Exhibit 1(ii)
JANUS INVESTMENT FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
March 18, 2003
TABLE OF CONTENTS
Page
----
ARTICLE I - NAME AND DEFINITIONS................................................1
Section 1.1 Name and Principal Office...............................1
Section 1.2 Definitions.............................................1
ARTICLE II - PURPOSE OF TRUST...................................................2
ARTICLE III - THE TRUSTEES AND THE ADVISORY BOARD...............................2
Section 3.1 Number, Designation, Election, Term, etc................2
(a) Trustees................................................2
(b) Number..................................................2
(c) Election and Term.......................................3
(d) Resignation and Retirement..............................3
(e) Removal.................................................3
(f) Vacancies...............................................3
(g) Effect of Death, Resignation, etc.......................3
(h) No Accounting...........................................3
Section 3.2 Powers of Trustees......................................4
(a) Investments.............................................5
(b) Disposition of Assets...................................5
(c) Ownership Powers........................................5
(d) Subscription............................................5
(e) Form of Holding.........................................5
(f) Reorganization, etc.....................................5
(g) Voting Trusts, etc......................................5
(h) Compromise..............................................6
(i) Partnerships, etc.......................................6
(j) Borrowing and Security..................................6
(k) Guarantees, etc.........................................6
(l) Insurance...............................................6
(m) Pensions, etc...........................................6
(n) Distribution Plans......................................6
Section 3.3 Certain Contracts.......................................6
(a) Advisory................................................7
(b) Administration..........................................7
(c) Distribution............................................7
(d) Custodian and Depository................................7
(e) Transfer and Dividend Disbursing Agency.................7
(f) Shareholder Servicing...................................7
(g) Accounting..............................................7
Section 3.4 Payment of Trust Expenses and Compensation of Trustees..8
Section 3.5 Ownership of Assets of the Trust........................8
Section 3.6 Action by Trustees......................................8
i
Section 3.7 Advisory Board..................................................9
ARTICLE IV - SHARES........................................................................9
Section 4.1 Description of Shares...........................................9
Section 4.2 Establishment and Designation of Series........................10
(a) Assets Belonging to Series.....................................11
(b) Liabilities Belonging to Series................................11
(c) Dividends......................................................11
(d) Liquidation....................................................12
(e) Voting.........................................................12
(f) Redemption by Shareholder......................................13
(g) Redemption by Trust............................................13
(h) Net Asset Value................................................13
(i) Transfer.......................................................14
(j) Equality.......................................................14
(k) Fractions......................................................14
(l) Conversion Rights..............................................14
(m) Class Differences..............................................14
Section 4.3 Ownership of Shares............................................14
Section 4.4 Investments in the Trust.......................................15
Section 4.5 No Pre-emptive Rights..........................................15
Section 4.6 Status of Shares and Limitation of Personal Liability..........15
Section 4.7 No Appraisal Rights............................................15
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS......................................15
Section 5.1 Voting Powers..................................................15
Section 5.2 Meetings.......................................................16
Section 5.3 Record Dates...................................................16
Section 5.4 Quorum and Required Vote.......................................17
Section 5.5 Action by Written Consent......................................17
Section 5.6 Inspection of Records..........................................17
Section 5.7 Additional Provisions..........................................17
Section 5.8 Shareholder Communications.....................................17
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION.....................................18
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.....18
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or Surety..18
Section 6.3 Indemnification of Shareholders................................19
Section 6.4 Indemnification of Trustees, Officers, etc.....................19
Section 6.5 Compromise Payment.............................................20
Section 6.6 Indemnification Not Exclusive, etc.............................20
Section 6.7 Liability of Third Persons Dealing with Trustees...............20
ARTICLE VII - MISCELLANEOUS...............................................................21
Section 7.1 Duration and Termination of Trust..............................21
Section 7.2 Reorganization.................................................21
Section 7.3 Amendments.....................................................21
ii
Section 7.4 Filing of Copies; References; Headings..............22
Section 7.5 Applicable Law......................................22
Section 7.6 Integration.........................................22
Section 7.7 Use of the Name.....................................22
iii
JANUS INVESTMENT FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
THIS AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST made as of this
18th day of March, 2003, by the Trustees hereunder.
WITNESSETH:
WHEREAS, Xxxxx X. Xxxxx, as sole Trustee, adopted the Declaration of
Trust of this Trust on February 11, 1986; and
WHEREAS, such Declaration of Trust has been amended by the affirmative
vote of a Majority of the Trustees at meetings duly called and held on December
9, 1994, September 10, 1996, and October 18, 2001;
NOW, THEREFORE, the Trustees hereby amend and restate the Declaration
of Trust dated February 11, 1986, as previously amended, in its entirety and
declare that they will hold all cash, securities and other assets which they may
from time to time acquire in any manner as Trustees hereunder IN TRUST to manage
and dispose of the same upon the following terms and conditions for the benefit
of the holders from time to time of shares of beneficial interest in this Trust
and the Series existing from time to time hereunder.
ARTICLE I - NAME AND DEFINITIONS
Section 1.1 Name and Principal Office. This Trust shall be known as
"
Janus Investment Fund" and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time
determine. The principal office of the Trust shall be located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000-0000 or at such other location as the Trustees
may from time to time determine.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Advisory Board" refers to the Advisory Board of the Trust and of
each Series hereunder established in accordance with Section 3.7;
(b) "By-Laws" shall mean the By-Laws of the Trust as amended from time
to time;
(c) "class" refers to any class of Shares of any Series established and
designated under or in accordance with the provisions of Article IV;
(d) "Commission" shall have the meaning given it in the 1940 Act;
1
(e) "Declaration of Trust" shall mean this Amended and Restated
Agreement and Declaration of Trust, as further amended or restated from time to
time;
(f) "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(g) "Shareholder" means a record owner of Shares;
(h) "Shares" refers to the transferable units of interest into which
the beneficial interest in the Trust and each Series of the Trust and/or any
class of any Series (as the context may require) shall be divided from time to
time;
(i) "Series" refers to a series of Shares established and designated
under or in accordance with the provisions of Article IV;
(j) "Trust" refers to the
Massachusetts business trust established by
this Declaration of Trust, as amended from time to time, inclusive of each and
every Series established hereunder; and
(k) "Trustees" refers to the Trustees of the Trust and of each Series
hereunder named herein or elected in accordance with Article III.
ARTICLE II - PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Series of the Trust one or more
investment programs.
ARTICLE III - THE TRUSTEES AND THE ADVISORY BOARD
Section 3.1 Number, Designation, Election, Term, etc.
(a) Trustees. Immediately following adoption of this Amended and
Restated Declaration of the Trust, the Trustees of the Trust and of each Series
hereunder shall be: Xxxxxx X. Xxxxxx, Xxxxxxx X. XxXxxxxx, Xxxx X. XxXxxxxx,
Xx., Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, and Xxxxxx X.
Xxxxxxxxx.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase or decrease the number of Trustees to
a number other than the number theretofore determined. No decrease in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of such Trustee's term, but the number of Trustees may be
decreased in conjunction with the removal of a Trustee pursuant to subsection
(e) of this Section 3.1.
2
(c) Election and Term. Trustees in addition to those named herein may
become such by election by Shareholders or the Trustees in office pursuant to
Section 3.1(f). Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee of the Trust and of each Series hereunder
during the lifetime of this Trust and until its termination as hereinafter
provided except as such Trustee sooner dies, resigns, retires or is removed.
Subject to Section 16(a) of the 1940 Act, the Trustees may elect their own
successors and may, pursuant to Section 3.1(f) hereof, appoint Trustees to fill
vacancies.
(d) Resignation and Retirement. Any Trustee may resign or retire as a
Trustee, by written instrument signed by such Trustee and delivered to the other
Trustees or to any officer of the Trust, and such resignation or retirement
shall take effect upon such delivery or upon such later date as is specified in
such instrument and shall be effective as to the Trust and each Series
hereunder.
(e) Removal. Any Trustee may be removed with or without cause at any
time: (i) by written instrument, signed by at least two-thirds of the number of
Trustees in office immediately prior to such removal, specifying the date upon
which such removal shall become effective; or (ii) by vote of Shareholders
holding not less than two-thirds of the Shares then outstanding, cast in person
or by proxy at any meeting called for the purpose; or (iii) by a written
declaration signed by Shareholders holding not less than two-thirds of the
Shares then outstanding and filed with the Trust's custodian. Any such removal
shall be effective as to the Trust and each Series hereunder.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (subject to the requirements of the
0000 Xxx) be filled by a majority of the remaining Trustees through the
appointment in writing of such other person as such remaining Trustees in their
discretion shall determine and such appointment shall be effective upon the
written acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this Declaration of
Trust, except that any such appointment in anticipation of a vacancy to occur by
reason of retirement, resignation or increase in number of Trustees to be
effective at a later date shall become effective only at or after the effective
date of said retirement, resignation or increase in number of Trustees. As soon
as any Trustee so appointed shall have accepted such appointment and shall have
agreed in writing to be bound by this Declaration of Trust and the appointment
is effective, the Trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or any Series hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant to
the terms of this Declaration of Trust.
(h) No Accounting. Except to the extent required by the 1940 Act or
under circumstances which would justify removal for cause, no person ceasing to
be a Trustee as a result of death, resignation, retirement, removal or
incapacity (nor the estate of any such person)
3
shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
Section 3.2 Powers of Trustees. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. The Trustees in all instances
shall act as principals, and are and shall be free from the control of the
Shareholders. The Trustees shall have full power and authority to do any and all
acts and to make and execute any and all contracts and instruments that they may
consider necessary or appropriate in connection with the management of the
Trust. The Trustees shall not be bound or limited by present or future laws or
customs with regard to investment by trustees or fiduciaries, but shall have
full authority and absolute power and control over the assets of the Trust and
the business of the Trust to the same extent as if the Trustees were the sole
owners of the assets of the Trust and the business in their own right, including
such authority, power and control to do all acts and things as they, in their
uncontrolled discretion, shall deem proper to accomplish the purposes of this
Trust. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business and affairs of the Trust and may amend and repeal them to the extent
that such By-Laws do not reserve that right to the Shareholders; they may xxx or
be sued in the name of the Trust; they may from time to time in accordance with
the provisions of Section 4.1 hereof establish Series, each such Series to
operate as a separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purposes; they may
from time to time in accordance with the provisions of Section 4.1 hereof
establish classes of Shares of any Series or divide the Shares of any Series
into classes; they may as they consider appropriate elect and remove officers
and appoint and terminate agents and consultants and hire and terminate
employees, any one or more of the foregoing of whom may be a Trustee, and
appoint and remove members of the Advisory Board in accordance with the
provisions of Section 3.7 hereof, and may provide for the compensation of all of
the foregoing; they may appoint from their own number, and terminate, any one or
more committees consisting of one or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more advisers, administrators, depositories
and custodians and may authorize any depository or custodian to employ
subcustodians or agents and to deposit all or any part of such assets in a
system or systems for the central handling of securities and debt instruments,
retain transfer, dividend, accounting or Shareholder servicing agents or any of
the foregoing, provide for the distribution of Shares by the Trust through one
or more distributors, principal underwriters or otherwise, and set record dates
or times for the determination of Shareholders or various of them with respect
to various matters; they may compensate or provide for the compensation of the
Trustees, officers, advisers, administrators, custodians, other agents, members
of the Advisory Board, consultants and employees of the Trust or the Trustees on
such terms as they deem appropriate; they may consult with members of the
Advisory Board in accordance with Section 3.7 hereof; and in general they may
delegate to any officer of the Trust, to any committee of the Trustees and to
any employee, adviser, administrator, distributor, depository, custodian,
transfer and dividend disbursing agent, or any other agent or consultant of the
Trust such authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of the
4
business and affairs of the Trust, including without implied limitation, the
power and authority to act in the name of the Trust and any Series and of the
Trustees, to sign documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority for and on behalf of the Trust and each separate Series established
hereunder:
(a) Investments. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities, debt instruments or
property; and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) Form of Holding. To hold any security, debt instrument or property
in a form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any Series
or in the name of a custodian, subcustodian or other depository or a nominee or
nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in any plan for
the reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument of which is or was held in the Trust; to consent to
any contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any security or
debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any securities or
debt instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
5
(h) Compromise. To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any Series or any matter in controversy,
including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge
the assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any notes
or other obligations of any person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof; and to mortgage and pledge
the Trust property or any part thereof to secure any of or all such obligations;
(l) Insurance. To purchase and pay for entirely out of Trust property
such insurance and/or bonding as they may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, members of the Advisory Board,
consultants, investment advisers, managers, administrators, distributors,
principal underwriters, or independent contractors thereof (or any person
connected therewith), of the Trust individually against all claims and
liabilities of every nature arising by reason of holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such person against such liability;
and
(m) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees, agents and members of the Advisory Board of the Trust.
(n) Distribution Plans. To adopt on behalf of the Trust or any Series
with respect to any class thereof a plan of distribution and related agreements
thereto pursuant to the terms of Rule 12b-1 of the 1940 Act and to make payments
from the assets of the Trust or the relevant Series pursuant to said Rule 12b-1
Plan.
Section 3.3 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter into
one or more contracts with any one or more corporations, trusts, associations,
partnerships,
6
limited partnerships, other type of organizations, or individuals (a
"Contracting Party"), to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or on behalf
of the Trust and/or any Series or class thereof, and/or the Trustees, and to
provide for the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series, to manage
such investments and assets, make investment decisions with respect thereto, and
to place purchase and sale orders for portfolio transactions relating to such
investments and assets;
(b) Administration. Subject to the general supervision of the Trustees
and in conformity with any policies of the Trustees with respect to the
operations of the Trust and each Series (including each class thereof), to
supervise all or any part of the operations of the Trust and each Series, and to
provide all or any part of the administrative and clerical personnel, office
space and office equipment and services appropriate for the efficient
administration and operations of the Trust and each Series;
(c) Distribution. To distribute the Shares of the Trust and each Series
(including any classes thereof), to the principal underwriter of such Shares,
and/or to act as agent of the Trust and each Series in the sale of Shares and
the acceptance or rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and each Series in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust
7
or a Contracting Party from entering into sub-contractual arrangements relating
to any of the matters referred to in Sections 3.3(a) through (g) hereof.
The fact that:
(i)any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter or distributor or agent of or for any Contracting Party,
or of or for any parent or affiliate of any Contracting Party or that the
Contracting Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Series, or that
(ii)any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations, trusts,
associations, partnerships, limited partnerships or other organizations, or have
other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any Series
and/or the Trustees or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Series or its Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of Trustees. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Series, or partly out of principal and partly out of
income, and to charge or allocate the same to, between or among such one or more
of the Series and/or one or more classes of Shares thereof that may be
established and designated pursuant to Article IV, as the Trustees deem fair,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, any Series and/or any class of Shares thereof, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, members of the Advisory Board, investment adviser,
administrator, distributor, principal underwriter, auditor, counsel, depository,
custodian, transfer agent, dividend disbursing agent, accounting agent,
Shareholder servicing agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur. Without limiting the generality of any other
provision hereof, the Trustees shall be entitled to reasonable compensation from
the Trust for their services as Trustees and may fix the amount of such
compensation.
Section 3.5 Ownership of Assets of the Trust. Title to all of the
assets of the Trust and of each Series shall at all times be considered as
vested in the Trustees.
Section 3.6 Action by Trustees. Except as otherwise provided by the
1940 Act or other applicable law, this Declaration of Trust or the By-Laws, any
action to be taken by the Trustees on behalf of or with respect to the Trust or
any Series or class thereof may be taken by a majority of the Trustees present
at a meeting of Trustees (a quorum, consisting of at least one-half of the
Trustees then in office, being present), within or without
Massachusetts,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the
8
same time, and participation by such means shall constitute presence in person
at a meeting, or by written consents of a majority of the Trustees then in
office (or such larger or different number as may be required by the 1940 Act or
other applicable law).
Section 3.7 Advisory Board. The Trustees may from time to time
establish an Advisory Board having such rights, responsibilities and other
characteristics as shall be specified in a written charter adopted by the
Trustees.
ARTICLE IV - SHARES
Section 4.1 Description of Shares. The beneficial interest in the Trust
shall be divided into Shares, all with $.01 par value, but the Trustees shall
have the authority from time to time to issue Shares in one or more Series as
they deem necessary or desirable (each of which Series of Shares shall represent
the beneficial interest in a separate and distinct sub-trust of the Trust),
including without limitation each Series specifically established and designated
in Section 4.2. For all purposes under this Declaration of Trust or otherwise,
including, without implied limitation, (i) with respect to the rights of
creditors and (ii) for purposes of interpreting the relevant rights of each
Series and the Shareholders of each Series, each Series established hereunder
shall be deemed to be a separate trust. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate such
separate and distinct Series, and to fix and determine the relative rights and
preferences as between the shares of the separate Series as to right of
redemption and the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and conditions under which the
several Series shall have separate voting rights or no voting rights.
In addition, the Trustees shall have exclusive power, without the
requirement of Shareholder approval, to issue classes of Shares of any Series or
divide the Shares of any Series into classes, each class having such different
dividend, liquidation, voting and other rights as the Trustees may determine,
and may establish and designate the specific classes of Shares of each Series.
The fact that a Series shall have initially been established and designated
without any specific establishment or designation of classes (i.e., that all
Shares of such Series are initially of a single class), or that a Series shall
have more than one established and designated class, shall not limit the
authority of the Trustees to establish and designate separate classes, or one or
more additional classes, of said Series without approval of the holders of the
initial class thereof, or previously established and designated class or classes
thereof.
The number of authorized Shares and the number of Shares of each Series
or class thereof that may be issued is unlimited, and the Trustees may issue
Shares of any Series or class thereof for such consideration and on such terms
as they may determine (or for no consideration if pursuant to a Share dividend
or split-up), all without action or approval of the Shareholders. All Shares
when so issued on the terms determined by the Trustees shall be fully paid and
non-assessable (but may be subject to mandatory contribution back to the Trust
as provided in subsection (g) of Section 4.2). The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series or class thereof into one or more
9
Series or classes thereof that may be established and designated from time to
time. The Trustees may hold as treasury Shares, reissue for such consideration
and on such terms as they may determine, or cancel, at their discretion from
time to time, any Shares of any Series or class thereof reacquired by the Trust.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Series or of any class of
Shares of any Series in addition to those established and designated in Section
4.2 shall be effective (i) upon the execution by a majority of the then Trustees
of an instrument setting forth such establishment and designation of the
relative rights and preferences of the Shares of such Series or class, (ii) upon
the execution of an instrument in writing by an officer of the Trust pursuant to
the vote of a majority of the Trustees, or (iii) as otherwise provided in either
such instrument. At any time that there are no Shares outstanding of any
particular Series or class previously established and designated, the Trustees
may by an instrument executed by a majority of their number (or by an instrument
executed by an officer of the Trust pursuant to the vote of a majority of the
Trustees) abolish that Series or class and the establishment and designation
thereof. Each instrument establishing and designating any Series shall have the
status of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose of
Shares of any Series (including any classes thereof) of the Trust to the same
extent as if such person were not a Trustee, officer or other agent of the
Trust; and the Trust may issue and sell or cause to be issued and sold and may
purchase Shares of any Series (including any classes thereof) from any such
person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Series (including any classes thereof) generally.
Section 4.2 Establishment and Designation of Series. Without limiting
the authority of the Trustees set forth in Section 4.1 to establish and
designate any further Series, the Trustees have established and designated
twenty six (26) Series: Janus Fund, Janus Balanced Fund, Janus Core Equity Fund,
Janus Enterprise Fund, Janus Federal Tax-Exempt Fund, Janus Flexible Income
Fund, Janus Global Life Sciences Fund, Janus Global Technology Fund, Janus
Global Value Fund, Janus Government Money Market Fund, Janus Growth and Income
Fund, Janus High-Yield Fund, Janus Institutional Cash Reserves Fund, Janus
Mercury Fund, Janus Money Market Fund, Janus Olympus Fund, Janus Orion Fund,
Janus Overseas Fund, Janus Short-Term Bond Fund, Janus Special Equity Fund,
Janus Tax-Exempt Money Market Fund, Janus Twenty Fund, Janus Venture Fund, and
Janus Worldwide Fund. The Shares of such Series and classes thereof and any
Shares of any further Series or classes thereof that may from time to time be
established and designated by the Trustees shall have the following relative
rights and preferences (unless the Trustees otherwise determine with respect to
some further Series or classes thereof at the time of establishing and
designating the same):
10
(a) Assets Belonging to Series. All consideration received by the Trust
for the issue or sale of Shares of a particular Series or any classes thereof,
together with all assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be, shall be held by the Trustees in trust for the benefit of the
holders of Shares of that Series or class thereof and shall irrevocably belong
to that Series (and be allocable to any classes thereof) for all purposes, and
shall be so recorded upon the books of account of the Trust. Such consideration,
assets, income, earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever form the
same may be, together with any General Items (as hereinafter defined) allocated
to that Series as provided in the following sentence, are herein referred to as
"assets belonging to" that Series (and allocable to any classes thereof). In the
event that there are any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Series (collectively "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Series
established and designated from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable; and any General Items
so allocated to a particular Series shall belong to that Series (and be
allocable to any classes thereof). Each such allocation by the Trustees shall be
conclusive and binding upon the holders of all Shares of all Series (including
any classes thereof) for all purposes.
(b) Liabilities Belonging to Series. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and all expenses, costs, charges and reserves belonging to that Series,
and any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular Series shall
be allocated and charged by the Trustees to and among any one or more of the
Series established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable. In
addition, the liabilities in respect of a particular class of Shares of a
particular Series and all expenses, costs, charges and reserves belonging to
that class of Shares, and any general liabilities, expenses, costs, charges or
reserves of that particular Series which are not readily identifiable as
belonging to any particular class of Shares of that Series shall be allocated
and charged by the Trustees to and among any one or more of the classes of
Shares of that Series established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves allocated and
so charged to a Series or class thereof are herein referred to as "liabilities
belonging to" that Series or class thereof. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders, creditors and any other persons dealing with the
Trust or any Series (including any classes thereof) for all purposes. Any
creditor of any Series may look only to the assets of that Series to satisfy
such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a particular
Series or any class thereof may be paid with such frequency as the Trustees may
determine, which may be daily or otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Series or class,
11
from such of the income and capital gains, accrued or realized, from the assets
belonging to that Series, or in the case of a class, belonging to that Series
and allocable to that class, as the Trustees may determine, after providing for
actual and accrued liabilities belonging to that Series or class. All dividends
and distributions on Shares of a particular Series or class thereof shall be
distributed pro rata to the holders of Shares of that Series or class in
proportion to the number of Shares of that Series or class held by such holders
at the date and time of record established for the payment of such dividends or
distributions, except that in connection with any dividend or distribution
program or procedure the Trustees may determine that no dividend or distribution
shall be payable on Shares as to which the Shareholder's purchase order and/or
payment have not been received by the time or times established by the Trustees
under such program or procedure. Such dividends and distributions may be made in
cash or Shares of that Series or class or a combination thereof as determined by
the Trustees or pursuant to any program that the Trustees may have in effect at
the time for the election by each Shareholder of the mode of the making of such
dividend or distribution to that Shareholder. Any such dividend or distribution
paid in Shares will be paid at the net asset value thereof as determined in
accordance with subsection (h) of Section 4.2.
The Trustees shall have full discretion to determine which items shall
be treated as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) Liquidation. In the event of the liquidation or dissolution of the
Trust, the holders of Shares of each Series or any class thereof that has been
established and designated shall be entitled to receive, when and as declared by
the Trustees, the excess of the assets belonging to that Series, or in the case
of a class, belonging to that Series and allocable to that class, over the
liabilities belonging to that Series or class. The assets so distributable to
the holders of Shares of any particular Series or class thereof shall be
distributed among such holders in proportion to the relative net asset value of
Shares of that Series or class thereof held by them and recorded on the books of
the Trust. The liquidation of any particular Series or class thereof may be
authorized at any time by vote of a majority of the Trustees then in office.
Prior to giving effect to any such authorization, the Trust shall notify the
Shareholders of the relevant Series or class.
(e) Voting. On each matter submitted to a vote of the Shareholders of
any one or more Series of classes thereof, each holder of Shares of such Series
or classes shall be entitled to one vote for each dollar of net asset value
standing in such Shareholder's name on the books of the Trust (or fractional
vote) for each dollar of net asset value of such Shares standing in such
Shareholder's name on the books of the trust on the record date for such vote
(with references in this Declaration of Trust to "Shares voted" or "Shares
entitled to vote" being interpreted as "votes cast" or "votes entitled to be
cast"). All Shares of all Series and classes thereof shall vote together as a
single class; provided, however, that as to any matter (i) with respect to which
a separate vote of one or more Series or classes thereof is required by the 1940
Act or the provisions of the writing establishing and designating the Series or
class, such requirements as to a separate vote by such Series or class thereof
shall apply in lieu of all Shares of all Series and classes thereof voting
together; and (ii) as to any matter which affects the interests of one or more
particular Series or classes thereof, only the holders of Shares of the one
12
or more affected Series or classes shall be entitled to vote, and each such
Series or class shall vote as a separate class.
(f) Redemption by Shareholder. Each holder of Shares of a particular
Series or any class thereof shall have the right at such times as may be
permitted by the Trust to require the Trust to redeem all or any part of such
holder's Shares of that Series or class thereof at a redemption price equal to
the net asset value per Share of that Series or class thereof next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are properly
tendered for redemption, subject to any contingent deferred sales charge or
redemption charge in effect at the time of redemption. Payment of the redemption
price shall be in cash; provided, however, that if the Trustees determine, which
determination shall be conclusive, that conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may, subject to the requirements
of the 1940 Act, make payment wholly or partly in securities or other assets
belonging to the Series of which the Shares being redeemed are part at the value
of such securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Series or class thereof to require the Trust to redeem Shares of that Series
during any period or at any time when and to the extent permissible under the
1940 Act.
(g) Redemption by Trust. Each Share of each Series or class thereof
that has been established and designated is subject to redemption by the Trust
at the redemption price which would be applicable if such Share was then being
redeemed by the Shareholder pursuant to subsection (f) of this Section 4.2: (i)
at any time, if the Trustees determine in their sole discretion and by majority
vote that failure to so redeem may have materially adverse consequences to the
Trust or any Series or to the holders of the Shares of the Trust or any Series
thereof or class thereof, or (ii) upon such other conditions as may from time to
time be determined by the Trustees and set forth in the then current Prospectus.
Upon such redemption the holders of the Shares so redeemed shall have no further
right with respect thereto other than to receive payment of such redemption
price.
(h) Net Asset Value. The net asset value per Share of any Series shall
be (i) in the case of a Series whose Shares are not divided into classes, the
quotient obtained by dividing the value of the net assets of that Series (being
the value of the assets belonging to that Series less the liabilities belonging
to that Series) by the total number of Shares of that Series outstanding, and
(ii) in the case of a class of Shares of a Series whose Shares are divided into
classes, the quotient obtained by dividing the value of the net assets of that
Series allocable to such class (being the value of the assets belonging to that
Series allocable to such class less the liabilities belonging to such class) by
the total number of Shares of such class outstanding; all determined in
accordance with the methods and procedures, including without limitation those
with respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Share of
any Series at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that
13
Series as dividends payable in additional Shares of that Series at the
designated constant dollar amount and for the handling of any losses
attributable to that Series. Such procedures may provide that in the event of
any loss each Shareholder shall be deemed to have contributed to the capital of
the Trust attributable to that Series such Shareholder's pro rata portion of the
total number of Shares required to be cancelled in order to permit the net asset
value per Share of that Series to be maintained, after reflecting such loss, at
the designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have agreed, by making an investment in any Series with respect to
which the Trustees shall have adopted any such procedure, to make the
contribution referred to in the preceding sentence in the event of any such
loss.
(i) Transfer. All Shares of each particular Series or class thereof
shall be transferable, but transfers of Shares of a particular Series or class
thereof will be recorded on the Share transfer records of the Trust applicable
to that Series or class only at such times as Shareholders shall have the right
to require the Trust to redeem Shares of that Series or class and at such other
times as may be permitted by the Trustees.
(j) Equality. Except as provided herein or in the instrument
designating and establishing any class of Shares or any Series, all Shares of
each particular Series or class thereof shall represent an equal proportionate
interest in the assets belonging to that Series, or in the case of a class,
belonging to that Series and allocable to that class, subject to the liabilities
belonging to that Series or class, and each Share of any particular Series or
class shall be equal to each other Share of that Series or class; but the
provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 4.2 that may exist with respect to
dividends and distributions on Shares of the same Series or class. The Trustees
may from time to time divide or combine the Shares of any particular Series or
class into a greater or lesser number of Shares of that Series or class without
thereby changing the proportionate beneficial interest in the assets belonging
to that Series or class or in any way affecting the rights of Shares of any
other Series or class.
(k) Fractions. Any fractional Share of any Series or class, if any such
fractional Share is outstanding, shall carry proportionately all the rights and
obligations of a whole Share of that Series or class, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the requirements of
the 1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Series or class thereof shall have the right to convert said
Shares into Shares of one or more other Series or class thereof in accordance
with such requirements and procedures as may be established by the Trustees.
(m) Class Differences. The relative rights and preferences of the
classes of any Series may differ in such other respects as the Trustees may
determine to be appropriate in their sole discretion, provided that such
differences are set forth in the instrument establishing and designating such
classes and executed by a majority of the Trustees (or by an instrument executed
by an officer of the Trust pursuant to a vote of a majority of the Trustees).
14
Section 4.3 Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Series
and each class thereof that has been established and designated. No certificates
certifying the ownership of Shares need be issued except as the Trustees may
otherwise determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as the
case may be, shall be conclusive as to who are the Shareholders and as to the
number of Shares of each Series and class thereof held from time to time by each
such Shareholder.
Section 4.4 Investments in the Trust. The Trustees may accept or reject
investments in the Trust and each Series from such persons and on such terms and
for such consideration, not inconsistent with the provisions of the 1940 Act, as
they from time to time authorize or determine. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase of Shares that conform to such authorized terms
and to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
Section 4.5 No Pre-emptive Rights. Shareholders shall have no
pre-emptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or any Series.
Section 4.6 Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust or any Series thereof nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
Section 4.7 No Appraisal Rights. Shareholders shall have no right to
demand payment for their shares or to any other rights of dissenting
shareholders in the event the Trust participates in any transaction which would
give rise to appraisal or dissenters' rights by a shareholder of a corporation
organized under Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, or otherwise.
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS
15
Section 5.1 Voting Powers. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act, [(iii)
with respect to any termination or reorganization of the Trust to the extent and
as provided in Sections 7.1 and 7.2,] (iv) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Section 7.3, (v) to the
same extent as the stockholders of a
Massachusetts business corporation as to
whether or not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of the Trust
or any Series thereof or the Shareholders (provided, however, that a Shareholder
of a particular Series shall not be entitled to a derivative or class action on
behalf of any other Series (or Shareholder of any other Series) of the Trust)
and (vi) with respect to such additional matters relating to the Trust as may be
required by the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in person or
by proxy. Proxies may be given by or on behalf of a shareholder orally or in
writing or pursuant to any computerized, telephonic, or mechanical data
gathering process. A proxy with respect to Shares held in the name of two or
more persons shall be valid if executed or otherwise given by or on behalf of
any one of them unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed or otherwise given by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the By-Laws to be taken by
Shareholders.
Section 5.2 Meetings. No annual or regular meeting of Shareholders is
required. Special meetings of Shareholders may be called by the Trustees from
time to time for the purpose of taking action upon any matter requiring the vote
or authority of the Shareholders as herein provided or upon any other matter
deemed by the Trustees to be necessary or desirable. Written notice of any
meeting of Shareholders shall be given or caused to be given by the Trustees by
mailing such notice at least seven days before such meeting, postage prepaid,
stating the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the purpose
of voting upon removal of any Trustee of the Trust when requested to do so in
writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by Shareholders
holding at least 10% of the Shares then outstanding requesting a meeting be
called for any other purpose requiring action by the Shareholders as provided
herein or in the By-Laws, then Shareholders holding at least 10% of the Shares
then outstanding may call and give notice of such meeting, and thereupon the
meeting shall be held in the manner provided for herein in case of call thereof
by the Trustees.
Section 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at
16
or in connection with the termination of the Trust), as the Trustees may
determine; or without closing the transfer books the Trustees may fix a date and
time not more than 120 days prior to the date of any meeting of Shareholders or
other action as the date and time of record for the determination of
Shareholders entitled to vote at such meeting or any adjournment thereof or to
be treated as Shareholders of record for purposes of such other action, and any
Shareholder who was a Shareholder at the date and time so fixed shall be
entitled to vote at such meeting or any adjournment thereof or to be treated as
a Shareholder of record for purposes of such other action, even though such
Shareholder has since that date and time disposed of such Shareholder's Shares,
and no Shareholder becoming such after that date and time shall be so entitled
to vote at such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action.
Section 5.4 Quorum and Required Vote. Except as otherwise provided by
the 1940 Act or other applicable law, thirty percent of the Shares entitled to
vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any meeting
of shareholders, whether or not a quorum is present, may be adjourned for any
lawful purpose. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting without the
necessity of further notice. A majority of the Shares voted at a meeting of
which a quorum is present shall decide any questions and a plurality shall elect
a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
Section 5.5 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if Shareholders who hold at least thirty percent (30%) of the
Shares entitled to vote on the matter (or such larger proportion thereof as
shall be required by the 1940 Act or by any express provision of this
Declaration of Trust or the By-Laws) consent to the action in writing and such
written consents are filed with the records of the meetings of Shareholders.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders for any lawful purpose reasonably related to
a Shareholder's interest as a Shareholder. The Trustees may from time to time
establish reasonable standards with respect to Shareholder inspection of Trust
records, including standards governing what information and documents are to be
furnished, at what time and location and at whose expense.
Section 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 Shareholder Communications. Whenever ten or more
Shareholders of record who have been such for at least six months preceding the
date of application, and who hold in the aggregate either Shares having a net
asset value of at least $25,000 or at least 1% of the outstanding Shares,
whichever is less, shall apply to the Trustees in writing, stating that they
wish to communicate with other Shareholders with a view to obtaining signatures
to a request for a Shareholder meeting and accompanied by a form of
communication and request which they
17
wish to transmit, the Trustees shall within five business days after receipt of
such application either (1) afford to such applicants access to a list of the
names and addresses of all Shareholders as recorded on the books of the Trust or
Series, as applicable; or (2) inform such applicants as to the approximate
number of Shareholders of record, and the approximate cost of mailing to them
the proposed communication and form of request.
If the Trustees elect to follow the course specified in clause (2)
above, the Trustees, upon the written request of such applicants, accompanied by
a tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Series with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Series nor the Trustees, nor any of the Trust's officers,
employees, members of the Advisory Board or agents, whether past, present or
future, nor any other Series shall be personally liable therefor. Every note,
bond, contract, instrument, certificate or undertaking and every other act or
thing whatsoever executed or done by or on behalf of the Trust, any Series or
the Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been executed or done only by or for the Trust (or the Series) or
the Trustees and not personally. Nothing in this Declaration of Trust shall
protect any Trustee, Advisory Board member or officer against any liability to
the Trust or the Shareholders to which such Trustee or officer would otherwise
be subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice that
this Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust, or the particular Series in question,
as the case may be, but the omission thereof shall not operate to bind any
Trustees or Trustee or officers or officer or Shareholders or Shareholder
individually.
18
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder
shall be binding upon everyone interested. A Trustee shall be liable for such
Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. Subject to the foregoing, (a) the Trustees shall not be responsible
or liable in any event for any neglect or wrongdoing of any officer, agent,
employee, member of the Advisory Board, consultant, adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend
disbursing, Shareholder servicing or accounting agent of the Trust, nor shall
any Trustee be responsible for the act or omission of any other Trustee; (b) the
Trustees may take advice of counsel, members of the Advisory Board or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice;
and (c) in discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a Contracting
Party appointed by the Trustees pursuant to Section 3.3. The Trustees as such
shall not be required to give any bond or surety or any other security for the
performance of their duties.
Section 6.3 Indemnification of Shareholders. In case any Shareholder
(or former Shareholder) of any Series of the Trust shall be charged or held to
be personally liable for any obligation or liability of the Trust solely by
reason of being or having been a Shareholder and not because of such
Shareholder's acts or omissions or for some other reason, said Series (upon
proper and timely request by the Shareholder) shall assume the defense against
such charge and satisfy any judgment thereon, and the Shareholder or former
Shareholder (or such Shareholder's heirs, executors, administrators or other
legal representatives or in the case of a corporation or other entity, its
corporate or other general successor) shall be entitled out of the assets of
said Series estate to be held harmless from and indemnified against all loss and
expense arising from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc. The Trust shall
indemnify (from the assets of the Series in question) each of its Trustees,
members of the Advisory Board and officers (including persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
(hereinafter referred to as a "Covered Person")) against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee, or a
member of the Advisory Board, or officer, director or trustee, except with
respect to any matter as to which it has been determined that such Covered
Person had acted with willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the
19
conduct of such Covered Person's office (such conduct referred to hereafter as
"Disabling Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the person to be
indemnified did not engage in Disabling Conduct, (ii) dismissal of a court
action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee did not
engage in Disabling Conduct by (a) a vote of a majority of a quorum of Trustees
who are neither "interested persons" of the Trust as defined in section 2(a)(19)
of the 1940 Act nor parties to the proceeding, or (b) an independent legal
counsel in a written opinion. Expenses, including accountants' and counsel fees
so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by the Series in question in advance of the final disposition
of any such action, suit or proceeding, provided that the Covered Person shall
have undertaken to repay the amounts so paid to the Series in question if it is
ultimately determined that indemnification of such expenses is not authorized
under this Article VI and (i) the Covered Person shall have provided security
for such undertaking, (ii) the Trust shall be insured against losses arising by
reason of any lawful advances, or (iii) a majority of a quorum of the Trustees
who are neither "interested persons" of the Trust nor parties to the proceeding,
or an independent legal counsel in a written opinion, shall have determined,
based on a review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Covered Person ultimately
will be found entitled to indemnification.
Section 6.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees or (b) by an independent legal counsel in a written opinion. Approval
by the Trustees pursuant to clause (a) or by independent legal counsel pursuant
to clause (b) shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with any of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction to have been liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI, "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this Article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of any such person.
20
Section 6.7 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII - MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Series or class thereof shall operate to
terminate the Trust. The Trust may be terminated at any time by a majority of
the Trustees then in office subject to a favorable vote of a majority of the
outstanding voting securities, as defined in the 1940 Act.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall, in accordance with such procedures
as the Trustees consider appropriate, reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders in conformity with the
provisions of subsection (d) of Section 4.2.
Section 7.2 Reorganization. The Trust, or any one or more Series, may,
either as the successor, survivor, or non-survivor, (1) consolidate or merge
with one or more other trusts, sub-trusts, partnerships, limited liability
companies, associations or corporations organized under the laws of the
Commonwealth of
Massachusetts or any other state of the United States, to form a
consolidated or merged trust, sub-trust, partnership, limited liability company,
association or corporation under the laws of which any one of the constituent
entities is organized with the Trust to be the survivor or non-survivor of such
consolidation or merger, or (2) transfer a substantial portion of its assets to
one or more other trusts, sub-trusts, partnerships, limited liability companies,
associations or corporations organized under the laws of the Commonwealth of
Massachusetts or any other state of the United States, or have one or more such
trusts, sub-trusts, partnerships, limited liability companies, associations or
corporations transfer a substantial portion of its assets to it, any such
consolidation, merger or transfer to be upon such terms and conditions as are
specified in an agreement and plan of reorganization authorized and approved by
the Trustees and entered into by the Trust, or one or more Series as the case
may be, in connection therewith. Any such consolidation, merger or transfer may
be authorized at any time by vote of a majority of the Trustees then in office.
Prior to giving effect to any such authorization, the Trust shall notify the
Shareholders of the relevant Series or class.
Section 7.3 Amendments. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to
21
the foregoing, the provisions of this Declaration of Trust (whether or not
related to the rights of Shareholders) may be amended at any time, so long as
such amendment does not materially adversely affect the rights of any
Shareholder with respect to which such amendment is or purports to be applicable
and so long as such amendment is not in contravention of applicable law,
including the 1940 Act, by an instrument in writing signed by a majority of the
then Trustees (or by an officer of the Trust pursuant to the vote of a majority
of such Trustees). Any amendment to this Declaration of Trust that materially
adversely affects the rights of Shareholders may be adopted at any time by an
instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to a vote of a majority of such Trustees) when
authorized to do so by the vote in accordance with subsection (e) of Section 4.2
of Shareholders as specified in Section 5.4 hereof. Subject to the foregoing,
any such amendment shall be effective as of any prior or future time as provided
in the instrument containing the terms of such amendment or, if there is no
provision therein with respect to effectiveness, upon the execution of such
instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Trust to the effect that such amendment
has been duly adopted.
Section 7.4 Filing of Copies; References; Headings. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Shareholder. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein," "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 7.5 Applicable Law. This Declaration of Trust is made in the
Commonwealth of
Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. The
Trust shall be of the type referred to in Section 1 of Chapter 182 of the
Massachusetts General Laws and of the type commonly called a
Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
Section 7.6 Integration. This Declaration of Trust constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understandings pertaining
thereto.
Section 7.7 Use of the Name "Janus". Janus International Holdings LLC
("JIH") has consented to the use by the Trust and by each Series and each class
thereof to the identifying word "Janus" in the name of the Trust and of each
Series and class thereof. Such consent is conditioned upon the Trust's
employment of Janus Capital Management LLC as investment
22
adviser to the Trust and to each Series and each class thereof. As between JIH
and the Trust, JIH shall control the use of such name insofar as such name
contains the identifying word "Janus." JIH may from time to time use the
identifying word "Janus" or license the use of the identifying word "Janus" in
other connections and for other purposes, including without limitation in the
names of other investment companies, corporations or businesses that it or one
of its affiliates may manage, advise, sponsor or own or in which it or one of
its affiliates may have a financial interest. JIH may require the Trust or any
Series or class thereof to cease using the identifying word "Janus" in the name
of the Trust or any Series or any class thereof if the Trust or any Series or
class thereof ceases to employ Janus Capital Management LLC or a subsidiary or
affiliate thereof as investment adviser.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, each of the undersigned hereunto has set his hand
and seal in the City of Denver, State of Colorado, for himself and his assigns,
as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Xxxxxxx X. XxXxxxxx
/s/ Xxxx X. XxXxxxxx, Xx.
-----------------------------------
Xxxx X. XxXxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
24
(THE STATE OF COLORADO)
_________ County, ss
Then personally appeared before me the within-named Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxx
X. XxXxxxxx, Xx. and Xxxxxxx X. XxXxxxxx, each of whom acknowledged the
execution of the foregoing instrument to be his free act and deed, before me,
this 18th day of March, 2003.
/s/ Xxxxx X. Xxxxx
-----------------------------------
Notary Public
(Notarial Seal)
My commission expires: 7/17/2004
---------
25
