EXHIBIT 4
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this __ day of December, 2002, by and between Janus Investment Fund, a
Massachusetts business trust (the "Trust"), on behalf of the Janus Fund 2 series
of the Trust (the "Predecessor Fund"), and the Janus Fund series of the Trust
(the "Successor Fund").
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 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 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 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 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 and on the
basis of the representations and warranties contained herein, the 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) cause the Successor Fund
to deliver to the Trust a number of full and fractional New Shares of the
Successor Fund equal to the number of shares of the Predecessor Fund as of the
time and date set forth in Article 2 and (iii) assume all the 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 provided in paragraph 2.1 (the "Closing Date"). All liabilities, expenses,
costs, charges and reserves of the Predecessor Fund, to the extent that they
exist at or after the Closing, shall after the Closing attach to the Successor
Fund and may be enforced against the Successor Fund to the same extent as if the
same had been incurred by the Successor Fund.
1.3 The Predecessor Fund will 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 corresponding New Shares received
by the Trust 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 of the
corresponding class due such shareholders. All issued and outstanding shares of
the Predecessor Fund will simultaneously be canceled on the books of the 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 Trust's transfer agent. As soon as practicable after the Closing,
the 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 [February 27, 2003], or such later 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 Janus Capital Management LLC ("Janus
Capital"), 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000-0000, or at such other
time and/or place as the parties may agree.
2.2 The 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 Trust or provide evidence satisfactory to the 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, 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 Trust, on behalf of the Predecessor Fund, hereby
represents and warrants to the Successor Fund as follows:
(i) the Trust is duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts and has
full power and authority to conduct its business as presently conducted;
(ii) the 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 Trust or the shareholders of the Predecessor Fund (other than as
contemplated in paragraph 4.1(vi)) are necessary to authorize this Agreement and
the transactions contemplated hereby;
(iv) this Agreement has been duly executed by the
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 Trust on behalf of the Predecessor Fund, nor the consummation
by the 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
Declaration of Trust or By-Laws of the Trust, as each may be amended, or any
statute, regulation, order, judgment or decree, or any instrument, contract or
other agreement to which the Trust is a party or by which the Trust or any of
its assets is subject or bound; and
(vi) 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 Trust on behalf of the
Predecessor Fund or the consummation of any transactions contemplated hereby by
the Trust, other than as shall be obtained at or prior to the Closing.
3.2 The Trust, on behalf of the Successor Fund, hereby
represents and warrants to the Predecessor Fund as follows:
(i) The Trust is duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts and has
full power and authority to conduct its business as presently conducted;
(ii) the 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 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
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 Trust on behalf of the Successor Fund, nor the consummation by
the 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
Declaration of Trust or By-Laws of the Trust, as each may be amended, or any
statute, regulation, order, judgment or decree, or any instrument, contract or
other agreement to which the Trust is a party or by which the Trust or any of
its assets is subject or bound; and
(vi) 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 Trust on behalf of the
Successor Fund or the consummation of any transactions contemplated hereby by
the Trust, other than as shall be obtained at or prior to the Closing.
4. CONDITIONS PRECEDENT
4.1 The obligations of the Trust on behalf of each of the Predecessor
Fund and the Successor Fund to effectuate the Reorganization shall be subject to
the satisfaction of the following conditions:
(i) The 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 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 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 Trust on behalf of the
Successor Fund shall have received a certificate of an officer of the Trust
acting on behalf of the Predecessor Fund to that effect in form and substance
reasonably satisfactory to the Trust on behalf of the Successor Fund;
(iv) All representations and warranties of the 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 Trust on behalf of the Predecessor
Fund shall have received a certificate of an officer of the Trust acting on
behalf of the Successor Fund to that effect in form and substance reasonably
satisfactory to the Trust on behalf of the Predecessor Fund;
(v) The Trust on behalf of each of the Predecessor Fund and
the Successor Fund shall have received an opinion from Xxxxxxx Procter LLP
regarding certain tax matters in connection with the Reorganization.
5. EXPENSES
All of the expenses and costs of the Reorganization and the
transactions contemplated thereby shall be borne by Janus Capital.
6. ENTIRE AGREEMENT
The Trust agrees on behalf of each of the Predecessor Fund and 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 Trust, at
any time prior to the Closing Date, if circumstances should develop that, in the
opinion of the Board, 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 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 the Trust hereunder
shall not be binding upon any of the trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery by such officers of the 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 Trust as provided in
the Declaration of Trust of the Trust. The Trust is a series company with a
single series and has entered into this Agreement on behalf of the Predecessor
Fund and 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 INVESTMENT FUND
For and on behalf of Janus Fund
Name: By:
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Secretary Name:
Title:
ATTEST JANUS INVESTMENT FUND
For and on behalf of Janus Fund 2
Name: By:
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Secretary Name:
Title:
