Exhibit 8(www)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 23rd day of February, 2007, by and between Janus Investment Fund, a
Massachusetts business trust (the "Predecessor Trust"), on behalf of Janus
Institutional Cash Reserves Fund, a series of the Predecessor Trust (the
"Predecessor Fund"), Janus Adviser Series, a Delaware statutory trust (the
"Successor Trust"), on behalf of Janus Institutional Cash Management Fund, a
series of the Successor Trust (the "Successor Fund"), and Janus Capital
Management LLC, a Delaware limited liability company ("JCM").
All references in this Agreement to action taken by the Predecessor Fund or
the Successor Fund shall be deemed to refer to action taken by the Predecessor
Trust and the Successor Trust, respectively, on behalf of the respective
portfolio series.
This Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368(a) of the United States Internal Revenue Code
of 1986, as amended (the "Code"). The reorganization (the "Reorganization") will
consist of the transfer by the Predecessor Fund of all of its assets to the
Successor Fund, in exchange solely for shares of beneficial interest in the
Successor Fund ("New Shares") having a net asset value equal to the net asset
value of the Predecessor Fund, the assumption by the Successor Fund of all the
liabilities of the Predecessor Fund, and the distribution of the New Shares to
the shareholders of the Predecessor Fund in complete liquidation of the
Predecessor Fund as provided herein, all upon the terms and conditions
hereinafter set forth in this Agreement.
WHEREAS, the Board of Trustees of the Predecessor Trust and the Successor
Trust has determined that it is in the best interest of the Predecessor Fund and
the Successor Fund, respectively, that the assets of the Predecessor Fund be
acquired by the Successor Fund pursuant to this Agreement and that the interests
of existing shareholders will not be diluted as a result of this transaction;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. PLAN OF REORGANIZATION
1.1 Subject to the terms and conditions herein set forth, the Predecessor
Trust shall transfer all of the assets of the Predecessor Fund, as set forth in
paragraph 1.2, to the Successor Fund, and, in exchange therefore, the Successor
Trust shall cause the Successor Fund to (i) deliver to the Predecessor Fund full
and fractional New Shares of the Successor Fund equal in number to the shares of
the Predecessor Fund outstanding as of the close of regular session trading on
the New York Stock Exchange on the Closing Date, as set forth in Article 2 and
(ii) assume all liabilities of the Predecessor Fund, as set forth in paragraph
1.2. Such transactions shall take place at the closing provided for in paragraph
2.1 (the "Closing").
1.2 The assets of the Predecessor Fund to be acquired by the Successor Fund
shall consist of all property and assets of the Predecessor Fund, whether real
personal, tangible or intangible, including, without limitation, all cash,
securities, commodities and futures interests, and dividends or interest
receivable which are owned by the Predecessor Fund and any deferred
or prepaid expenses shown as an asset on the books of the Predecessor Fund on
the closing date provided in paragraph 2.1 (the "Closing Date"). The Successor
Fund will assume all of the liabilities, expenses, costs, charges and reserves
of the Predecessor Fund of any kind, whether absolute, accrued, contingent or
otherwise in existence on the Closing Date.
1.3 Immediately after the consummation of the transaction set forth in
paragraph 1.1, the Predecessor Fund will completely liquidate and distribute pro
rata to its shareholders of record, determined as of immediately after the close
of business on the Closing Date (the "Current Shareholders"), the New Shares
received by the Predecessor Fund pursuant to paragraph 1.1. Such distribution
and liquidation will be accomplished by the transfer of the New Shares then
credited to the accounts of the Predecessor Fund on the books of the Successor
Fund to open accounts on the share records of the Successor Fund in the names of
the Current Shareholders and representing the respective pro rata number of the
New Shares due each such shareholder. All issued and outstanding shares of the
Predecessor Fund will simultaneously be canceled on the books of the Predecessor
Trust. The Successor Fund shall not issue certificates representing the New
Shares in connection with such exchange. Ownership of New Shares will be shown
on the books of the Successor Trust's transfer agent. As soon as practicable
after the Closing, the Predecessor Trust shall take all steps necessary to
effect a complete dissolution of the Predecessor Fund.
1.4 Prior to the valuation time, the Predecessor Fund shall issue to the
Successor Fund one nominal share of the Predecessor Fund for consideration of
$1.00 for the sole purpose of allowing the Predecessor Fund as sole shareholder
of the Successor Fund, to approve the investment advisory agreement between the
Successor Fund and JCM substantially similar to the current advisory agreement
between the Predecessor Fund and JCM, to take effect the day following Closing.
After this approval and before the Valuation Time, such share shall be redeemed
by the Successor Fund.
2. CLOSING AND CLOSING DATE
2.1 The Closing Date shall be February 23, 2007, or such date as the
parties may agree to in writing. All acts taking place at the Closing shall be
deemed to take place simultaneously as of immediately after the close of
business on the Closing Date unless otherwise agreed to by the parties. The
close of business on the Closing Date shall be as of 4:00 p.m. New York Time.
The Closing shall be held at the offices of JCM, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, or at such other time and/or place as the parties may agree.
2.2 The Predecessor Trust shall cause Janus Services LLC (the "Transfer
Agent"), transfer agent of the Predecessor Fund, to deliver at the Closing a
certificate of an authorized officer stating that its records contain the names
and addresses of the Current Shareholders and the number and percentage
ownership of outstanding shares of the Predecessor Fund owned by each such
shareholder immediately prior to the Closing. The Successor Fund shall issue and
deliver a confirmation evidencing the New Shares to be credited on the Closing
Date to the Secretary of the Predecessor Trust or provide evidence satisfactory
to the Predecessor Trust that such New Shares have been credited to the accounts
of the Predecessor Fund on the books of the Successor Fund. At the Closing, each
party shall deliver to the other such bills of sales, checks,
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assignments, share certificates, if any, receipts or other documents as such
other party or its counsel may reasonably request.
3. REPRESENTATIONS AND WARRANTIES
3.1 The Predecessor Trust, on behalf of the Predecessor Fund, hereby
represents and warrants to the Successor Fund as follows:
(i) the Predecessor Trust is a business trust duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts and has full corporate power and authority to conduct its
business as presently conducted;
(ii) the Predecessor Trust has full power and authority to execute,
deliver and carry out the terms of this Agreement on behalf of the
Predecessor Fund;
(iii) the execution and delivery of this Agreement on behalf of the
Predecessor Fund and the consummation of the transactions contemplated
hereby are duly authorized and no other proceedings on the part of the
Predecessor Trust or the shareholders of the Predecessor Fund are necessary
to authorize this Agreement and the transactions contemplated hereby;
(iv) this Agreement has been duly executed by the Predecessor Trust on
behalf of the Predecessor Fund and constitutes its valid and binding
obligation, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other rights
affecting creditors' rights generally, and general equitable principles;
(v) neither the execution and delivery of this Agreement by the
Predecessor Trust on behalf of the Predecessor Fund, nor the consummation
by the Predecessor Trust on behalf of the Predecessor Fund of the
transactions contemplated hereby, will conflict with, result in a breach or
violation of or constitute (or with notice, lapse of time or both) a breach
of or default under, the Predecessor Trust's Amended and Restated Agreement
and Declaration of Trust ("Declaration of Trust") or By-Laws, as each may
be amended, or any statute, regulation, order, judgment or decree, or any
instrument, contract or other agreement to which the Predecessor Trust is a
party or by which the Predecessor Trust or any of its assets is subject or
bound;
(vi) the unaudited statement of assets and liabilities of the
Predecessor Fund as of the Closing Date, determined in accordance with
generally accepted accounting principles consistently applied from the
prior audited period, accurately reflects all liabilities of the
Predecessor Fund as of the Closing Date; and
(vii) no authorization, consent or approval of any governmental or
other public body or authority or any other party is necessary for the
execution and delivery of this Agreement by the Predecessor Trust on behalf
of the Predecessor Fund or the consummation of any transactions
contemplated hereby by the Predecessor Trust, other than as shall be
obtained at or prior to the Closing.
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3.2 The Successor Trust, on behalf of the Successor Fund, hereby represents
and warrants to the Predecessor Fund as follows:
(i) the Successor Trust is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware and
has full corporate power and authority to conduct its business as presently
conducted;
(ii) the Successor Trust has full power and authority to execute,
deliver and carry out the terms of this Agreement on behalf of the
Successor Fund;
(iii) the execution and delivery of this Agreement on behalf of the
Successor Fund and the consummation of the transactions contemplated hereby
are duly authorized and no other proceedings on the part of the Successor
Trust or the shareholders of the Successor Fund are necessary to authorize
this Agreement and the transactions contemplated hereby;
(iv) this Agreement has been duly executed by the Successor Trust on
behalf of the Successor Fund and constitutes its valid and binding
obligation, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other rights
affecting creditors' rights generally, and general equitable principles;
(v) neither the execution and delivery of this Agreement by the
Successor Trust on behalf of the Successor Fund, nor the consummation by
the Successor Trust on behalf of the Successor Fund of the transactions
contemplated hereby, will conflict with, result in a breach or violation of
or constitute (or with notice, lapse of time or both constitute) a breach
of or default under, the Successor Trust's Amended and Restated Trust
Instrument (the "Trust Instrument") or By-Laws, as each may be amended, or
any statute, regulation, order, judgment or decree, or any instrument,
contract or other agreement to which the Successor Trust is a party or by
which the Successor Trust or any of its assets is subject or bound;
(vi) the net asset value per share of the Successor Fund as of the
close of regular session trading on the New York Stock Exchange on the
Closing Date reflects all liabilities of the Successor Fund as of that time
and date; and
(vii) no authorization, consent or approval of any governmental or
other public body or authority or any other party is necessary for the
execution and delivery of this Agreement by the Successor Trust on behalf
of the Successor Fund or the consummation of any transactions contemplated
hereby by the Successor Trust, other than as shall be obtained at or prior
to the Closing.
4. CONDITIONS PRECEDENT
4.1 The obligations of the Predecessor Trust on behalf of the Predecessor
Fund and of the Successor Trust on behalf of the Successor Fund to effectuate
the Reorganization shall be subject to the satisfaction of the following
conditions:
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(i) The Successor Trust shall have filed with the Securities and
Exchange Commission (the "Commission") a post-effective amendment to its
registration statement on Form N-1A under the Securities Act of 1933, as
amended (the "Securities Act"), and the Investment Company Act of 1940, as
amended (the "1940 Act"), and such amendment or amendments thereto as are
determined by the Board of Trustees of the Successor Trust to be necessary
and appropriate to effect the registration of the New Shares (the
"Registration Statement"), and the Registration Statement shall have become
effective, and no stop-order suspending the effectiveness of the
Registration Statement shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened by the Commission (and not
withdrawn or terminated);
(ii) The applicable New Shares shall have been duly qualified for
offering to the public in all states in which such qualification is
required for consummation of the transactions contemplated hereunder;
(iii) All representations and warranties of the Predecessor Trust on
behalf of the Predecessor Fund contained in this Agreement shall be true
and correct in all material respects as of the date hereof and as of the
Closing, with the same force and effect as if then made, and the Successor
Trust on behalf of the Successor Fund shall have received a certificate of
an officer of the Predecessor Trust acting on behalf of the Predecessor
Fund to that effect in form and substance reasonably satisfactory to the
Successor Trust on behalf of the Successor Fund;
(iv) All representations and warranties of the Successor Trust on
behalf of the Successor Fund contained in this Agreement shall be true and
correct in all material respects as of the date hereof and as of the
Closing, with the same force and effect as if then made, and the
Predecessor Trust on behalf of the Predecessor Fund shall have received a
certificate of an officer of the Successor Trust acting on behalf of the
Successor Fund to that effect in form and substance reasonably satisfactory
to the Predecessor Trust on behalf of the Predecessor Fund;
(v) The Predecessor Trust on behalf of the Predecessor Fund and the
Successor Trust on behalf of the Successor Fund shall have received the
written opinion of Vedder, Price, Xxxxxxx & Kammholz, P.C. satisfactory to
counsel for the Predecessor Trust and the Successor Trust, substantially to
the effect that, for federal income tax purposes:
(a) The acquisition by the Successor Fund of all the assets of
the Predecessor Fund in exchange for the Successor Fund's assumption
of all the liabilities of the Predecessor Fund and the issuance of the
New Shares, followed by the distribution by the Predecessor Fund of
such New Shares to the shareholders of the Predecessor Fund in
exchange for their shares of the Predecessor Fund and in complete
liquidation of the Predecessor Fund, will constitute a reorganization
within the meaning of Section 368(a)(1)(F) of the Code, and the
Predecessor Fund and the Successor Fund will each be "a party to a
reorganization" within the meaning of Section 368(b) of the Code;
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(b) No gain or loss will be recognized by the Predecessor Fund
(i) upon the transfer of its assets to the Successor Fund solely in
exchange for the New Shares and the assumption by the Successor Fund
of all the liabilities of the Predecessor Fund or (ii) upon the
distribution of the New Shares to the shareholders of the Predecessor
Fund in complete liquidation of the Predecessor Fund;
(c) No gain or loss will be recognized by the Successor Fund upon
the receipt of the assets of the Predecessor Fund in exchange for the
assumption of all the liabilities and obligations of the Predecessor
Fund and the issuance of the New Shares to the Predecessor Fund.
(d) The basis of the assets of the Predecessor Fund acquired by
the Successor Fund will be the same as the basis of those assets in
the hands of the Predecessor Fund immediately prior to the transfer,
and the holding period of the assets of the Predecessor Fund in the
hands of the Successor Fund will include the period during which those
assets were held by the Predecessor Fund;
(e) The shareholders of the Predecessor Fund will recognize no
gain or loss upon the exchange of all of their shares of the
Predecessor Fund solely for the New Shares;
(f) The basis of the New Shares to be received by each
shareholder of the Predecessor Fund will be the same in the aggregate
as the aggregate basis of the shares of the Predecessor Fund
surrendered by such shareholder in exchange therefor;
(g) The holding period of the New Shares to be received by each
shareholder of the Predecessor Fund will include the period during
which the shares of the Predecessor Fund surrendered by such
shareholder in exchange therefor were held, provided such shares of
the Predecessor Fund were held as a capital asset on the date of the
exchange;
(h) The Successor Fund will succeed to and take into account the
items of the Predecessor Fund described in Section 381(c) of the Code,
subject to the conditions and limitations specified in Sections 381,
382, 383 and 384 of the Code and the regulations thereunder; and
(i) The taxable year of the Predecessor Fund will not end as a
result of the Reorganization. The part of the taxable yar of the
Predecessor Fund before the Reorganization and the part of the taxable
year of the Successor Fund after the Reorganization will constitute a
single taxable year of the Successor Fund.
(vi) The Predecessor Fund's net asset value per share 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.
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5. EXPENSES
All of the expenses and costs of the Reorganization and the transactions
contemplated thereby shall be borne by JCM.
6. ENTIRE AGREEMENT
The Predecessor Trust agrees on behalf of the Predecessor Fund and the
Successor Trust agrees on behalf of the Successor Fund that this Agreement
constitutes the entire agreement between the parties.
7. TERMINATION
This Agreement and the transactions contemplated hereby may be terminated
and abandoned by resolution of the Board of Trustees of the Predecessor Trust or
the Successor Trust, at any time prior to the Closing Date, if circumstances
should develop that, in the opinion of the Board of Trustees, make proceeding
with the Agreement inadvisable.
8. AMENDMENTS
This Agreement may be amended, modified or supplemented in such manner as
may be mutually agreed upon in writing by the parties.
9. NOTICES
Any notice, report, statement or demand required or permitted by any
provisions of this Agreement shall be in writing and shall be given by prepaid
telegraph, telecopy or certified mail addressed to the parties hereto at their
principal place of business.
10. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
10.1 The Article and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.2 This Agreement may be executed in any number of counterparts each of
which shall be deemed an original.
10.3 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
10.4 This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, but no assignment or
transfer hereof or of any rights or obligations hereunder shall be made by any
party without the written consent of the other party. Nothing herein expressed
or implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
10.5 It is expressly agreed that the obligations of the Predecessor Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees
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of the Predecessor Trust personally, but shall bind only the trust property of
the Predecessor Trust, as provided in the Declaration of Trust of the
Predecessor Trust. The execution and delivery by such officers of the
Predecessor Trust shall not be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Predecessor Trust as provided in the
Declaration of Trust of the Predecessor Trust. The Predecessor Trust is a series
company with multiple series and has entered into this Agreement on behalf of
the Predecessor Fund.
10.6 It is expressly agreed that the obligations of the Successor Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Successor Trust personally, but shall bind
only the trust property of the Successor Trust, as provided in the Trust
Instrument of the Successor Trust. The execution and delivery by such officers
of the Successor Trust shall not be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Successor Trust as provided in the Trust
Instrument of the Successor Trust. The Trust is a series company with multiple
series and has entered into this Agreement on behalf of the Successor Fund.
10.7 The sole remedy of a party hereto for a breach of any representation
or warranty made in this Agreement by the other party shall be an election by
the non-breaching party not to complete the transactions contemplated herein.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date set forth above.
ATTEST JANUS INVESTMENT FUND
For and on behalf of Janus Institutional
Cash Reserves Fund
Name: /s/ Xxx Xxxxxx By: /s/ Xxxxxx Xxxxxx Xxxxx
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Asst. Secretary Name: Xxxxxx Xxxxxx Xxxxx
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Title: President
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ATTEST JANUS ADVISER SERIES
For and on behalf of Janus Institutional
Cash Management Fund
Name: /s/ Xxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
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Asst. Secretary Name: Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
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Title: Vice President
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THE UNDERSIGNED IS A PARTY TO THIS
AGREEMENT SOLELY FOR THE PURPOSES OF
SECTION 5:
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ATTEST JANUS CAPITAL MANAGEMENT LLC
Name: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Asst. Secretary Name: Xxxxx X. Xxxxxx
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Title: Executive Vice President and
Chief Financial Officer
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