Exhibit (h)(39)
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of this
2nd day of July, 2009, by and among Janus Adviser Series, a Delaware statutory
trust (the "JAD Trust"), on behalf of Janus Adviser Orion Fund, a series of the
JAD Trust (the "Predecessor Fund"), Janus Investment Fund (the "JIF Trust"), a
Massachusetts business trust, on behalf of Janus Orion Fund, a series of the JIF
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 JIF Trust or JAD
Trust on behalf of the respective portfolio series.
This Agreement is intended to be and is adopted as a plan of reorganization and
liquidation 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 or
substantially all of its assets to the Successor Fund, in exchange solely for
Class A, Class C, Class I, Class R and Class S voting shares of beneficial
interest in the Successor Fund (the "Successor Fund Shares") having an aggregate
net asset value approximately equal to the aggregate net asset value of the same
class of shares of the Predecessor Fund, the assumption by the Successor Fund of
all the liabilities of the Predecessor Fund, and the distribution of the Class
A, Class C, Class I, Class R and Class S Successor Fund 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 each of the JAD Trust and the JIF 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 in accordance with
the applicable statutes of the Commonwealth of Massachusetts and the State of
Delaware, and that the interests of existing shareholders will not be diluted as
a result of this transaction;
WHEREAS, concurrently herewith, the Board of Trustees of each of the JAD Trust
and the JIF Trust are entering into separate Plans of Reorganization which
contemplate the reorganization of certain series of the JAD Trust into existing
series of the JIF Trust (each a "Preexisting Fund Reorganization"); and
WHEREAS, concurrently herewith, the Board of Trustees of each of the JAD Trust
and the JIF Trust are entering into a separate Plan of Reorganization which
contemplates the reorganization of certain series of the JAD Trust into newly
created series of the JIF Trust (each a "Shell Reorganization").
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. PLAN OF REORGANIZATION
1.1 Subject to the terms and conditions herein set forth, the JAD Trust shall
(i) transfer all or substantially all of the assets of the Predecessor Fund, as
set forth in paragraph 1.2, to the Successor Fund, (ii) the JIF Trust shall
cause the Successor Fund to deliver to the JAD Trust full and fractional Class
A, Class C, Class I, Class R and Class S Successor Fund Shares having an
aggregate net asset value approximately equal to the value of the aggregate net
assets of the same class of shares of the Predecessor Fund as of the close of
regular session trading on the New York Stock Exchange on the Closing Date, as
set forth in paragraph 2.1 (the "Closing Date") and (iii) the JIF Trust shall
cause the Successor Fund to 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, 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. 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.
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1.3 The Predecessor Fund will distribute pro rata to its shareholders of record
of the applicable classes, determined as of immediately after the close of
business on the Closing Date (the "Current Shareholders"), the Class A, Class C,
Class I, Class R and Class S Successor Fund Shares received by the JAD Trust
pursuant to paragraph 1.1. Such distribution and liquidation will be
accomplished by the transfer of the Class A, Class C, Class I, Class R and Class
S Successor Fund 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 Class A, Class C, Class I, Class R and Class S
Successor Fund Shares due to such shareholders. All issued and outstanding
shares of the Predecessor Fund will simultaneously be canceled on the books of
the JAD Trust. The Successor Fund shall not issue certificates representing the
Class A, Class C, Class I, Class R and Class S Successor Fund Shares in
connection with such exchange. Ownership of Class A, Class C, Class I, Class R
and Class S Successor Fund Shares will be shown on the books of the JIF Trust's
transfer agent. As soon as practicable after the Closing, the JAD Trust shall
take all steps necessary to effect a complete liquidation of the Predecessor
Fund.
2. CLOSING AND CLOSING DATE
2.1 The Closing Date shall be July 2, 2009, or such other 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 00000-0000, or
at such other time and/or place as the parties may agree.
2.2 The JAD 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, class, 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 Class A, Class C, Class I, Class R and
Class S Successor Fund Shares to be credited on the Closing Date to the
Secretary of the JAD Trust or provide evidence satisfactory to the JAD Trust
that such Class A, Class C, Class I, Class R and Class S Successor Fund 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, 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 JAD Trust, on behalf of the Predecessor Fund, hereby represents and
warrants to the Successor Fund as follows:
(i) the JAD Trust is a trust duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full power
and authority to conduct its business as presently conducted;
(ii) the JAD 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
JAD 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 JAD 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 JAD Trust
on behalf of the Predecessor Fund, nor the consummation by the JAD
Trust on behalf of the Predecessor Fund of
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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 JAD Trust's Amended and
Restated Trust Instrument ("JAD Trust Instrument") or Bylaws of the
JAD Trust, as each may be amended, or any statute, regulation, order,
judgment or decree, or any instrument, contract or other agreement to
which the JAD Trust is a party or by which the JAD 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;
(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 JAD Trust on behalf of
the Predecessor Fund or the consummation of any transactions
contemplated hereby by the JAD Trust, other than as shall be obtained
at or prior to the Closing;
(viii) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Predecessor Fund
required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct in all
material respects, and all Federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have
been paid or provision shall have been made for the payment thereof;
and
(ix) For each taxable year of its operation (including the taxable year
which ends on the Closing Date), the Predecessor Fund has met (or will
meet) the requirements of Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code") for qualification as a regulated
investment company, has been (or will be) eligible to and has computed
(or will compute) its federal income tax under Section 852 of the
Code, and will have distributed all of its investment company taxable
income and net capital gain (as defined in the Code) that has accrued
through the Closing Date.
3.2 The JIF Trust, on behalf of the Successor Fund, hereby represents and
warrants to the Predecessor Fund as follows:
(i) the JIF Trust is duly organized and existing under its Amended and
Restated Agreement and Declaration of Trust (the "JIF Declaration of
Trust") and the laws of the Commonwealth of Massachusetts as a
voluntary association with transferable shares of beneficial interest
commonly referred to as a "Massachusetts business trust";
(ii) the JIF 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
JIF 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 JIF 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 JIF Trust
on behalf of the Successor Fund, nor the consummation by the JIF 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 JIF Declaration of Trust or the Amended and
Restated Bylaws of the JIF Trust, as each may be amended, or any
statute,
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regulation, order, judgment or decree, or any instrument, contract or
other agreement to which the JIF Trust is a party or by which the JIF
Trust or any of its assets is subject or bound;
(vi) the net asset value per share of a Class A, Class C, Class I, Class R
and Class S Successor Fund Share 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;
(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 JIF Trust on behalf of
the Successor Fund or the consummation of any transactions
contemplated hereby by the JIF Trust, other than as shall be obtained
at or prior to the Closing;
(viii) On the Closing Date, all Federal and other tax returns, dividend
reporting forms, and other tax-related reports of the Successor Fund
required by law to have been filed by such date (including any
extensions) shall have been filed and are or will be correct in all
material respects, and all Federal and other taxes shown as due or
required to be shown as due on said returns and reports shall have
been paid or provision shall have been made for the payment thereof;
and
(ix) For each taxable year of its operation (including the taxable year
which includes the Closing Date), the Successor Fund has met (or will
meet) the requirements of Subchapter M of the Code for qualification
as a regulated investment company, has been (or will be) eligible to
and has computed (or will compute) its federal income tax under
Section 852 of the Code, and has distributed all of its investment
company taxable income and net capital gain (as defined in the Code)
for periods ending prior to the Closing Date.
4. CONDITIONS PRECEDENT
4.1 The obligations of the JAD Trust on behalf of each Predecessor Fund and the
JIF Trust on behalf of each Successor Fund to effectuate the Reorganization
shall be subject to the satisfaction of the following conditions with respect to
such Reorganization:
(i) The JIF Trust shall have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form N-14
under the Securities Act of 1933, as amended (the "Securities Act")
and such amendment or amendments thereto as are determined by the
Board of Trustees of the JIF Trust and/or JCM to be necessary and
appropriate to effect the registration of the Class A, Class C, Class
I, Class R and Class S Successor Fund 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 Class A, Class C, Class I, Class R and Class S
Successor Fund 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 JAD 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 JIF Trust on
behalf of the Successor Fund shall have received a certificate of an
officer of the JAD Trust acting on behalf of the Predecessor Fund to
that effect in form and substance reasonably satisfactory to the JIF
Trust on behalf of the Successor Fund;
(iv) All representations and warranties of the JIF 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 JAD Trust on
behalf of the Predecessor Fund shall have received a certificate of an
officer of the JIF Trust acting on behalf of
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the Successor Fund to that effect in form and substance reasonably
satisfactory to the JAD Trust on behalf of the Predecessor Fund;
(v) The JIF Trust and the JAD Trust shall have received the opinion of
Dechert LLP addressed to each of them substantially to the effect
that, based upon certain facts, assumptions, and representations, the
transaction contemplated by this Agreement shall constitute a tax-free
reorganization for Federal income tax purposes. The delivery of such
opinion is conditioned upon receipt by Dechert LLP of representations
it shall request of JCM, the JIF Trust and the JAD Trust.
Notwithstanding anything herein to the contrary, neither the JIF Trust
nor the JAD Trust may waive the condition set forth in this paragraph;
(vi) Unless otherwise determined by the officers of the Predecessor Fund,
the Predecessor Fund shall have declared and paid a distribution or
distributions prior to the Closing that, together with all previous
distributions, shall have the effect of distributing to its
shareholders (i) all of its investment company taxable income and all
of its net realized capital gains, if any, for the period from the
close of its last fiscal year to 4:00 p.m. New York Time on the
Closing; and (ii) any undistributed investment company taxable income
and net realized capital gains from any period to the extent not
otherwise already distributed; and
(vii) The conditions precedent to (A) each of the Preexisting Fund
Reorganizations and (B) each of the Shell Reorganizations shall have
been satisfied, unless the Board of Trustees of the JAD Trust and/or
the JIF Trust shall have waived this condition and deemed it to be in
the best interests of the Predecessor Fund that the Reorganization
should proceed.
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 JAD Trust agrees on behalf of the Predecessor Fund and the JIF 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 JIF Trust or the Board
of Trustees of the JAD Trust, at any time prior to the Closing Date, if
circumstances should develop that, in the opinion of the Board of Trustees of
the JIF Trust or the Board of Trustees of the JAD Trust, 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.
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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 Commonwealth of Massachusetts.
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 each of the JIF Trust and
JAD Trust hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of each trust personally, but shall bind
only the trust property of the trusts, as provided in the JAD Trust Instrument
and the JIF Declaration of Trust, respectively, of each trust. The execution and
delivery by such officers of the Trusts 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 each Trust as provided in the JAD
Trust Instrument and the JIF Declaration of Trust, respectively. The JAD Trust
is a series company with multiple series and has entered into this Agreement on
behalf of the Predecessor Fund. The JIF Trust is a series company with multiple
series and has entered into this Agreement on behalf of the Successor Fund.
10.6 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 ADVISER SERIES
For and on behalf of the Predecessor
Fund
Name: By:
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Name: Xxxxxxxxx Xxxxxxxxxx-Xxxxxx
Title: Vice President, Chief Legal
Counsel and Secretary
ATTEST JANUS INVESTMENT FUND
For and on behalf of the Successor Fund
Name: By:
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Chief
Compliance Officer
ATTEST JANUS CAPITAL MANAGEMENT LLC
Name: By:
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, General
Counsel and Secretary
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