FORM OF AGREEMENT AND PLAN OF REORGANIZATION
Exhibit 4(a)
THIS AGREEMENT AND PLAN OF REORGANIZATION (the
“Agreement”) is made as of this
[ ] day
of
[ ,
2012,] by and between Janus Investment Fund, a Massachusetts
business trust (the “Trust”), on behalf of World
Allocation Fund, a series of the Trust (the “Predecessor
Fund”), and Janus Moderate Allocation Fund (to be renamed
Janus Global Allocation Fund-Moderate), a 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 Class A,
Class C, Class I, Class S and Class T voting
shares of beneficial interest in the Successor Fund (the
“Successor Fund Shares”) having an aggregate net
asset value 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 S and Class T 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 the Trust has determined that
it is in the best interest of each of the Predecessor Fund and
the Successor Fund 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, 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) the Trust
shall cause the Successor Fund to deliver to the Trust full and
fractional Class A, Class C, Class I,
Class S and Class T Successor Fund Shares having
an aggregate net asset value 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 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.
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 S and Class T
Successor Fund Shares received by the 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 S and Class T 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 S and Class T 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 Trust. The Successor Fund shall not issue certificates
representing the Class A, Class C, Class I,
Class S and Class T Successor Fund Shares in
connection with such exchange. Ownership of Class A,
Class C, Class I, Class S and Class T
Successor Fund 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
[ ,
2013] 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 Janus Capital Management LLC
(“JCM”), 000 Xxxxxxx 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, 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 S and Class T Successor
Fund Shares to be credited on the Closing Date to the
Secretary of the Trust or provide evidence satisfactory to the
Trust that such Class A, Class C, Class I,
Class S and Class T 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 Trust, on behalf of the Predecessor Fund,
hereby represents and warrants to the Successor Fund as follows:
(i) the Trust is duly organized and existing under its
Amended and Restated Agreement and Declaration of Trust (the
“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 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 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 the Amended and Restated Bylaws of the Trust
(“Bylaws”), 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;
(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 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;
(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 Trust, on behalf of the Successor Fund,
hereby represents and warrants to the Predecessor Fund as
follows:
(i) the Trust is duly organized and existing under its
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 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 the Bylaws 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;
(vi) the net asset value per share of a Class A,
Class C, Class I, Class S and Class T
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 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;
(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 Trust on behalf of the
Predecessor Fund and the Trust on behalf of the Successor Fund
to effectuate the Reorganization shall be subject to the
satisfaction of the following conditions with respect to such
Reorganization:
(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
and/or JCM
to be necessary and appropriate to effect the registration of
the Class A, Class C, Class I, Class S and
Class T 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 Class A, Class C, Class I,
Class S and Class T 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 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 shall have received the opinion
of
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
of representations it shall request of the Trust.
Notwithstanding anything herein to the contrary, the Trust may
not 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.
| 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 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
of Trustees of the 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.
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, consultants, 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. 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. The Trust is a series
company with multiple series and has entered into this Agreement
on behalf of each 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.
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ATTEST
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JANUS INVESTMENT FUND | |
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Name:
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Name:
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Title:
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ATTEST
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JANUS INVESTMENT FUND | |
| For and on behalf of the Successor Fund | ||
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Name:
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By: | |
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Name:
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Title:
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