full and
fractional, issued and outstanding (collectively, the "Transferred Assets" of
that Transferring Fund), such values to be determined as set forth in paragraph
3.1. Each Interim Transferring Fund shall be newly-formed for the sole purpose
of engaging in the Reorganization and shall not have any assets or engage in any
business except as is necessary to consummate the Reorganization. Appendix A to
this Agreement identifies, for each Transferring Class of each Transferring
Fund, its corresponding Interim Transferring Fund and the corresponding
Acquiring Class of the corresponding Acquiring Fund. Where appropriate due to
the size of the Transferred Assets (either in absolute terms or as a percentage
of the entire Transferring Fund), the Transferred Assets shall consist of as
nearly a prorata portion as is reasonably practical of each security or other
asset held by the Transferring Fund as of immediately prior to the Valuation
Time. If, however, the size of the Transferred Assets makes it impractical to
apply such a prorata split to most of the securities held by the Transferring
Fund, the Transferred Assets shall be selected in a manner equitable to all
shareholders of the Transferring Fund. In any case, the Transferred Assets shall
be selected in a manner such that the deviation between market value and
amortized cost of each Interim Transferring Fund does not materially differ from
the deviation between market value and amortized cost of the corresponding
Transferring Class of the corresponding Transferring Fund immediately prior to
the Valuation Time. If the Transferred Assets consist all or primarily of cash,
Janus Capital shall bear the cost of the brokerage and other expenses incurred
by the Acquiring Funds in investing the cash. The allocation of assets under
this paragraph 2.1 shall be done in accordance with the terms set forth herein
and with the Investment Company Act of 1940, as amended (the "1940 Act"), rules
and regulations thereunder, and published no-action letters issued by the staff
of the Securities and Exchange Commission, as if the allocation of assets were a
sale of assets from each Transferring Class of a Transferring Fund to the
corresponding Interim Transferring Fund; provided, however, instead of a cash
payment, each Interim Transferring Fund will be considered to have issued its
shares to the corresponding Transferring Fund with a value equal to the value of
the corresponding Transfer Assets calculated in accordance with the provisions
of Section 3.1.
2.2 TRANSFER OF ASSETS AND LIABILITIES; ISSUANCE OF SHARES. Subject to the
terms and conditions contained herein:
a. As of the Valuation Time, the Transferring Trust will transfer,
convey and assign all of the Transferred Assets of each Interim
Transferring Fund to the corresponding Acquiring Fund.
b. In exchange therefor, each Acquiring Fund will (i) deliver to the
corresponding Interim Transferring Fund a number of full and fractional
Acquiring Fund Shares equal to the number of full and fractional
Transferring Class Shares of the
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corresponding Transferring Fund outstanding as of the Valuation Time and
(ii) take certain other actions, as set forth in paragraph 2.3. In lieu of
delivering certificates for the Acquiring Fund Shares, each Acquiring Fund
shall cause its transfer agent to credit the Acquiring Fund Shares to the
corresponding Interim Transferring Fund's account on the books of the
Acquiring Fund and shall deliver a confirmation thereof to the
corresponding Interim Transferring Fund.
c. Immediately after the Valuation Time and the transfer described in
paragraph 2.2(b), each Interim Transferring Fund shall transfer all of the
shares of the Acquiring Fund to the corresponding Transferring Fund in
complete liquidation of the Interim Transferring Fund and all outstanding
shares of the Interim Transferring Fund shall be cancelled.
2.3 LIABILITIES. Each Transferring Fund will endeavor to discharge all of
its known liabilities and obligations attributable to its Transferring Classes
prior to the Closing Date to the extent reasonably practicable. Each
Transferring Fund will transfer to the corresponding Interim Transferring Fund,
which will assume, any such liabilities and obligations which have not been
discharged prior to the Closing Date as provided for in paragraphs 2.1 and 2.2.
The Acquiring Fund will, in turn, assume all such known liabilities, debts,
obligations and duties of the Interim Transferring Fund.
2.4 DELIVERY OF ASSETS. Each Interim Transferring Fund shall deliver the
Transferred Assets at the closing provided for in paragraph 4.1 (the "Closing")
to the custodian for the corresponding Acquiring Fund (each, a "Custodian"), for
the account of the corresponding Acquiring Class of the corresponding Acquiring
Fund, all securities not in bearer form duly endorsed, or accompanied by duly
executed separate assignments or stock powers, in proper form for transfer, with
signatures guaranteed, and with all necessary stock transfer stamps, sufficient
to transfer good and marketable title thereto (including all accrued interest
and dividends and rights pertaining thereto) to the Custodian for the account of
the corresponding Acquiring Fund free and clear of all liens, encumbrances,
rights, restrictions and claims. All cash delivered shall be in the form of
immediately available funds payable to the order of the Custodian for the
account of the corresponding Acquiring Fund.
2.5 SUBSEQUENT DIVIDENDS OR INTEREST PAYMENTS. Each Transferring Class of
each Transferring Fund will pay or cause to be paid to the corresponding
Acquiring Class of the corresponding Acquiring Fund any dividends or interest
received on or after the Closing Date with respect to any of the Transferred
Assets. Each Transferring Class of each Transferring Fund will transfer to the
corresponding Acquiring Class of the corresponding Acquiring Fund any
distributions, rights or other assets received by (and attributable to the
Transferring Classes of) the Transferring Fund on or after the Closing Date as
distributions on or with respect to any of the Transferred Assets. Such assets
shall be deemed included in the Transferred Assets and shall not be separately
valued.
2.6 DISTRIBUTION OF ACQUIRING FUND SHARES. Immediately following the
transfer in Sections 2.2, 2.3 and 2.4, each Transferring Fund will distribute in
kind pro rata to the holders of record of the shares of the corresponding
Transferring Classes of the corresponding Transferring Fund, determined as of
the Valuation Time, in redemption of such shares of the Transferring
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Classes, the Acquiring Fund Shares received by the Transferring Fund pursuant to
paragraph 2.2. Such distribution will be accomplished by the transfer agent of
each Acquiring Fund transferring the Acquiring Fund Shares then credited to the
account of the corresponding Transferring Funds on the books of the Acquiring
Fund to open accounts on such books in the names of the holders of the
Transferring Funds' shares and representing the respective pro rata number of
the Acquiring Fund Shares due each such shareholder.
2.7 TRANSFER TAXES. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than that of the registered holder of the
redeemed Transferring Fund shares on the books of the Transferring Fund shall,
as a condition of such issuance and transfer, be paid by the person to whom such
Acquiring Fund Shares are to be issued and transferred.
2.8 REPORTING RESPONSIBILITIES. Any reporting responsibility of the
Transferring Funds is and shall remain the responsibility of the Transferring
Funds after the Reorganization.
2.9 EXPENSES. Janus Capital shall bear all expenses incurred in connection
with the Agreement and the transactions contemplated herein.
3. VALUATION
3.1 VALUATION OF THE TRANSFERRED ASSETS. The value of the Transferred
Assets of each Transferring Fund shall be their values computed as of the close
of the regular trading session on the New York Stock Exchange (normally 4:00
p.m., New York City time) on the Closing Date (the "Valuation Time") based on
the Transferring Fund's valuation procedures set forth in the Transferring
Fund's then-current Prospectus and Statement of Additional Information. The
aggregate net asset value of the shares of each Transferring Class of each
Transferring Fund, both full and fractional, issued and outstanding, shall be
equal to (a) the number of Transferring Class shares issued and outstanding at
the Valuation Time, multiplied by (b) the net asset value per share of a
Transferring Class share computed as of the Valuation Time, based on the
Transferring Fund's valuation procedures set forth in the Transferring Fund's
then-current Prospectus and Statement of Additional Information.
3.2 NET ASSET VALUES OF THE ACQUIRING FUNDS. The net asset value of a share
of an Acquiring Class of an Acquiring Fund as of the Valuation Time shall be the
same as net asset value per share of the corresponding Transferring Class shares
of the corresponding Transferring Fund computed as of the Valuation Time in
accordance with paragraph 3.1.
4. CLOSING AND CLOSING DATE
4.1 CLOSING TIME AND PLACE. Subject to the provisions of Section 8 of this
Agreement, the Closing Date shall be February 23, 2007, or such other date as
the parties may mutually agree. All acts taking place on the Closing Date, other
than the acts called for by paragraph 1.3 hereof, shall be deemed to take place
simultaneously as of the close of the regular trading session on the New York
Stock Exchange on the Closing Date unless otherwise provided, notwithstanding
that the Closing shall be held at 4:30 p.m., Mountain time, on the Closing Date
at the offices of Janus Capital, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or
at such other time and/or place as the parties may mutually agree.
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4.2 CUSTODIAN CERTIFICATE. Each Custodian shall deliver at the Closing a
certificate of an authorized officer stating that the Transferred Assets for
each Interim Transferring Fund have been delivered in proper form to each
Acquiring Fund.
4.3 DELAY IN VALUATION. If at the Valuation Time (a) the trading market or
markets for portfolio securities of any Interim Transferring Fund shall be
closed to trading or trading thereon shall be restricted, or (b) trading or the
reporting of trading in such market or markets shall be disrupted so that
accurate appraisal of the value of the Transferred Assets is impracticable, the
Closing Date shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been restored.
4.4 TRANSFER AGENT CERTIFICATES. The transfer agent for the Transferring
Trust shall deliver at the Closing a certificate of an authorized officer
stating that its records contain the names and addresses of all the shareholders
of each Interim Transferring Fund and the number of outstanding shares owned by
each such shareholder immediately prior to the Closing. The transfer agent for
the Acquiring Trust shall issue and deliver to the Secretary of the Transferring
Trust a confirmation, or other evidence satisfactory to the Transferring Trust,
that the shares of each Acquiring Class of each Acquiring Fund to be transferred
to the corresponding Interim Transferring Fund on the Closing Date have been
credited to the Interim Transferring Fund's account on the books of the
Acquiring Fund.
4.5 OTHER DOCUMENTS. At the Closing, each party shall deliver to the other
such bills of sale, checks, assignments, receipts or other documents as such
other party or its counsel may reasonably request.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF THE TRANSFERRING TRUST. The
Transferring Trust represents and warrants to the Acquiring Trust as follows:
a. Structure and Standing. The Transferring Trust is a business trust
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has power to own all of its properties
and assets and to carry out this Agreement.
b. SEC Registration. The Transferring Trust is registered under the
1940 Act as an open-end management investment company, and such
registration has not been revoked or rescinded and is in full force and
effect.
c. Series and Classes. Each Transferring Fund and Transferring Class
is a duly established and designated series and class, respectively, of the
Transferring Trust. On or before the Closing Date, the Transferring Trust
will designate each Interim Transferring Fund as a duly established and
designated series of the Transferring Trust.
d. Prospectus. The current prospectus and statement of additional
information of the Transferring Classes of each Transferring Fund conform
in all material respects to the applicable requirements of the Securities
Act of 1933, as amended (the "1933 Act"), and the 1940 Act and the rules
and regulations of the SEC thereunder and
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do not 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 misleading.
e. Declaration of Trust. The Transferring Trust is not, and the
execution, delivery and performance of this Agreement will not result, in
material violation of the Transferring Trust's Amended and Restated
Agreement and Declaration of Trust dated March 18, 2003, as amended (the
"Declaration of Trust"), or the Trust's By-Laws or of any agreement,
indenture, instrument, contract, lease or other undertaking to which the
Transferring Trust or any Transferring Fund is a party or by which it is
bound.
f. Contracts. The Transferring Trust has no material contracts or
other commitments outstanding (other than this Agreement) that will be
terminated with liability to any Transferring Fund's Transferring Classes
on or prior to the Closing Date.
g. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Transferring Trust with
respect to its Transferring Funds or any of their properties or assets
that, if adversely determined, would materially and adversely affect its
financial condition or the conduct of its business. The Transferring Trust
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 that materially
and adversely affects its business or its ability to consummate the
transactions herein contemplated.
h. Financial Statements. The Statements of Assets and Liabilities of
each Transferring Class of each Transferring Fund for the fiscal years
ended October 31, 2004, 2005 and 2006 have been audited by
PricewaterhouseCoopers, LLP, independent auditors; such financial
statements are in accordance with generally accepted accounting principles,
consistently applied; such statements (copies of which have been furnished
to the Acquiring Trust) fairly reflect the financial condition of the
Transferring Classes of the Transferring Funds as of such dates; and there
are no known contingent liabilities of the Transferring Classes of the
Transferring Funds as of such dates not disclosed therein.
i. No Material Changes. Since October 31, 2006, there has not been any
material adverse change in the Transferring Funds' financial condition,
assets, liabilities or business other than changes occurring in the
ordinary course of business, or any incurrence by any Transferring Fund of
indebtedness maturing more than one year from the date such indebtedness
was incurred.
j. Tax Returns. At the Closing Date, all federal and other tax returns
and reports of the Transferring Funds required by law to have been filed by
such date shall have been filed, and all federal and other taxes shall have
been paid so far as due, or provision shall have been made for the payment
thereof; and, to the best of the Transferring Trust's knowledge, no such
return is currently under audit and no assessment has been asserted with
respect to any such return.
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k. RIC Status. For each taxable year of the Transferring Funds ended
on or prior to the Closing Date, they have met the requirements of
subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"),
for qualification and treatment as a regulated investment company, and will
continue to meet all such requirements for the taxable year that includes
the Closing Date.
l. Shares. All issued and outstanding shares of each Transferring
Class of each Transferring Fund are duly and validly issued and
outstanding, fully paid and nonassessable by the Transferring Fund, except
to the extent that under Massachusetts law shareholders of a business trust
may, under certain circumstances, be held personally liable for its
obligations. All of the issued and outstanding shares of the Interim
Transferring Funds, at the Valuation Time, will be held by the persons and
in the amounts set forth in the records of the transfer agent as provided
in paragraph 4.4. The Interim Transferring Funds do not have outstanding
any options, warrants or other rights to subscribe for or purchase any
shares of any Interim Transferring Fund, nor is there outstanding any
security convertible into any share of any of the Interim Transferring
Funds, except such as are contemplated herein.
m. Authority to Transfer Transferred Assets. On the Closing Date, each
Interim Transferring Fund will have full right, power and authority to
sell, assign, transfer and deliver the Transferred Assets.
n. Authorization. The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by all
necessary action on the part of the Transferring Trust's Board of Trustees;
and, subject to the approval of the shareholders of each Transferring Fund
and assuming due execution and delivery hereof by the Acquiring Trust, this
Agreement will constitute the valid and legally binding obligation of the
Transferring Trust on behalf of its series, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect
thereto, and to general principles of equity and the discretion of the
court (regardless of whether the enforceability is considered in a
proceeding in equity or at law).
o. Proxy Statement. The Proxy Statement (as defined in paragraph 6.3
hereof) (other than information that relates to or has been furnished by
the Acquiring Trust) will, on the mailing date of the Proxy Statement and
on the Closing Date, not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which such
statements were made, not misleading.
5.2 REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING TRUST. The Acquiring
Trust represents and warrants to the Transferring Trust as follows:
a. Structure and Standing. The Acquiring Trust is a statutory trust
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has power to own its properties and assets and to
carry out this Agreement.
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b. SEC Registration. The Acquiring Trust is registered under the 1940
Act as an open-end, management investment company, and, as of the Closing
Date, such registration will not have been revoked or rescinded and will be
in full force and effect.
c. Prospectus. Each Acquiring Fund's prospectus and statement of
additional information that is or will be included in the Acquiring Trust's
registration statement will, at the time the registration statement becomes
effective, conform in all material respects to the applicable requirements
of the 1933 Act, the 1940 Act and the rules and regulations of the SEC
thereunder and will not 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 misleading.
d. Trust Instrument. The Acquiring Trust is not, and the execution,
delivery and performance of this Agreement will not result, in material
violation of its Amended and Restated Trust Instrument dated March 18,
2003, as amended (the "Trust Instrument"), or its By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking to
which it is a party or by which it is bound.
e. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Acquiring Trust or any
of its properties or assets that, if adversely determined, would materially
and adversely affect its financial condition or the conduct of its
business. The Acquiring Trust 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 that materially and adversely affects its business or its
ability to consummate the transactions herein contemplated.
f. Shares. All shares of the Acquiring Trust issued in connection with
the Reorganization will be duly and validly issued and outstanding, fully
paid and nonassessable by the Acquiring Trust, except to the extent that
under Delaware law shareholders of a statutory trust may, under certain
circumstances, be held personally liable for its obligations. The Acquiring
Trust does not have outstanding any options, warrants or other rights to
subscribe for or purchase any shares of the Acquiring Trust, nor is there
outstanding any security convertible into any shares of the Acquiring
Trust, except such as are contemplated herein.
g. Authorization. The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing Date by all
necessary action, if any, on the part of the Acquiring Trust's Board of
Trustees; and, assuming due execution and delivery hereof by the
Transferring Trust, this Agreement will constitute the valid and legally
binding obligation of the Acquiring Trust on behalf of the Acquiring Funds,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
and other similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto,
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and to general principles of equity and the discretion of the court
(regardless of whether the enforceability is considered in a proceeding in
equity or at law).
h. Proxy Statement. The Proxy Statement (only insofar as it relates to
the Acquiring Trust and is based on information furnished by the Acquiring
Trust) will, on the mailing date of the Proxy Statement and on the Closing
Date, not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not misleading.
6. COVENANTS OF THE TRANSFERRING TRUST AND THE ACQUIRING TRUST
6.1 ORDINARY COURSE. The Transferring Trust 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 other distributions in the ordinary
course and on the Closing Date.
6.2 SHAREHOLDER MEETING. The Transferring Trust shall call a meeting of its
Transferring Fund shareholders to consider and act upon this Agreement and to
take all other action necessary to obtain approval of the transactions
contemplated herein.
6.3 PROXY STATEMENT. The Transferring Trust and the Acquiring Trust shall
cooperate in the provision of all information reasonably necessary for the
preparation, filing and mailing of the proxy statement in connection with the
meeting of the Transferring Class shareholders to consider approval of this
Agreement and the transactions contemplated herein (the "Proxy Statement").
6.4 APPROVALS. The Acquiring Trust shall 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 it may deem appropriate in
order to continue its operations after the Closing Date.
6.5 ADDITIONAL ACTIONS. Subject to the provisions of this Agreement, the
Transferring Trust and the Acquiring Trust will each take, or cause to be taken,
all action and do, or cause to be done, all things reasonably necessary, proper
or advisable to consummate and make effective the transactions contemplated
herein.
7. CONDITIONS PRECEDENT
7.1 CONDITIONS PRECEDENT TO OBLIGATION OF THE ACQUIRING TRUST. The
obligations of the Acquiring Trust to consummate the transactions provided for
herein shall be subject, at its election, to the performance by the Transferring
Trust of all the obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, the following conditions:
a. Representation and Warranties. All representations and warranties
of the Transferring Trust 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
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contemplated herein, as of the Closing with the same force and effect as if
made on the Closing Date and as of the Closing.
b. Certificates. The Transferring Trust shall have delivered to the
Acquiring Trust at the Closing a certificate executed in its name by its
President and a Vice President, in form and substance reasonably
satisfactory to the Acquiring Trust, to the effect that the representations
and warranties of the Transferring Trust made in this Agreement are true
and correct at and as of the Closing, except as they may be affected by the
transactions contemplated herein, and as to such other matters as the
Acquiring Trust shall reasonably request.
7.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRANSFERRING TRUST. The
obligations of the Transferring Trust to consummate the transactions provided
for herein shall be subject, at its election, to the performance by the
Acquiring Trust of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
a. Representations and Warranties. All representations and warranties
of the Acquiring Trust 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 herein, as of the Closing
with the same force and effect as if made on the Closing Date and as of the
Closing.
b. Certificate. The Acquiring Trust shall have delivered to the
Transferring Trust at the Closing a certificate executed in its name by its
President and a Vice President, in form and substance reasonably
satisfactory to the Transferring Trust, to the effect that the
representations and warranties of the Acquiring Trust made in this
Agreement are true and correct at and as of the Closing, except as they may
be affected by the transactions contemplated herein, and as to such other
matters as the Transferring Trust shall reasonably request.
7.3 FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRANSFERRING TRUST
AND THE ACQUIRING TRUST. If any of the conditions set forth below does not exist
on or before the Closing Date with respect to the Transferring Trust or the
Acquiring Trust, the other party to this Agreement, at its option, shall not be
required to consummate the transactions contemplated herein.
a. Shareholder Approval. This Agreement and the transactions
contemplated herein shall have been approved by the requisite vote of the
holders of the outstanding shares of each Transferring Fund voting both (i)
together as a fund, and (ii) with regard to holders of the outstanding
shares of each Transferring Class, separately as classes, in accordance
with the provisions of the Transferring Trust's Declaration of Trust and
the 0000 Xxx. If the shareholders of Transferring Classes of some but not
all of the Transferring Funds approve this Agreement and the transactions
contemplated herein, the Board of Trustees of the Transferring Trust or of
the Acquiring Trust may terminate this Agreement pursuant to Section 8 or
may determine to proceed with the Agreement and
11
the transactions with respect to the Transferring Fund for which a
necessary shareholder approval was obtained.
b. Litigation. On the Closing Date, no action, suit or other
proceeding shall be pending 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.
c. Consents and Approvals. All consents of other parties and all other
consents, orders and permits of Federal, state and local regulatory
authorities (including those of the SEC and of state Blue Sky and
securities authorities) deemed necessary by the Transferring Trust or the
Acquiring Trust to permit consummation, in all material respects, of the
transactions contemplated herein 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
Transferring Trust or the Acquiring Trust.
d. Distribution. Each Transferring Class of each Transferring Fund
shall have declared a dividend or dividends that, together with all
previous dividends, shall have the effect of distributing to the
Transferring Fund's shareholders all of its investment company taxable
income, and net interest income excludable from gross income under section
103(a) of the Code, for all its taxable years ended on or prior to the
Closing Date and for its current taxable year through the Closing Date
(computed without regard to any deduction for dividends paid) and any net
capital gain realized in all such taxable years (after reduction for any
capital loss carryforward).
e. Tax Opinion. The Transferring Trust shall have received an opinion
from Vedder, Price, Xxxxxxx & Kammholz, P.C. substantially to the effect
that the Transferring Funds should not recognize any gain or loss for
federal income tax purposes as a result of the in-kind redemption of the
shares of the Transferring Classes pursuant to the Reorganization. Each of
the Transferring Trust, on behalf of the Transferring Funds, and the
Acquiring Trust, on behalf of the Acquiring Funds, shall cooperate in
providing such representations as are requested by counsel to render such
opinion.
f. Amortized Cost and Market Value Deviation. The net asset value per
share of the Transferring Fund calculated using market values shall not
deviate by more than .5 of 1% from the net asset value per share calculated
using amortized cost during the period from the date hereof to the Closing.
8. TERMINATION OF AGREEMENT
8.1 TERMINATION. This Agreement and the transactions contemplated herein
may be terminated and abandoned by resolution of the Board of Trustees of the
Transferring Trust or of the Acquiring Trust, as the case may be, at any time at
or prior to the Closing Date (notwithstanding any vote of shareholders) if: (a)
circumstances should develop that, in the opinion of either such Board, make
proceeding with this Agreement inadvisable; (b) a material breach by the other
party of any representation, warranty or agreement contained therein has
occurred; (c) a condition to the obligation of the terminating party cannot
reasonably be met.
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8.2 EFFECT OF TERMINATION. If this Agreement is terminated and the
Reorganization is abandoned pursuant to the provisions of this Section 8, this
Agreement shall become void and have no effect, without any liability on the
part of either party hereto or the Trustees, officers or shareholders of the
Transferring Trust or of the Acquiring Trust, as the case may be, in respect of
this Agreement. If this Agreement is terminated or the exchange contemplated
herein is abandoned, Janus Capital shall bear all expenses incurred in
connection with this Agreement and the transactions contemplated herein up to
the time of such termination or abandonment.
9. MISCELLANEOUS
9.1 WAIVER. At any time prior to the Closing Date, any of the conditions
set forth in Section 7 may be waived by the Board of Trustees of the
Transferring Trust or of the Acquiring Trust, as the case may be, if, in the
judgment of either, such waiver will not have a material adverse effect on the
benefits intended under this Agreement to the Transferring Trust or the
Acquiring Trust as the case may be.
9.2 CAPTIONS. The captions contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the representations
and warranties included or provided for herein shall survive consummation of the
Reorganization.
9.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter hereof and
merges and supersedes all prior discussions, agreements and understandings of
every kind and nature between them relating to the subject matter hereof.
Neither party shall be bound by any condition, definition, warranty or
representation other than as set forth or provided in this Agreement or as may
be, on or subsequent to the date hereof, set forth in a writing signed by the
party to be bound thereby.
9.5 AUTHORIZATIONS. All agreements, representations, actions and
obligations described herein made or to be taken or undertaken by a Transferring
Fund or an Interim Transferring Fund are made and shall be taken or undertaken
by the Transferring Trust on behalf of the Transferring Fund or the Interim
Transferring Fund. All agreements, representations, actions and obligations
described herein made or to be taken or undertaken by an Acquiring Fund are made
and shall be taken or undertaken by the Acquiring Trust on behalf of the
Acquiring Fund.
9.6 TRUST DISCLOSURE. Copies of the Declaration of Trust of the
Transferring Trust and the Trust Instrument of Acquiring Trust are on file with
the Secretaries of the Transferring Trust and the Acquiring Trust, respectively.
This Agreement is executed by the undersigned officers on behalf of the
Transferring Trust and the Acquiring Trust, respectively, and not on behalf of
such officers or the Trustees of either the Transferring Trust or the Acquiring
Trust as individuals. The respective obligations of the Transferring Trust and
the Acquiring Trust under this Agreement are not binding upon any of their
respective Trustees, officers or shareholders individually.
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9.7 CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to principles of conflict of laws.
9.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
9.9 ASSIGNMENT. 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
either party without the written consent of the other party. Nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the Transferring Trust, on behalf of the Transferring
Funds, and the Acquiring Trust, on behalf of the Acquiring Funds, have caused
this Agreement and Plan of Reorganization to be executed and attested on its
behalf by its duly authorized representatives as of the date first above
written.
JANUS INVESTMENT FUND on behalf of Janus
Money Market Fund and Janus Government
Money Market Fund
ATTEST: /s/ Xxx Xxxxxx By: /s/ Xxxxxx Xxxxxx Xxxxx
----------------------------- ------------------------------------
Asst. Secretary President
JANUS ADVISER SERIES on behalf of Janus
Institutional Money Market Fund and
Janus Institutional Government Money
Market Fund
ATTEST: /s/ Xxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
----------------------------- ------------------------------------
Asst. Secretary Vice President
The undersigned is a party to this Agreement solely for the purpose of Sections
2.9 and 8.2.
JANUS CAPITAL MANAGEMENT LLC
ATTEST: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President and
Chief Financial Officer
---------------------------------
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APPENDIX A TO AGREEMENT AND PLAN OF REORGANIZATION
INTERIM TRANSFERRING FUND/CLASS
TRANSFERRING FUND/CLASS (EACH A SERIES (EACH A SERIES OF JANUS INVESTMENT ACQUIRING FUND/CLASS (EACH A SERIES
OF JANUS INVESTMENT FUND) FUND) OF JANUS ADVISER SERIES)
-------------------------------------- ---------------------------------- -------------------------------------
JANUS MONEY MARKET FUND JANUS INTERIM MONEY MARKET FUND JANUS INSTITUTIONAL MONEY MARKET FUND
Institutional Shares Institutional Shares Institutional Shares
Service Shares Service Shares Service Shares
JANUS GOVERNMENT MONEY JANUS INTERIM GOVERNMENT MONEY JANUS INSTITUTIONAL GOVERNMENT MONEY
MARKET FUND MARKET FUND MARKET FUND
Institutional Shares Institutional Shares Institutional Shares
Service Shares Service Shares Service Shares
15
