EXHIBIT 8(e)
FORM OF
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this ___ day of _____________, 200_, by and among Janus Adviser Series, a
Delaware statutory trust, with its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000-0000 (the "Acquiring Trust"), with respect to
Janus Adviser Small Cap Value Fund, a newly created shell series of the
Acquiring Trust (the "Acquiring Fund"), and Xxxxxx Investment Portfolio Trust, a
Delaware statutory trust, with its principal place of business at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Selling Trust"), with respect to Xxxxxx
Small Cap Value Fund II, a series of the Trust (the "Selling Fund"), and Janus
Capital Management LLC ("Janus"), the investment adviser to the Acquiring Fund
(for purposes of paragraph 9.1 of the Agreement only).
The Selling Fund intends to change its identity through a
"reorganization" within the meaning of Section 368(a)(1)(F) of the United States
Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury
Regulations promulgated thereunder. The reorganization will consist of: (i) the
transfer of all of the assets of the Selling Fund in exchange for full and
fractional Class I Shares of beneficial interest, $.001 par value per share, of
the Acquiring Fund ("Acquiring Fund Shares") to be issued by the Acquiring
Trust, having an aggregate net asset value equal to the total net asset value of
Investor, Institutional and Service Shares of the Selling Fund; (ii) the
assumption by the Acquiring Fund of all of the liabilities of the Selling Fund;
and (iii) the distribution, after the Closing Date (as defined in paragraph 3.1)
hereinafter referred to, of the Acquiring Fund Shares to the shareholders of the
Selling Fund and the termination, dissolution and complete liquidation of the
Selling Fund as provided herein, all upon the terms and conditions set forth in
this Agreement (the "Reorganization").
WHEREAS, the Acquiring Fund and the Selling Fund are separate series of
the Acquiring Trust and Selling Trust, respectively, and the Acquiring Trust and
the Selling Trust are open-end, registered management investment companies and
the Selling Fund owns securities that generally are assets of the character in
which the Acquiring Fund is permitted to invest;
WHEREAS, the Acquiring Fund was established by the Acquiring Trust for
the purpose of acquiring the assets of the Selling Fund, and is authorized to
issue its shares of beneficial interest (although none have been issued) at an
initial net asset value per share of $10.00;
WHEREAS, the Trustees of the Acquiring Trust have determined that the
Reorganization, with respect to the Acquiring Fund, is in the best interests of
the Acquiring Fund;
WHEREAS, the Trustees of the Selling Trust have determined that the
Reorganization, with respect to the Selling Fund, is in the best interests of
the Selling Fund and that the interests of the existing shareholders of the
Selling Fund will not be diluted as a result of the Reorganization;
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
ARTICLE I
TRANSFER OF ASSETS OF THE SELLING FUND IN EXCHANGE FOR ACQUIRING
FUND SHARES AND THE ASSUMPTION OF THE SELLING FUND'S LIABILITIES
AND LIQUIDATION OF THE SELLING FUND
1.1 THE EXCHANGE. Subject to the terms and conditions contained herein
and on the basis of the representations and warranties contained herein, the
Selling Fund agrees to transfer all of its assets, as set forth in paragraph
1.2, to the Acquiring Fund. In exchange, the Acquiring Fund agrees: (i) to
deliver to the Selling Fund the number of full and fractional Acquiring Fund
Shares, as set forth in paragraphs 1.7 and 2.3; and (ii) to assume all of the
liabilities of the Selling Fund. Such transactions shall take place at the
closing (the "Closing") provided for in paragraph 3.1.
1.2 ASSETS TO BE ACQUIRED. The assets of the Selling Fund to be
acquired by the Acquiring Fund shall consist of all property, including, without
limitation, all cash, securities, commodities, interests in futures and
dividends or interest receivables, owned by the Selling Fund and any deferred or
prepaid expenses shown as an asset on the books of the Selling Fund on the
Closing Date.
The Selling Fund has provided the Acquiring Fund with its most recent
audited financial statements, which contain a list of all of the Selling Fund's
assets as of the date of such statements. The Selling Fund hereby represents
that, as of the date of the execution of this Agreement, there have been no
changes in its financial position as reflected in such financial statements
other than those occurring in the ordinary course of business in connection with
the purchase and sale of securities, the issuance and redemption of Selling Fund
shares and the payment of normal operating expenses, dividends and capital gains
distributions.
1.3 LIABILITIES TO BE ASSUMED. The Acquiring Fund shall assume all of
the Selling Fund's liabilities, debts, obligations and duties of whatever kind
or nature, whether absolute, accrued, contingent or otherwise, whether or not
arising in the ordinary course of business, whether or not determinable at the
Closing Date and whether or not specifically referred to in this Agreement. The
Selling Fund's liabilities specifically include obligations to the independent
Trustees of the Selling Trust under any deferred compensation plan.
1.4 STATE FILINGS. Prior to the Closing Date, the Selling Trust shall
make any filings with the State of Delaware that may be required under the laws
of the State of Delaware, effective as of the Closing Date.
1.5 LIQUIDATION AND DISTRIBUTION. On or as soon after the Closing Date
as is conveniently practicable, but in no event later than 12 months after the
Closing Date (the "Liquidation Date"): (a) the Selling Fund will distribute in
complete liquidation of the Selling Fund, to its shareholders of record,
determined as of the close of business on the Valuation Date (as defined in
paragraph 2.1) (the "Selling Fund Shareholders"), all of the Acquiring Fund
Shares
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received by the Selling Fund pursuant to paragraph 1.1 in accordance with
paragraph 1.7; and (b) the Selling Fund will thereupon proceed to dissolve and
terminate as set forth in paragraph 1.10 below. Such distribution will be
accomplished by the transfer of Acquiring Fund Shares credited to the account of
the Selling Fund on the books of the Acquiring Fund to open accounts on the
share records of the Acquiring Fund in the name of the Selling Fund Shareholders
and representing the respective number of Acquiring Fund Shares due such
shareholders, as determined in paragraph 1.7. The Acquiring Fund shall assume
the share records received from the Selling Fund are valid, current and accurate
and that such transfers to shareholders are valid, proper and correct. All
issued and outstanding shares of the Selling Fund will simultaneously be
canceled on the books of the Selling Fund. The Acquiring Fund shall not issue
certificates representing Acquiring Fund Shares in connection with such
transfer.
1.6 OWNERSHIP OF SHARES. Ownership of Acquiring Fund Shares will be
shown on the books of the Acquiring Fund's transfer agent and shares will be
simultaneously issued to the Selling Fund to be distributed to Selling Fund
Shareholders.
1.7 DISTRIBUTION OF ACQUIRING FUND SHARES. The total number of
Acquiring Fund Shares issued to the Selling Fund pursuant to paragraph 2.3 shall
be allocated among the three classes of the Selling Fund as follows: (i) with
respect to the Institutional Share Class, that portion of full and fractional
Acquiring Fund Shares equal to the ratio of the net asset value of all
Institutional Shares of the Selling Fund outstanding divided by the total net
asset value of all Selling Fund Shares outstanding; (ii) with respect to the
Investor Share Class, that portion of full and fractional Acquiring Fund Shares
equal to the ratio of the net asset value of all Investor Shares of the Selling
Fund outstanding divided by the total net asset value of all Selling Fund Shares
outstanding; and (iii) with respect to the Service Share Class, that portion of
full and fractional Acquiring Fund Shares equal to the ratio of the net asset
value of all Service Shares of the Selling Fund outstanding divided by the total
net asset value of all Selling Fund Shares outstanding.
The allocated Acquiring Fund Shares shall be distributed pro rata to
Selling Fund Shareholders on a per class basis. Each Selling Fund Shareholder
shall be entitled to the number of full and fractional Acquiring Fund Shares
allocated to the applicable class equal to the ratio of the number of Selling
Fund Shares of the applicable class held by such Shareholder, divided by the
number of Selling Fund Shares outstanding of such class.
1.8 TRANSFER TAXES. Any transfer taxes payable upon the issuance of
Acquiring Fund Shares in a name other than the registered holder of the Selling
Fund shares on the books of the Selling Fund as of that time 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.
1.9 REPORTING RESPONSIBILITY. Any reporting responsibility of the
Selling Fund, including, without limitation, the responsibility for filing of
regulatory reports, tax returns or other documents with the Securities and
Exchange Commission (the "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 Selling Fund.
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1.10 TERMINATION AND DISSOLUTION. The Selling Fund shall be terminated
and dissolved promptly following the Closing Date and the making of all
distributions pursuant to paragraph 1.5.
1.11 BOOKS AND RECORDS. All books and records of the Selling Fund,
including all books and records required to be maintained under the Investment
Company Act of 1940 (the "1940 Act") and the rules and regulations thereunder,
shall be available to the Acquiring Fund from and after the Closing Date and
shall be turned over to the Acquiring Fund as soon as practicable following the
Closing Date.
ARTICLE II
VALUATION
2.1 VALUATION OF ASSETS. The value of the Selling Fund's assets to be
acquired by the Acquiring Fund hereunder, and the net asset value per share of
Institutional, Investor and Service Class Shares of the Selling Fund,
respectively, shall be determined as of the close of regular trading on the New
York Stock Exchange ("NYSE") on the business day immediately prior to the
Closing Date (such time and date being hereinafter called the "Valuation Date"),
using the valuation procedures set forth in the trust instrument of the Selling
Trust and the Selling Fund's then-current prospectus and statement of additional
information or such other valuation procedures as shall be mutually agreed upon
by the parties.
2.2 VALUATION OF SHARES. On the Closing Date, the net asset value per
share of Acquiring Fund Shares shall be $10.00.
2.3 SHARES TO BE ISSUED. The number of full and fractional Acquiring
Fund Shares to be issued in exchange for the Selling Fund's assets shall be
equal to the value of all the assets, less the amount of liabilities, of the
Selling Fund, using the valuation procedures referred to in paragraph 2.1,
divided by the net asset value of an Acquiring Fund Share.
2.4 DETERMINATION OF VALUE. All computations of value shall be made by
or under the direction of each Fund's respective accounting agent, if
applicable, in accordance with its regular practice and the requirements of the
1940 Act.
ARTICLE III
CLOSING AND THE CLOSING DATE
3.1 CLOSING DATE. The Closing shall occur on March 24, 2003, or such
other date(s) as the parties may agree to in writing (the "Closing Date").
Unless otherwise provided, all acts taking place at the Closing shall be deemed
to take place as of immediately after the close of regular trading on the
Valuation Date. The Closing shall be held at the offices of Vedder, Price,
Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other time and/or place as the parties may agree.
3.2 CUSTODIAN'S CERTIFICATE. The Selling Fund shall cause its
Custodian, State Street Bank and Trust Company (the "Custodian"), to deliver at
the Closing a certificate of
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an authorized officer stating that: (a) the Selling Fund's portfolio securities,
cash and any other assets have been delivered in proper form to the Acquiring
Fund on the Closing Date; and (b) all necessary taxes including all applicable
federal and state stock transfer stamps, if any, have been paid, or provision
for payment shall have been made, in conjunction with the delivery of portfolio
securities by the Selling Fund.
3.3 EFFECT OF SUSPENSION IN TRADING. In the event that, on the
Valuation Date, either: (a) the NYSE or another primary exchange on which the
portfolio securities of the Acquiring Fund or the Selling Fund are purchased or
sold shall be closed to trading or trading on such exchange shall be restricted;
or (b) trading or the reporting of trading on the NYSE or elsewhere shall be
disrupted so that accurate appraisal of the value of the net assets of the
Acquiring Fund or the Selling Fund is impracticable, the Valuation Date shall be
postponed until the first business day after the day when trading is fully
resumed and reporting is restored.
3.4 TRANSFER AGENT'S CERTIFICATE. The Selling Fund shall cause its
transfer agent, DST Systems, Inc., to deliver at the Closing a certificate of an
authorized officer stating that its records contain the names and addresses of
Selling Fund Shareholders as of the Closing Date, and the number, class and
percentage ownership of outstanding shares owned by each such shareholder
immediately prior to the Closing. The Acquiring Fund shall issue and deliver or
cause Janus Services LLC, its transfer agent, to issue and deliver a
confirmation evidencing Acquiring Fund Shares to be credited on the Closing Date
to the Secretary of the Selling Trust or provide evidence satisfactory to the
Selling Fund that the Acquiring Fund Shares have been credited to the Selling
Fund's account on the books of the Acquiring Fund. At the Closing, each party
shall deliver to the other such bills of sale, checks, assignments, share
certificates, receipts and other documents, if any, as such other party or its
counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS OF THE SELLING FUND. The Selling Trust, on behalf
of the Selling Fund, represents and warrants to the Acquiring Trust, on behalf
of the Acquiring Fund, as follows:
(a) The Selling Fund is a legally designated, separate series of a
statutory trust that is duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) The Selling Trust is registered as an open-end management
investment company under the 1940 Act, and the Selling Trust's registration with
the Commission as an investment company under the 1940 Act is in full force and
effect.
(c) The current prospectus and statement of additional information
of the Selling Fund conform in all material respects to the applicable
requirements of the Securities Act of 1933 (the "1933 Act") and the 1940 Act and
the rules and regulations thereunder and do not include any untrue statement of
a material fact or omit to state any material fact required to be
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stated or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) The Selling Fund is not in violation of, and the execution,
delivery and performance of this Agreement (subject to shareholder approval)
will not result in the violation of, any provision of the Selling Trust's trust
instrument or bylaws or of any material agreement, indenture, instrument,
contract, lease or other undertaking to which the Selling Fund is a party or by
which it is bound.
(e) The Selling Fund has no material contracts or other commitments
(other than this Agreement) that will be terminated with liability to it before
the Closing Date, except for liabilities, if any, to be discharged or reflected
in the Statement of Assets and Liabilities as provided in paragraph 1.2 hereof.
(f) Except as otherwise disclosed in writing to and accepted by the
Acquiring Fund, no litigation, administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its knowledge
threatened against the Selling Fund or any of its properties or assets that, if
adversely determined, would materially and adversely affect its financial
condition, the conduct of its business or the ability of the Selling Fund to
carry out the transactions contemplated by this Agreement. The Selling 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 that materially and
adversely affects its business or its ability to consummate the transactions
contemplated herein.
(g) The financial statements of the Selling Fund as of September
30, 2002 and for the fiscal year then ended have been prepared in accordance
with generally accepted accounting principles and have been audited by
independent auditors, and such statements (copies of which have been furnished
to the Acquiring Fund) fairly reflect the financial condition of the Selling
Fund as of September 30, 2002, and there are no known contingent liabilities of
the Selling Fund as of such date that are not disclosed in such statements.
(h) Since the date of the financial statements referred to in
paragraph (g) above, there have been no material adverse changes in the Selling
Fund's financial condition, assets, liabilities or business (other than changes
occurring in the ordinary course of business), or any incurrence by the Selling
Fund of indebtedness maturing more than one year from the date such indebtedness
was incurred, except as otherwise disclosed to and accepted by the Acquiring
Fund. For the purposes of this paragraph (h), a decline in the net asset value
of the Selling Fund shall not constitute a material adverse change.
(i) All federal and other tax returns and reports of the Selling
Fund required by law to be filed have been filed, and all federal and other
taxes shown due on such returns and reports have been paid, or provision shall
have been made for the payment thereof. To the best of the Selling Fund's
knowledge, no such return is currently under audit, and no assessment has been
asserted with respect to such returns.
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(j) All issued and outstanding shares of the Selling Fund are duly
and validly issued and outstanding, fully paid and nonassessable by the Selling
Fund. All of the issued and outstanding shares of the Selling Fund will, at the
time of the Closing Date, be held by the persons and in the amounts set forth in
the records of the Selling Fund's transfer agent as provided in paragraph 3.4.
The Selling Fund has no outstanding options, warrants or other rights to
subscribe for or purchase any of the Selling Fund shares and has no outstanding
securities convertible into any of the Selling Fund shares.
(k) At the Closing Date, the Selling Fund will have good and
marketable title to the Selling Fund's assets to be transferred to the Acquiring
Fund pursuant to paragraph 1.2 and full right, power and authority to sell,
assign, transfer and deliver such assets hereunder, free of any lien or other
encumbrance, except those liens or encumbrances to which the Acquiring Fund has
received notice, and, upon delivery and payment for such assets and the filing
of any documents that may be required under Delaware state law, the Acquiring
Fund will acquire good and marketable title, subject to no restrictions on the
full transfer of such assets, other than such restrictions as might arise under
the 1933 Act and other than as disclosed to and accepted by the Acquiring Fund.
(l) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the Selling Fund.
Subject to approval by the Selling Fund Shareholders, this Agreement constitutes
a valid and binding obligation of the Selling 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 information to be furnished by the Selling Fund for use in
no-action letters, applications for orders, registration statements, proxy
materials and other documents that may be necessary in connection with the
transactions contemplated herein shall be accurate and complete in all material
respects and shall comply in all material respects with federal securities and
other laws and regulations.
(n) From the time of the meeting of the Selling Fund Shareholders
and on the Closing Date, any written information furnished by the Selling Trust
with respect to the Selling Fund for use in the Proxy Materials (as defined in
paragraph 5.8) or any other materials provided in connection with the
Reorganization does not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated or necessary to make
the statements, in light of the circumstances under which such statements were
made, not misleading.
(o) The Selling Fund has elected to qualify and has qualified as a
"regulated investment company" under the Code (a "RIC") as of and since its
first taxable year; has been a RIC under the Code at all times since the end of
its first taxable year when it so qualified; and qualifies and will continue to
qualify as a RIC under the Code for its taxable year ending upon its
liquidation.
(p) No governmental consents, approvals, authorizations or filings
are required under the 1933 Act, the Securities Exchange Act of 1934 (the "1934
Act"), the
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1940 Act or Delaware state law for the execution of this Agreement by the
Selling Trust, for itself and on behalf of the Selling Fund, except for the
filing of any documents that may be required under Delaware state law and except
for such other consents, approvals, authorizations and filings as have been made
or received and such consents, approvals, authorizations and filings as may be
required subsequent to the Closing Date, it being understood, however, that this
Agreement and the transactions contemplated herein must be approved by the
shareholders of the Selling Fund as described in paragraph 5.2.
4.2 REPRESENTATIONS OF THE ACQUIRING FUND. The Acquiring Trust, on
behalf of the Acquiring Fund, represents and warrants to the Selling Trust, on
behalf of the Selling Fund, as follows:
(a) The Acquiring Trust is registered as an open-end management
investment company under the 1940 Act, and the Acquiring Trust's registration
with the Commission as an investment company under the 1940 Act is in full force
and effect.
(b) Before the Closing Date, the Acquiring Fund will be a duly
established and designated series of the Acquiring Trust, a statutory trust that
is duly organized, validly existing and in good standing under the laws of the
State of Delaware, and will have power to carry on its business as it is now
being conducted and to carry out this Agreement.
(c) The Acquiring Fund has not commenced operations and will not do
so until after the Closing.
(d) The Acquiring Fund is not in violation of, and the execution,
delivery and performance of this Agreement will not result in a violation of,
the Acquiring Trust's trust instrument or bylaws or of any material agreement,
indenture, instrument, contract, lease or other undertaking to which the
Acquiring Fund is a party or by which it is bound.
(e) Except as otherwise disclosed in writing to and accepted by the
Selling Fund, no litigation, administrative proceeding or investigation of or
before any court or governmental body is presently pending or to its knowledge
threatened against the Acquiring Fund or any of its properties or assets which,
if adversely determined, would materially and adversely affect its financial
condition, the conduct of its business or the ability of the Acquiring Fund to
carry out the transactions contemplated by this Agreement. The Acquiring Fund
knows of no facts that might form the basis for the institution of such
proceedings and it 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 transaction
contemplated herein.
(f) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of the Acquiring Fund,
and this Agreement constitutes a valid and binding obligation 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.
(g) Acquiring Fund Shares to be issued and delivered to the Selling
Fund for the account of the Selling Fund Shareholders pursuant to the terms of
this Agreement will, at the
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Closing Date, have been duly authorized. When so issued and delivered, such
shares will be duly and validly issued Acquiring Fund Shares and will be fully
paid and nonassessable.
(h) The information to be furnished by the Acquiring Fund for use
in no-action letters, applications for orders, registration statements, proxy
materials and other documents that may be necessary in connection with the
transactions contemplated herein shall be accurate and complete in all material
respects and shall comply in all material respects with federal securities and
other laws and regulations.
(i) From the time of the meeting of the Selling Fund Shareholders
and on the Closing Date, any written information furnished by the Acquiring
Trust with respect to the Acquiring Fund for use in the Proxy Materials (as
defined in paragraph 5.8), or any other materials provided in connection with
the Reorganization, does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary to make the statements, in light of the circumstances under which such
statements were made, not misleading.
(j) The Acquiring Fund will be a "fund" as defined in section
851(g)(2) of the Code and will meet all the requirements of Subchapter M for
qualification and treatment as a RIC for its taxable year that includes the
Closing Date and shall continue to qualify as a RIC under the Code.
(k) No governmental consents, approvals, authorizations or filings
are required under the 1933 Act, the 1934 Act, the 1940 Act or Delaware state
law for the execution of this Agreement by the Acquiring Trust, for itself and
on behalf of the Acquiring Fund, or the performance of the Agreement by the
Acquiring Trust, for itself and on behalf of the Acquiring Fund, except for the
filing of any documents that may be required under Delaware state law and such
other consents, approvals, authorizations and filings as have been made or
received and except for such consents, approvals, authorizations and filings as
may be required subsequent to the Closing Date.
(l) The Acquiring Fund agrees to use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940 Act
and any state blue sky or securities laws as it may deem appropriate in order to
continue its operations after the Closing Date.
ARTICLE V
COVENANTS OF THE ACQUIRING FUND AND THE SELLING FUND
5.1 OPERATION IN ORDINARY COURSE. Subject to paragraph 8.5, the Selling
Fund will operate its business in the ordinary course between the date of this
Agreement and the Closing Date, it being understood that such ordinary course of
business will include customary dividends and shareholder purchases and
redemptions. No party shall take any action that would, or reasonably would be
expected to, result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect.
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5.2 APPROVAL OF SHAREHOLDERS. The Selling Trust will call a special
meeting of Selling Fund Shareholders to consider and act upon this Agreement (or
transactions contemplated hereby) and to take all other appropriate action
necessary to obtain approval of the transactions contemplated herein.
5.3 INVESTMENT REPRESENTATION. The Selling Fund covenants that the
Acquiring Fund Shares to be issued pursuant to this Agreement are not being
acquired for the purpose of making any distribution, other than in connection
with the Reorganization and in accordance with the terms of this Agreement.
5.4 ACCESS TO BOOKS AND RECORDS. Upon reasonable notice, the Acquiring
Trust's officers and agents shall have reasonable access to the Selling Fund's
books and records necessary to maintain current knowledge of the Selling Fund
and to ensure that the representations and warranties made by the Selling Fund
are accurate.
5.5 ADDITIONAL INFORMATION. The Selling Fund will assist the Acquiring
Fund in obtaining such information as the Acquiring Fund reasonably requests
concerning the beneficial ownership of the Selling Fund's shares.
5.6 FURTHER ACTION. Subject to the provisions of this Agreement, the
Acquiring Fund and the Selling Fund 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, including any actions required to be taken after the Closing Date. In
particular, the Selling Fund covenants that it will, as and when reasonably
requested by the Acquiring Fund, execute and deliver or cause to be executed and
delivered all such assignments and other instruments and will take or cause to
be taken such further action as the Acquiring Fund may reasonably deem necessary
or desirable in order to vest in and confirm the Acquiring Fund's title to and
possession of all the assets and otherwise to carry out the intent and purpose
of this Agreement.
5.7 STATEMENT OF EARNINGS AND PROFITS. As promptly as practicable, but
in any case within sixty (60) days after the Closing Date, the Selling Fund
shall furnish the Acquiring Fund, in such form as is reasonably satisfactory to
the Acquiring Fund, a statement of the earnings and profits of the Selling Fund
for federal income tax purposes that will be carried over by the Acquiring Fund
as a result of Section 381 of the Code, and which will be certified by the
Selling Trust's Treasurer.
5.8 PREPARATION OF PROXY STATEMENT. The Selling Fund will prepare a
proxy statement (the "Proxy Statement") on Schedule 14A of the 1934 Act relating
to the transactions contemplated by this Agreement. The Proxy Statement shall be
in compliance with the 1933 Act, the 1934 Act and the 1940 Act, as applicable.
Each party will provide the other party with the materials and information
necessary to prepare the Proxy Statement of the Selling Fund (the "Proxy
Materials"), for inclusion therein, in connection with the meeting of the
Selling Fund Shareholders to consider the approval of this Agreement and the
transactions contemplated herein.
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5.9 LIABILITY INSURANCE. For the period beginning at the Closing Date
and ending not less than five years thereafter, the Acquiring Trust, its
successors or assigns shall provide, or cause to be provided, reasonable
liability insurance covering the actions of the former independent trustees of
the Selling Trust for the period they served as such. The Acquiring Trust shall
ensure that the members of the newly created advisory board are covered persons
under the current liability insurance policies of the Acquiring Trust for the
duration of the advisory board and shall use commercially reasonable efforts to
maintain such coverage for three years thereafter.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLING FUND
The obligations of the Selling Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Acquiring Fund of all the obligations to be performed by the Acquiring Fund
pursuant to this Agreement on or before the Closing Date and, in addition,
subject to the following conditions:
6.1 All representations, covenants and warranties of the Acquiring Fund
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date, with the same force and effect
as if made on and as of the Closing Date. The Acquiring Fund shall have
delivered to the Selling Fund a certificate executed in the Acquiring Fund's
name by the Acquiring Trust's President or Vice President and its Treasurer or
Assistant Treasurer, in form and substance satisfactory to the Selling Fund and
dated as of the Closing Date, to such effect and as to such other matters as the
Selling Fund shall reasonably request.
6.2 The Selling Fund shall have received on the Closing Date an opinion
of Vedder, Price, Xxxxxxx & Kammholz, dated as of the Closing Date, in a form
reasonably satisfactory to the Selling Fund, covering the following points:
(a) The Acquiring Trust is a statutory trust validly existing under
the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and delivered
by the Acquiring Trust on behalf of the Acquiring Fund and, assuming due
authorization, execution and delivery of this Agreement by the Selling Trust, is
a valid and binding obligation of the Acquiring Trust on behalf of the Acquiring
Fund enforceable against the Acquiring Fund in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and to general equity principles.
(c) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated herein will not, result in a
violation of the Acquiring Trust's trust instrument or bylaws.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND
The obligations of the Acquiring Fund to consummate the transactions
provided for herein shall be subject, at its election, to the performance by the
Selling Fund of all the obligations to be performed by the Selling Fund pursuant
to this Agreement on or before the Closing Date and, in addition, shall be
subject to the following conditions:
7.1 All representations, covenants and warranties of the Selling Fund
contained in this Agreement shall be true and correct in all material respects
as of the date hereof and as of the Closing Date, with the same force and effect
as if made on and as of the Closing Date. The Selling Fund shall have delivered
to the Acquiring Fund on the Closing Date a certificate executed in the Selling
Fund's name by the Selling Trust's President or Vice President and the Treasurer
or Assistant Treasurer, in form and substance satisfactory to the Acquiring Fund
and dated as of the Closing Date, to such effect and as to such other matters as
the Acquiring Fund shall reasonably request.
7.2 The Selling Fund shall have delivered to the Acquiring Fund a
statement of the Selling Fund's assets and liabilities, together with a list of
the Selling Fund's portfolio securities showing the tax costs of such securities
by lot and the holding periods of such securities, as of the Closing Date,
certified by the Treasurer of the Selling Trust.
7.3 The Acquiring Fund shall have received on the Closing Date an
opinion of Vedder, Price, Xxxxxxx & Kammholz, dated as of the Closing Date, in a
form reasonably satisfactory to the Acquiring Fund, covering the following
points:
(a) The Selling Trust is a statutory trust validly existing under
the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and delivered
by the Selling Trust on behalf of the Selling Fund and, assuming due
authorization, execution and delivery of this Agreement by the Acquiring Trust
on behalf of the Acquiring Fund, is a valid and binding obligation of the
Selling Trust on behalf of the Selling Fund enforceable against the Selling Fund
in accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and to general equity
principles.
(c) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, result in a
violation of the Selling Trust's trust instrument (assuming shareholder approval
has been obtained) or bylaws.
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ARTICLE VIII
FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING
FUND AND SELLING FUND
If any of the conditions set forth below do not exist on or before the
Closing Date with respect to the Selling Fund or the Acquiring Fund, the other
party to this Agreement shall, at its option, not be required to consummate the
transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein, with
respect to the Selling Fund, shall have been approved by the requisite vote of
the holders of the outstanding shares of the Selling Fund in accordance with the
provisions of the Selling Trust's trust instrument and bylaws, applicable
Delaware state law and the 1940 Act. Certified copies of the resolutions
evidencing such approval shall have been delivered to the Acquiring Fund.
Notwithstanding anything herein to the contrary, neither the Acquiring Fund nor
the Selling Fund may waive the conditions set forth in this paragraph 8.1.
8.2 The Acquiring Trust, on behalf of and with respect to the Acquiring
Fund, shall have entered into or adopted any and all agreements necessary for
the Acquiring Fund's operation as a series of an open-end investment company.
8.3 Before the Closing, the shareholders of the Selling Trust shall
have elected a new board of Trustees, as specified in the Proxy Statement, to
take office immediately prior to the Closing and will serve until the Closing of
the Reorganization.
8.4 Immediately upon delivery to the Selling Fund of the Acquiring Fund
Shares, the individual Trustees of the Selling Fund or any officer duly
authorized by them, on the Acquiring Fund's behalf as the then sole shareholder
of the Acquiring Fund, shall have voted for the following as approved by Selling
Fund Shareholders: (i) ratification as Trustees of the Acquiring Trust the
persons who currently serve as Trustees of the Selling Trust; (ii) an investment
advisory agreement with Janus, (iii) a sub-advisory agreement between Janus and
Bay Isle Financial LLC; (iv) a Distribution and Shareholder Servicing Plan under
Rule 12b-1 under the 1940 Act and (v) the adoption of revised fundamental
policies as described in the Proxy Statement distributed in connection with the
special meeting of Selling Fund Shareholders.
8.5 All required consents of other parties and all other consents,
orders and permits of federal, state and local regulatory authorities (including
those of the Commission and of state securities authorities, including any
necessary "no-action" positions and exemptive orders from such federal
authorities) to permit consummation 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 Acquiring Fund or the Selling Fund, provided that either party
hereto may waive any such conditions for itself.
8.6 The post-effective amendment to the Acquiring Trust's Registration
Statement on Form N-1A relating to the Acquiring Fund under the 1933 Act and the
1940 Act, as applicable, shall have become effective, and any additional
post-effective amendments to such Registration Statement as are determined by
the Trustees of the Acquiring Trust to be necessary and
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appropriate shall have been filed with the Commission and shall have become
effective. To the best knowledge of the parties to this Agreement, no
investigation or proceeding for that purpose shall have been instituted or be
pending, threatened or contemplated under the 0000 Xxx.
8.7 The parties shall have received an opinion of Vedder, Price,
Xxxxxxx & Kammholz addressed to the Acquiring Fund and the Selling Fund
substantially to the effect that, based on certain facts, assumptions and
representations of the parties, for federal income tax purposes:
(a) the transfer of all of the Selling Fund's assets in exchange
for Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the
liabilities of the Selling Fund (followed by the distribution of Acquiring Fund
Shares to the Selling Fund Shareholders in dissolution and liquidation of the
Selling Fund) will constitute a "reorganization" within the meaning of Section
368(a)(1) of the Code and the Acquiring Fund and the Selling Fund will each be a
"party to a reorganization" within the meaning of Section 368(b) of the Code;
(b) no gain or loss will be recognized by the Acquiring Fund upon
the receipt of the assets of the Selling Fund solely in exchange for Acquiring
Fund Shares and the assumption by the Acquiring Fund of all of the liabilities
of the Selling Fund;
(c) no gain or loss will be recognized by the Selling Fund upon the
transfer of the Selling Fund's assets to the Acquiring Fund solely in exchange
for Acquiring Fund Shares and the assumption by the Acquiring Fund of all of the
liabilities of the Selling Fund or upon the distribution (whether actual or
constructive) of Acquiring Fund Shares to the Selling Fund Shareholders in
exchange for such shareholders' shares of the Selling Fund;
(d) no gain or loss will be recognized by the Selling Fund
Shareholders upon the exchange of their Selling Fund shares for Acquiring Fund
Shares in the Reorganization;
(e) the aggregate tax basis of Acquiring Fund Shares received by
each Selling Fund Shareholder pursuant to the Reorganization will be the same as
the aggregate tax basis of the Selling Fund shares exchanged therefor by such
shareholder. The holding period of Acquiring Fund Shares to be received by the
Selling Fund Shareholder will include the period during which the Selling Fund
shares exchanged therefor were held by such shareholder, provided the Selling
Fund shares are held as capital assets at the time of the Reorganization; and
(f) the tax basis of the Selling Fund's assets acquired by the
Acquiring Fund will be the same as the tax basis of such assets to the Selling
Fund immediately before the Reorganization. The holding period of the assets of
the Selling Fund in the hands of the Acquiring Fund will include the period
during which those assets were held by the Selling Fund.
Such opinion shall be based on customary assumptions and such
representations as Vedder, Price, Xxxxxxx & Kammholz may reasonably request, and
the Selling Fund and the Acquiring Fund will cooperate to make and certify the
accuracy of such representations. Notwithstanding anything herein to the
contrary, neither the Acquiring Fund nor the Selling Fund may waive the
condition set forth in this paragraph 8.7.
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8.8 The Acquiring Trust's Trustees shall have approved the
establishment of an advisory board comprised of at least four of the former
independent Trustees of the Selling Trust.
ARTICLE IX
EXPENSES
9.1 Janus will pay reasonable expenses associated with the Acquiring
Fund's and the Selling Fund's participation in the Reorganization, including but
not limited to: (a) expenses associated with the preparation and filing of the
Proxy Materials; (b) postage; (c) printing; (d) accounting fees; (e) legal fees
incurred by each Fund (including fees of counsel to, and independent consultants
retained by, the independent Trustees); (f) solicitation costs of the
transaction; (g) fees payable to the independent Trustees for participation in
any special meetings related to the Reorganization; and (h) other related
administrative or operational costs, including the cost (if any) of continuation
of directors' and officers'/errors and omissions insurance for the independent
Trustees of the Selling Trust and obtaining directors' and officers'/errors and
omissions insurance for the advisory board contemplated by paragraph 8.8.
9.2 The Acquiring Trust and the Selling Trust, on behalf of the
Acquiring Fund and the Selling Fund, respectively, represent and warrant that
they have no obligations to pay any brokers' or finders' fees in connection with
the transactions provided for herein.
ARTICLE X
ENTIRE AGREEMENT; SURVIVAL OF WARRANTIES
10.1 The Acquiring Trust, on behalf of the Acquiring Fund, and the
Selling Trust, on behalf of the Selling Fund, agree that neither party has made
to the other party any representation, warranty and/or covenant not set forth
herein and that this Agreement constitutes the entire agreement between the
parties.
10.2 Except as specified in the next sentence set forth in this
paragraph 10.2, the representations, warranties and covenants contained in this
Agreement or in any document delivered pursuant to or in connection with this
Agreement shall not survive the consummation of the transactions contemplated
hereunder. The covenants to be performed after the Closing Date and the
obligations of the Acquiring Fund in paragraph 5.6 shall continue in effect
beyond the consummation of the transactions contemplated hereunder.
ARTICLE XI
TERMINATION
11.1 This Agreement may be terminated by the mutual agreement of the
Acquiring Trust and the Selling Trust. In addition, either Acquiring Trust or
the Selling Trust may at its option terminate this Agreement with respect to the
Reorganization at or before the Closing Date due to:
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(a) a breach by the other of any representation, warranty or
agreement contained herein to be performed at or before the Closing Date, if not
cured within 30 days; or
(b) a condition herein expressed to be precedent to the obligations
of the terminating party that has not been met if it reasonably appears that it
will not or cannot be met.
11.2 In the event of any such termination, in the absence of willful
default, there shall be no liability for damages on the part of either the
Acquiring Fund, the Selling Fund, the Acquiring Trust or the Selling Trust, or
their respective Trustees or officers, to the other party or its Trustees or
officers. In the event of willful default, all remedies at law or in equity of
the party adversely affected shall survive.
ARTICLE XII
AMENDMENTS
12.1 This Agreement may be amended, modified, or supplemented in such
manner as may be mutually agreed upon in writing by the officers of the
Acquiring Trust and the Selling Trust as specifically authorized by their
respective Board of Trustees; provided, however, that, following the meeting of
the Selling Fund Shareholders called by the Selling Fund pursuant to paragraph
5.2 of this Agreement, no such amendment may have the effect of changing the
provisions for determining the number of Acquiring Fund Shares to be issued to
the Selling Fund Shareholders under this Agreement to the detriment of such
Shareholders without their further approval.
ARTICLE XIII
HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT;
LIMITATION OF LIABILITY
13.1 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.
13.2 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
13.3 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
13.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but, except as provided in
this paragraph, 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.
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13.5 It is expressly agreed that the obligations of the Acquiring Fund
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Acquiring Trust personally, but shall bind
only the trust property of the Acquiring Fund, as provided in the trust
instrument of the Acquiring Trust. Moreover, no series of the Acquiring Trust
other than the Acquiring Fund shall be responsible for the obligations of the
Acquiring Trust hereunder, and all persons shall look only to the assets of the
Acquiring Fund to satisfy the obligations of the Acquiring Fund hereunder. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Acquiring Trust on behalf of the Acquiring Fund and signed by authorized
officers of the Acquiring Trust, acting as such. Neither the authorization by
such Trustees nor the execution and delivery by such officers shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Acquiring Fund as
provided in the trust instrument of the Acquiring Trust.
13.6 It is expressly agreed that the obligations of the Selling Fund
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Selling Trust personally, but shall bind
only the trust property of the Selling Fund, as provided in the trust instrument
of the Selling Trust. Moreover, no series of the Selling Trust other than the
Selling Fund shall be responsible for the obligations of the Selling Trust
hereunder, and all persons shall look only to the assets of the Selling Fund to
satisfy the obligations of the Selling Fund hereunder. The execution and
delivery of this Agreement have been authorized by the Trustees of the Selling
Trust on behalf of the Selling Fund and signed by authorized officers of the
Selling Trust, acting as such. Neither the authorization by such Trustees nor
the execution and delivery by such officers shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Selling Fund as provided in the
trust instrument of the Selling Trust.
ARTICLE XIV
NOTICES
14.1 Any notice, report, statement or demand required or permitted by
any provisions of this Agreement shall be in writing and shall be deemed duly
given if delivered by hand (including by FedEx or similar express courier) or
transmitted by facsimile or three days after being mailed by prepaid registered
or certified mail, return receipt requested, addressed to the Selling Trust, 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: General Counsel, or to
the Acquiring Trust, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention:
General Counsel, or to any other address that the Selling Trust or the Acquiring
Trust shall have last designated by notice to the other party.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement, all
as of the date first written above.
JANUS ADVISER SERIES
By:
---------------------------------------
Name:
Title: President
ACKNOWLEDGED:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
XXXXXX INVESTMENT PORTFOLIO TRUST
By:
---------------------------------------
Name:
Title: President
ACKNOWLEDGED:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
The Undersigned is a party to this
Agreement for the purposes of paragraph
9.1 only:
JANUS CAPITAL MANAGEMENT LLC
By:
---------------------------------------
Name:
Title:
ACKNOWLEDGED:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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