FORM OF AGREEMENT AND PLAN OF REORGANIZATION
Exhibit 4(b)
THIS AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is made as of this [ ] day of [ ],
2010, by and between Janus Investment Fund, a Massachusetts business trust (the “Trust”), on behalf
of Janus Research Core Fund, a series of the Trust (the “Predecessor Fund”), and Janus Growth and
Income Fund, 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 D, Class I, Class R, 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 D, Class I, Class R, 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 D, Class I, Class R, 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 D, Class I, Class R, 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 D, Class I, Class
R, 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 D, Class I, Class R, Class S and Class T Successor Fund Shares due to such
shareholders. All issued and outstanding shares
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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 D, Class I,
Class R, Class S and Class T Successor Fund Shares in connection with such exchange. Ownership of
Class A, Class C, Class D, Class I, Class R, 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 [January 28, 2011], 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 D, Class I, Class R, 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 D, Class I, Class R, 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;
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(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 D, Class I, Class R, 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
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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 D, Class I, Class R, 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 applicable Class A, Class C, Class D, Class I, Class R, 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 [law firm] 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 [law firm] 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
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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.
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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 the Predecessor Fund | ||||
Name:
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By: | |||
| Name: | ||||
| Title: | ||||
| ATTEST | JANUS INVESTMENT FUND | |||
| For and on behalf of the Successor Fund | ||||
Name:
|
By: | |||
| Name: | ||||
| Title: | ||||
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