Exhibit 8(ttt)
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of _________, 2006 (the
"Agreement"), between Janus Investment Fund, a Massachusetts business trust with
offices at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Transferring
Trust"), on behalf of the Institutional Shares class and Service Shares class
(each, a Transferring Class") of its series, Janus Money Market Fund and Janus
Government Money Market Fund (each series of the Transferring Trust, a
"Transferring Fund"), and Janus Adviser Series, a Delaware statutory trust (the
"Acquiring Trust"), on behalf of the Institutional Shares class and Service
Shares class (each, an "Acquiring Class") of its series, Janus Institutional
Money Market Fund and Janus Institutional Government Money Market Fund (each
series of the Acquiring Trust, an "Acquiring Fund").
WHEREAS, each Transferring Fund is authorized to issue three classes of
shares, Investor Shares, Institutional Shares and Service Shares, and may issue
additional classes in the future;
WHEREAS, each Acquiring Fund is authorized to issue five classes of
shares, Select Shares, Primary Shares, Premium Shares, Institutional Shares and
Service Shares, and may issue additional classes in the future;
WHEREAS, for each Transferring Class of a Transferring Fund, there is a
corresponding Acquiring Class of each Acquiring Fund (and this Agreement refers
to the Transferring Class and the corresponding Acquiring Class as
"corresponding" classes) and for each Transferring Fund, there is an Acquiring
Fund corresponding to each Transferring Fund as follows (and this Agreement
refers to the Transferring Fund and the corresponding Acquiring Fund as
"corresponding" funds):
TRANSFERRING TRUST ACQUIRING TRUST
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Janus Money Market Fund Janus Institutional Money Market Fund
Janus Government Money Market Fund Janus Institutional Government Money Market Fund
WHEREAS, the Transferring Trust and the Acquiring Trust wish to effect
a reorganization (the "Reorganization"), which will consist of designating each
Transferring Class of each Transferring Fund as a new series of the Transferring
Trust, assigning to each new series a portion of the assets and liabilities of
the Transferring Fund equal in value to the aggregate net asset value of the
Transferring Fund represented by the Transferring Classes, as applicable,
transferring the assets and liabilities of the corresponding new series to the
corresponding Acquiring Class of each Acquiring Fund in exchange for shares of
the corresponding Acquiring Class of each Acquiring Fund (the "Acquiring Fund
Shares") and the redemption of those Transferring Class shares by distribution
in kind to the holders thereof of the corresponding Acquiring Fund Shares, such
actions to occur on the closing date provided for in paragraph 4.1 hereof (the
"Closing Date"), all upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, as of the Closing Date, the Transferring Trust and the
Acquiring Trust are registered, open-end management investment companies, each
Transferring Class and Transferring Fund will be duly established and designated
classes and series of the Transferring Trust, and each Acquiring Class and
Acquiring Fund will be duly established and designated classes and series of the
Acquiring Trust;
WHEREAS, both the Transferring Trust and the Acquiring Trust will be
authorized as of the Closing Date to issue shares of beneficial interest in
connection with the Reorganization;
WHEREAS, the Board of Trustees of the Transferring Trust has determined
that the Reorganization is in the best interests of each Transferring Fund and
that the interests of each Transferring Fund's shareholders would not be diluted
as a result of the Reorganization;
WHEREAS, the Board of Trustees of the Acquiring Trust has determined
that the Reorganization is in the best interests of each Acquiring Fund and that
the interests of each Acquiring Fund's shareholders would not be diluted as a
result of the Reorganization; and
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties agree as follows:
1. CREATION OF ACQUIRING FUNDS
1.1 INVESTMENT OBJECTIVES, POLICIES AND PROCEDURES. Prior to the
Closing Date, the Board of Trustees of the Acquiring Trust shall adopt for each
Acquiring Fund investment objectives, policies and procedures identical to those
of the corresponding Transferring Fund.
1.2 AGREEMENTS AND PLANS. Prior to the Closing Date, the Board of
Trustees of the Acquiring Trust shall adopt for each Acquiring Class of each
Acquiring Fund investment advisory agreements, other agreements, and
distribution and administration plans and fees substantially similar to those of
the corresponding Transferring Class of the corresponding Transferring Fund.
1.3 INITIAL SHAREHOLDER APPROVALS. Prior to the valuation time provided
for in paragraph 3.1 hereof (the "Valuation Time"), each Acquiring Fund shall
issue to the corresponding Transferring Fund one nominal share of the Acquiring
Fund. No payment shall be made to the Acquiring Funds in connection with the
issuance of these nominal shares. Provided that the shareholders of one or both
Transferring Funds have approved the Reorganization, the Board of Trustees of
the Transferring Trust, or any officer of the Transferring Trust duly authorized
by that Board, on behalf of the Transferring Fund as sole shareholder of the
corresponding Acquiring Fund, shall approve the investment advisory agreement
between the Acquiring Fund and Janus Capital Management LLC ("Janus Capital")
substantially similar to the current advisory agreement between the
corresponding Transferring Fund and Janus Capital, to take effect the day
following the Closing Date. After these approvals, and before the Valuation
Time, each Transferring Fund shall redeem its nominal share of the Acquiring
Fund.
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2. REORGANIZATION
2.1 CREATION OF NEW SERIES OF THE TRANSFERRING TRUST. Subject to the
terms and conditions contained herein, the Transferring Trust agrees that, as of
immediately prior to the Valuation Time, it will designate each Transferring
Class of each Transferring Fund as a corresponding class of a separate series of
the Transferring Trust (each an "Interim Transferring Fund"), and each
Transferring Fund will allocate to the corresponding Interim Transferring Fund a
portion of the assets and liabilities of the Transferring Fund, including
securities and cash, having a value equal to the aggregate net asset value of
all Transferring Class shares of the Transferring Fund, both full and
fractional, issued and outstanding (collectively, the "Transferred Assets" of
that Transferring Fund), such values to be determined as set forth in paragraph
3.1. Each Interim Transferring Fund shall be newly-formed for the sole purpose
of engaging in the Reorganization and shall not have any assets or engage in any
business except as is necessary to consummate the Reorganization. Appendix A to
this Agreement identifies, for each Transferring Class of each Transferring
Fund, its corresponding Interim Transferring Fund and the corresponding
Acquiring Class of the corresponding Acquiring Fund. Where appropriate due to
the size of the Transferred Assets (either in absolute terms or as a percentage
of the entire Transferring Fund), the Transferred Assets shall consist of as
nearly a prorata portion as is reasonably practical of each security or other
asset held by the Transferring Fund as of immediately prior to the Valuation
Time. If, however, the size of the Transferred Assets makes it impractical to
apply such a prorata split to most of the securities held by the Transferring
Fund, the Transferred Assets shall be selected in a manner equitable to all
shareholders of the Transferring Fund. In any case, the Transferred Assets shall
be selected in a manner such that the deviation between market value and
amortized cost of each Interim Transferring Fund does not materially differ from
the deviation between market value and amortized cost of the corresponding
Transferring Class of the corresponding Transferring Fund immediately prior to
the Valuation Time. If the Transferred Assets consist all or primarily of cash,
Janus Capital shall bear the cost of the brokerage and other expenses incurred
by the Acquiring Funds in investing the cash. The allocation of assets under
this paragraph 2.1 shall be done in accordance with the terms set forth herein
and with Rule 17a-7 under the Investment Company Act of 1940, as amended (the
"1940 Act"), and related no-action letters issued by the staff of the Securities
and Exchange Commission, as if the allocation of assets were a sale of assets
from each Transferring Class of a Transferring Fund to the corresponding Interim
Transferring Fund.
2.2 TRANSFER OF ASSETS AND LIABILITIES; ISSUANCE OF SHARES. Subject to
the terms and conditions contained herein:
a. As of the Valuation Time, the Transferring Trust will
transfer, convey and assign all of the Transferred Assets of each
Interim Transferring Fund to the corresponding Acquiring Fund.
b. In exchange therefor, each Acquiring Fund will (i) deliver
to the corresponding Interim Transferring Fund a number of full and
fractional Acquiring Fund Shares equal to the number of full and
fractional Transferring Class Shares of the corresponding Transferring
Fund outstanding as of the Valuation Time and (ii) take certain other
actions, as set forth in paragraph 2.3. In lieu of delivering
certificates for the Acquiring Fund Shares, each Acquiring Fund shall
cause its transfer agent to credit
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the Acquiring Fund Shares to the corresponding Interim Transferring
Fund's account on the books of the Acquiring Fund and shall deliver a
confirmation thereof to the corresponding Interim Transferring Fund.
c. Immediately after the Valuation Time and the transfer
described in paragraph 2.2(b), each Interim Transferring Fund shall
transfer all of the shares of the Acquiring Fund to the corresponding
Transferring Fund in complete liquidation of the Interim Transferring
Fund and all outstanding shares of the Interim Transferring Fund shall
be cancelled.
2.3 LIABILITIES. Each Transferring Fund will endeavor to discharge all
of its known liabilities and obligations attributable to its Transferring
Classes prior to the Closing Date to the extent reasonably practicable. Each
Transferring Fund will transfer to the corresponding Interim Transferring Fund,
which will assume, any such liabilities and obligations which have not been
discharged prior to the Closing Date as provided for in paragraphs 2.1 and 2.2.
The Acquiring Fund will, in turn, assume all such known liabilities, debts,
obligations and duties of the Interim Transferring Fund.
2.4 DELIVERY OF ASSETS. Each Interim Transferring Fund shall deliver
the Transferred Assets at the closing provided for in paragraph 4.1 (the
"Closing") to the custodian for the corresponding Acquiring Fund (each, a
"Custodian"), for the account of the corresponding Acquiring Class of the
corresponding Acquiring Fund, all securities not in bearer form duly endorsed,
or accompanied by duly executed separate assignments or stock powers, in proper
form for transfer, with signatures guaranteed, and with all necessary stock
transfer stamps, sufficient to transfer good and marketable title thereto
(including all accrued interest and dividends and rights pertaining thereto) to
the Custodian for the account of the corresponding Acquiring Fund free and clear
of all liens, encumbrances, rights, restrictions and claims. All cash delivered
shall be in the form of immediately available funds payable to the order of the
Custodian for the account of the corresponding Acquiring Fund.
2.5 SUBSEQUENT DIVIDENDS OR INTEREST PAYMENTS. Each Transferring Class
of each Transferring Fund will pay or cause to be paid to the corresponding
Acquiring Class of the corresponding Acquiring Fund any dividends or interest
received on or after the Closing Date with respect to any of the Transferred
Assets. Each Transferring Class of each Transferring Fund will transfer to the
corresponding Acquiring Class of the corresponding Acquiring Fund any
distributions, rights or other assets received by (and attributable to the
Transferring Classes of) the Transferring Fund on or after the Closing Date as
distributions on or with respect to any of the Transferred Assets. Such assets
shall be deemed included in the Transferred Assets and shall not be separately
valued.
2.6 DISTRIBUTION OF ACQUIRING FUND SHARES. Immediately following the
transfer in Sections 2.2, 2.3 and 2.4, each Transferring Fund will distribute in
kind pro rata to the holders of record of the shares of the corresponding
Transferring Classes of the corresponding Transferring Fund, determined as of
the Valuation Time, in redemption of such shares of the Transferring Classes,
the Acquiring Fund Shares received by the Transferring Fund pursuant to
paragraph 2.2. Such distribution will be accomplished by the transfer agent of
each Acquiring Fund transferring the Acquiring Fund Shares then credited to the
account of the corresponding Transferring Funds
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on the books of the Acquiring Fund to open accounts on such books in the names
of the holders of the Transferring Funds' shares and representing the respective
pro rata number of the Acquiring Fund Shares due each such shareholder.
2.7 TRANSFER TAXES. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than that of the registered holder of the
redeemed Transferring Fund shares on the books of the Transferring Fund shall,
as a condition of such issuance and transfer, be paid by the person to whom such
Acquiring Fund Shares are to be issued and transferred.
2.8 REPORTING RESPONSIBILITIES. Any reporting responsibility of the
Transferring Funds is and shall remain the responsibility of the Transferring
Funds after the Reorganization.
2.9 EXPENSES. Janus Capital shall bear all expenses incurred in
connection with the Agreement and the transactions contemplated herein.
3. VALUATION
3.1 VALUATION OF THE TRANSFERRED ASSETS. The value of the Transferred
Assets of each Transferring Fund shall be their values computed as of the close
of the regular trading session on the New York Stock Exchange (normally 4:00
p.m., New York City time) on the Closing Date (the "Valuation Time") based on
the Transferring Fund's valuation procedures set forth in the Transferring
Fund's then-current Prospectus and Statement of Additional Information. The
aggregate net asset value of the shares of each Transferring Class of each
Transferring Fund, both full and fractional, issued and outstanding, shall be
equal to (a) the number of Transferring Class shares issued and outstanding at
the Valuation Time, multiplied by (b) the net asset value per share of a
Transferring Class share computed as of the Valuation Time, based on the
Transferring Fund's valuation procedures set forth in the Transferring Fund's
then-current Prospectus and Statement of Additional Information.
3.2 NET ASSET VALUES OF THE ACQUIRING FUNDS. The net asset value of a
share of an Acquiring Class of an Acquiring Fund as of the Valuation Time shall
be the same as net asset value per share of the corresponding Transferring Class
shares of the corresponding Transferring Fund computed as of the Valuation Time
in accordance with paragraph 3.1.
4. CLOSING AND CLOSING DATE
4.1 CLOSING TIME AND PLACE. Subject to the provisions of Section 8 of
this Agreement, the Closing Date shall be February 23, 2007, or such other date
as the parties may mutually agree. All acts taking place on the Closing Date,
other than the acts called for by paragraph 1.3 hereof, shall be deemed to take
place simultaneously as of the close of the regular trading session on the New
York Stock Exchange on the Closing Date unless otherwise provided,
notwithstanding that the Closing shall be held at 4:30 p.m., Mountain time, on
the Closing Date at the offices of Janus Capital, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, or at such other time and/or place as the parties may mutually
agree.
4.2 CUSTODIAN CERTIFICATE. Each Custodian shall deliver at the Closing
a certificate of an authorized officer stating that the Transferred Assets for
each Interim Transferring Fund have been delivered in proper form to each
Acquiring Fund.
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4.3 DELAY IN VALUATION. If at the Valuation Time (a) the trading market
or markets for portfolio securities of any Interim Transferring Fund shall be
closed to trading or trading thereon shall be restricted, or (b) trading or the
reporting of trading in such market or markets shall be disrupted so that
accurate appraisal of the value of the Transferred Assets is impracticable, the
Closing Date shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been restored.
4.4 TRANSFER AGENT CERTIFICATES. The transfer agent for the
Transferring Trust shall deliver at the Closing a certificate of an authorized
officer stating that its records contain the names and addresses of all the
shareholders of each Interim Transferring Fund and the number of outstanding
shares owned by each such shareholder immediately prior to the Closing. The
transfer agent for the Acquiring Trust shall issue and deliver to the Secretary
of the Transferring Trust a confirmation, or other evidence satisfactory to the
Transferring Trust, that the shares of each Acquiring Class of each Acquiring
Fund to be transferred to the corresponding Interim Transferring Fund on the
Closing Date have been credited to the Interim Transferring Fund's account on
the books of the Acquiring Fund.
4.5 OTHER DOCUMENTS. At the Closing, each party shall deliver to the
other such bills of sale, checks, assignments, receipts or other documents as
such other party or its counsel may reasonably request.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF THE TRANSFERRING TRUST. The
Transferring Trust represents and warrants to the Acquiring Trust as follows:
a. Structure and Standing. The Transferring Trust is a
business trust duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts and has power to
own all of its properties and assets and to carry out this Agreement.
b. SEC Registration. The Transferring Trust is registered
under the 1940 Act as an open-end management investment company, and
such registration has not been revoked or rescinded and is in full
force and effect.
c. Series and Classes. Each Transferring Fund and Transferring
Class is a duly established and designated series and class,
respectively, of the Transferring Trust. On or before the Closing Date,
the Transferring Trust will designate each Interim Transferring Fund as
a duly established and designated series of the Transferring Trust.
d. Prospectus. The current prospectus and statement of
additional information of the Transferring Classes of each Transferring
Fund conform in all material respects to the applicable requirements of
the Securities Act of 1933, as amended (the "1933 Act"), and the 1940
Act and the rules and regulations of the SEC thereunder and do not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
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e. Declaration of Trust. The Transferring Trust is not, and
the execution, delivery and performance of this Agreement will not
result, in material violation of the Transferring Trust's Amended and
Restated Agreement and Declaration of Trust dated March 18, 2003, as
amended (the "Declaration of Trust") or the Trust's By-Laws or of any
agreement, indenture, instrument, contract, lease or other undertaking
to which the Transferring Trust or any Transferring Fund is a party or
by which it is bound.
f. Contracts. The Transferring Trust has no material contracts
or other commitments outstanding (other than this Agreement) that will
be terminated with liability to any Transferring Fund's Transferring
Classes on or prior to the Closing Date.
g. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Transferring Trust
with respect to its Transferring Funds or any of their properties or
assets that, if adversely determined, would materially and adversely
affect its financial condition or the conduct of its business. The
Transferring Trust knows of no facts that might form the basis for the
institution of such proceedings and is not a party to or subject to the
provisions of any order, decree or judgment of any court or
governmental body that materially and adversely affects its business or
its ability to consummate the transactions herein contemplated.
h. Financial Statements. The Statements of Assets and
Liabilities of each Transferring Class of each Transferring Fund for
the fiscal years ended October 31, 2004, 2005 and 2006 have been
audited by PricewaterhouseCoopers, LLP, independent auditors; such
financial statements are in accordance with generally accepted
accounting principles, consistently applied; such statements (copies of
which have been furnished to the Acquiring Trust) fairly reflect the
financial condition of the Transferring Classes of the Transferring
Funds as of such dates; and there are no known contingent liabilities
of the Transferring Classes of the Transferring Funds as of such dates
not disclosed therein.
i. No Material Changes. Since October 31, 2006, there has not
been any material adverse change in the Transferring Funds' financial
condition, assets, liabilities or business other than changes occurring
in the ordinary course of business, or any incurrence by any
Transferring Fund of indebtedness maturing more than one year from the
date such indebtedness was incurred.
j. Tax Returns. At the Closing Date, all federal and other tax
returns and reports of the Transferring Funds required by law to have
been filed by such date shall have been filed, and all federal and
other taxes shall have been paid so far as due, or provision shall have
been made for the payment thereof; and, to the best of the Transferring
Trust's knowledge, no such return is currently under audit and no
assessment has been asserted with respect to any such return.
k. RIC Status. For each taxable year of the Transferring Funds
ended on or prior to the Closing Date, they have met the requirements
of subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), for qualification and treatment as a
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regulated investment company, and will continue to meet all such
requirements for the taxable year that includes the Closing Date.
l. Shares. All issued and outstanding shares of each
Transferring Class of each Transferring Fund are duly and validly
issued and outstanding, fully paid and nonassessable by the
Transferring Fund, except to the extent that under Massachusetts law
shareholders of a business trust may, under certain circumstances, be
held personally liable for its obligations. All of the issued and
outstanding shares of the Interim Transferring Funds, at the Valuation
Time, will be held by the persons and in the amounts set forth in the
records of the transfer agent as provided in paragraph 4.4. The Interim
Transferring Funds do not have outstanding any options, warrants or
other rights to subscribe for or purchase any shares of any Interim
Transferring Fund, nor is there outstanding any security convertible
into any share of any of the Interim Transferring Funds, except such as
are contemplated herein.
m. Authority to Transfer Transferred Assets. On the Closing
Date, each Interim Transferring Fund will have full right, power and
authority to sell, assign, transfer and deliver the Transferred Assets.
n. Authorization. The execution, delivery and performance of
this Agreement will have been duly authorized prior to the Closing Date
by all necessary action on the part of the Transferring Trust's Board
of Trustees; and, subject to the approval of the shareholders of each
Transferring Fund and assuming due execution and delivery hereof by the
Acquiring Trust, this Agreement will constitute the valid and legally
binding obligation of the Transferring Trust on behalf of its series,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto, and to
general principles of equity and the discretion of the court
(regardless of whether the enforceability is considered in a proceeding
in equity or at law).
o. Proxy Statement. The Proxy Statement (as defined in
paragraph 6.3 hereof) (other than information that relates to or has
been furnished by the Acquiring Trust) will, on the mailing date of the
Proxy Statement and on the Closing Date, not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which such statements were made, not
misleading.
5.2 REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING TRUST. The
Acquiring Trust represents and warrants to the Transferring Trust as follows:
a. Structure and Standing. The Acquiring Trust is a statutory
trust duly organized, validly existing and in good standing under the
laws of the State of
Delaware and has power to own its properties and
assets and to carry out this Agreement.
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b. SEC Registration. The Acquiring Trust is registered under
the 1940 Act as an open-end, management investment company, and, as of
the Closing Date, such registration will not have been revoked or
rescinded and will be in full force and effect.
c. Prospectus. Each Acquiring Fund's prospectus and statement
of additional information that is or will be included in the Acquiring
Trust's registration statement will, at the time the registration
statement becomes effective, conform in all material respects to the
applicable requirements of the 1933 Act, the 1940 Act and the rules and
regulations of the SEC thereunder and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
d. Trust Instrument. The Acquiring Trust is not, and the
execution, delivery and performance of this Agreement will not result,
in material violation of its Amended and Restated Trust Instrument
dated March 18, 2003, as amended (the "Trust Instrument"), or its
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which it is a party or by which it is bound.
e. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is currently
pending or to its knowledge threatened against the Acquiring Trust or
any of its properties or assets that, if adversely determined, would
materially and adversely affect its financial condition or the conduct
of its business. The Acquiring Trust knows of no facts that might form
the basis for the institution of such proceedings and is not a party to
or subject to the provisions of any order, decree or judgment of any
court or governmental body that materially and adversely affects its
business or its ability to consummate the transactions herein
contemplated.
f. Shares. All shares of the Acquiring Trust issued in
connection with the Reorganization will be duly and validly issued and
outstanding, fully paid and nonassessable by the Acquiring Trust,
except to the extent that under
Delaware law shareholders of a
statutory trust may, under certain circumstances, be held personally
liable for its obligations. The Acquiring Trust does not have
outstanding any options, warrants or other rights to subscribe for or
purchase any shares of the Acquiring Trust, nor is there outstanding
any security convertible into any shares of the Acquiring Trust, except
such as are contemplated herein.
g. Authorization. The execution, delivery and performance of
this Agreement will have been duly authorized prior to the Closing Date
by all necessary action, if any, on the part of the Acquiring Trust's
Board of Trustees; and, assuming due execution and delivery hereof by
the Transferring Trust, this Agreement will constitute the valid and
legally binding obligation of the Acquiring Trust on behalf of the
Acquiring Funds, enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting
creditors' rights generally and court decisions with respect thereto,
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and to general principles of equity and the discretion of the court
(regardless of whether the enforceability is considered in a proceeding
in equity or at law).
h. Proxy Statement. The Proxy Statement (only insofar as it
relates to the Acquiring Trust and is based on information furnished by
the Acquiring Trust) will, on the mailing date of the Proxy Statement
and on the Closing Date, not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which such statements were made, not misleading.
6. COVENANTS OF THE TRANSFERRING TRUST AND THE ACQUIRING TRUST
6.1 ORDINARY COURSE. The Transferring Trust will operate its business
in the ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include the declaration
and payment of customary dividends and other distributions in the ordinary
course and on the Closing Date.
6.2 SHAREHOLDER MEETING. The Transferring Trust shall call a meeting of
its Transferring Fund shareholders to consider and act upon this Agreement and
to take all other action necessary to obtain approval of the transactions
contemplated herein.
6.3 PROXY STATEMENT. The Transferring Trust and the Acquiring Trust
shall cooperate in the provision of all information reasonably necessary for the
preparation, filing and mailing of the proxy statement in connection with the
meeting of the Transferring Class shareholders to consider approval of this
Agreement and the transactions contemplated herein (the "Proxy Statement").
6.4 APPROVALS. The Acquiring Trust shall use all reasonable efforts to
obtain the approvals and authorizations required by the 1933 Act, the 1940 Act
and such of the state blue sky or securities laws as it may deem appropriate in
order to continue its operations after the Closing Date.
6.5 ADDITIONAL ACTIONS. Subject to the provisions of this Agreement,
the Transferring Trust and the Acquiring Trust will each take, or cause to be
taken, all action and do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated herein.
7. CONDITIONS PRECEDENT
7.1 CONDITIONS PRECEDENT TO OBLIGATION OF THE ACQUIRING TRUST. The
obligations of the Acquiring Trust to consummate the transactions provided for
herein shall be subject, at its election, to the performance by the Transferring
Trust of all the obligations to be performed by it hereunder on or before the
Closing Date and, in addition thereto, the following conditions:
a. Representation and Warranties. All representations and
warranties of the Transferring Trust contained in this Agreement shall
be true and correct in all material respects as of the date hereof and,
except as they may be affected by the transactions
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contemplated herein, as of the Closing with the same force and effect
as if made on the Closing Date and as of the Closing.
b. Certificates. The Transferring Trust shall have delivered
to the Acquiring Trust at the Closing a certificate executed in its
name by its President and a Vice President, in form and substance
reasonably satisfactory to the Acquiring Trust, to the effect that the
representations and warranties of the Transferring Trust made in this
Agreement are true and correct at and as of the Closing, except as they
may be affected by the transactions contemplated herein, and as to such
other matters as the Acquiring Trust shall reasonably request.
7.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRANSFERRING TRUST. The
obligations of the Transferring Trust to consummate the transactions provided
for herein shall be subject, at its election, to the performance by the
Acquiring Trust of all the obligations to be performed by it hereunder on or
before the Closing Date and, in addition thereto, the following conditions:
a. Representations and Warranties. All representations and
warranties of the Acquiring Trust contained in this Agreement shall be
true and correct in all material respects as of the date hereof and,
except as they may be affected by the transactions contemplated herein,
as of the Closing with the same force and effect as if made on the
Closing Date and as of the Closing.
b. Certificate. The Acquiring Trust shall have delivered to
the Transferring Trust at the Closing a certificate executed in its
name by its President and a Vice President, in form and substance
reasonably satisfactory to the Transferring Trust, to the effect that
the representations and warranties of the Acquiring Trust made in this
Agreement are true and correct at and as of the Closing, except as they
may be affected by the transactions contemplated herein, and as to such
other matters as the Transferring Trust shall reasonably request.
7.3 FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF THE TRANSFERRING
TRUST AND THE ACQUIRING TRUST. If any of the conditions set forth below does not
exist on or before the Closing Date with respect to the Transferring Trust or
the Acquiring Trust, the other party to this Agreement, at its option, shall not
be required to consummate the transactions contemplated herein.
a. Shareholder Approval. This Agreement and the transactions
contemplated herein shall have been approved by the requisite vote of
the holders of the outstanding shares of each Transferring Fund voting
both (i) together as a fund, and (ii) with regard to holders of the
outstanding shares of each Transferring Class, separately as classes,
in accordance with the provisions of the Transferring Trust's
Declaration of Trust and the 0000 Xxx. If the shareholders of
Transferring Classes of some but not all of the Transferring Funds
approve this Agreement and the transactions contemplated herein, the
Board of Trustees of the Transferring Trust or of the Acquiring Trust
may terminate this Agreement pursuant to Section 8 or may determine to
proceed with the Agreement and
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the transactions with respect to the Transferring Fund for which a
necessary shareholder approval was obtained.
b. Litigation. On the Closing Date, no action, suit or other
proceeding shall be pending before any court or governmental agency in
which it is sought to restrain or prohibit, or obtain damages or other
relief in connection with, this Agreement or the transactions
contemplated herein.
c. Consents and Approvals. All consents of other parties and
all other consents, orders and permits of Federal, state and local
regulatory authorities (including those of the SEC and of state Blue
Sky and securities authorities) deemed necessary by the Transferring
Trust or the Acquiring Trust to permit consummation, in all material
respects, of the transactions contemplated herein shall have been
obtained, except where failure to obtain any such consent, order or
permit would not involve a risk of a material adverse effect on the
assets or properties of the Transferring Trust or the Acquiring Trust.
d. Distribution. Each Transferring Class of each Transferring
Fund shall have declared a dividend or dividends that, together with
all previous dividends, shall have the effect of distributing to the
Transferring Fund's shareholders all of its investment company taxable
income, and net interest income excludable from gross income under
section 103(a) of the Code, for all its taxable years ended on or prior
to the Closing Date and for its current taxable year through the
Closing Date (computed without regard to any deduction for dividends
paid) and any net capital gain realized in all such taxable years
(after reduction for any capital loss carryforward).
e. Tax Opinion. The Transferring Trust shall have received an
opinion from Vedder, Price, Xxxxxxx & Kammholz, P.C. substantially to
the effect that the Transferring Funds should not recognize any gain or
loss for federal income tax purposes as a result of the in-kind
redemption of the shares of the Transferring Classes pursuant to the
Reorganization. Each of the Transferring Trust, on behalf of the
Transferring Funds, and the Acquiring Trust, on behalf of the Acquiring
Funds, shall cooperate in providing such representations as are
requested by counsel to render such opinion.
f. Amortized Cost and Market Value Deviation. The net asset
value per share of the Transferring Fund calculated using market values
shall not deviate by more than .5 of 1% from the net asset value per
share calculated using amortized cost during the period from the date
hereof to the Closing.
8. TERMINATION OF AGREEMENT
8.1 TERMINATION. This Agreement and the transactions contemplated
herein may be terminated and abandoned by resolution of the Board of Trustees of
the Transferring Trust or of the Acquiring Trust, as the case may be, at any
time at or prior to the Closing Date (notwithstanding any vote of shareholders)
if: (a) circumstances should develop that, in the opinion of either such Board,
make proceeding with this Agreement inadvisable; (b) a material breach by the
other party of any representation, warranty or agreement contained therein has
occurred; (c) a condition to the obligation of the terminating party cannot
reasonably be met.
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8.2 EFFECT OF TERMINATION. If this Agreement is terminated and the
Reorganization is abandoned pursuant to the provisions of this Section 8, this
Agreement shall become void and have no effect, without any liability on the
part of either party hereto or the Trustees, officers or shareholders of the
Transferring Trust or of the Acquiring Trust, as the case may be, in respect of
this Agreement. If this Agreement is terminated or the exchange contemplated
herein is abandoned, Janus Capital shall bear all expenses incurred in
connection with this Agreement and the transactions contemplated herein up to
the time of such termination or abandonment.
9. MISCELLANEOUS
9.1 WAIVER. At any time prior to the Closing Date, any of the
conditions set forth in Section 7 may be waived by the Board of Trustees of the
Transferring Trust or of the Acquiring Trust, as the case may be, if, in the
judgment of either, such waiver will not have a material adverse effect on the
benefits intended under this Agreement to the Transferring Trust or the
Acquiring Trust as the case may be.
9.2 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties included or provided for herein shall survive
consummation of the Reorganization.
9.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter hereof and
merges and supersedes all prior discussions, agreements and understandings of
every kind and nature between them relating to the subject matter hereof.
Neither party shall be bound by any condition, definition, warranty or
representation other than as set forth or provided in this Agreement or as may
be, on or subsequent to the date hereof, set forth in a writing signed by the
party to be bound thereby.
9.5 AUTHORIZATIONS. All agreements, representations, actions and
obligations described herein made or to be taken or undertaken by a Transferring
Fund or an Interim Transferring Fund are made and shall be taken or undertaken
by the Transferring Trust on behalf of the Transferring Fund or the Interim
Transferring Fund. All agreements, representations, actions and obligations
described herein made or to be taken or undertaken by an Acquiring Fund are made
and shall be taken or undertaken by the Acquiring Trust on behalf of the
Acquiring Fund.
9.6 TRUST DISCLOSURE. Copies of the Declaration of Trust of the
Transferring Trust and the Trust Instrument of Acquiring Trust are on file with
the Secretaries of the Transferring Trust and the Acquiring Trust, respectively.
This Agreement is executed by the undersigned officers on behalf of the
Transferring Trust and the Acquiring Trust, respectively, and not on behalf of
such officers or the Trustees of either the Transferring Trust or the Acquiring
Trust as individuals. The respective obligations of the Transferring Trust and
the Acquiring Trust under this Agreement are not binding upon any of their
respective Trustees, officers or shareholders individually.
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9.7 CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the [State of
Delaware/Commonwealth of
Massachusetts], without giving effect to principles of conflict of laws.
9.8 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which, when executed and delivered, shall be deemed to be an original.
9.9 ASSIGNMENT. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations hereunder shall be
made by either party without the written consent of the other party. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the Transferring Trust, on behalf of the Transferring Funds,
and the Acquiring Trust, on behalf of the Acquiring Funds, have caused this
Agreement and Plan of Reorganization to be executed and attested on its behalf
by its duly authorized representatives as of the date first above written.
JANUS INVESTMENT FUND on behalf of
Janus Money Market Fund and Janus
Government Money Market Fund
ATTEST: By:
------------------------------------------ ------------------------------------------
Secretary Vice President
JANUS ADVISER SERIES on behalf of Janus
Institutional Money Market Fund and Janus
Institutional Government Money Market Fund
ATTEST: By:
------------------------------------------ ------------------------------------------
Secretary Vice President
The undersigned is a party to this Agreement solely for the purpose of Sections
2.9 and 8.2.
JANUS CAPITAL MANAGEMENT LLC
ATTEST: By:
------------------------------------------ ------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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APPENDIX A TO AGREEMENT AND PLAN OF REORGANIZATION
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(Transferring Fund/Class Interim Transferring Acquiring Fund/Class (each
(each a series of Janus Fund/Class (each a series of a series of Janus Adviser
Investment Fund) Janus Investment Series) Fund)
----------------------------------------------------------------------------------------------------------------------
JANUS MONEY MARKET JANUS INTERIM MONEY JANUS INSTITUTIONAL
FUND MARKET FUND MONEY MARKET FUND
----------------------------------------------------------------------------------------------------------------------
Institutional Shares Institutional Shares Institutional Shares
----------------------------------------------------------------------------------------------------------------------
Service Shares Service Shares Service Shares
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
JANUS GOVERNMENT JANUS INTERIM JANUS INSTITUTIONAL
MONEY MARKET FUND GOVERNMENT MONEY GOVERNMENT MONEY
MARKET FUND MARKET FUND
----------------------------------------------------------------------------------------------------------------------
Institutional Shares Institutional Shares Institutional Shares
----------------------------------------------------------------------------------------------------------------------
Service Shares Service Shares Service Shares
----------------------------------------------------------------------------------------------------------------------
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