EXHIBIT 8(c)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as
of this 26th day of August, 2003, by and between Janus Adviser, a Delaware
statutory trust (the "Trust"), on behalf of U.S. Value Fund and International
Equity Fund series of the Trust (each a "Successor Fund" and collectively, the
"Successor Funds"), and Vontobel Funds, Inc., a Maryland corporation (the
"Corporation"), on behalf of the Vontobel U.S. Value Fund and Vontobel
International Equity Fund series of the Corporation (each a "Predecessor Fund"
and collectively, the "Predecessor Funds").
All references in this Agreement to action taken by the Predecessor
Funds or the Successor Funds shall be deemed to refer to action taken by the
Corporation or the Trust, respectively.
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 each
Predecessor Fund of all or substantially all of its assets to the corresponding
Successor Fund, in exchange solely for shares of beneficial interest in the
corresponding Successor Fund (in the case of Janus Adviser-U.S. Value Fund, the
"Janus Value Fund Shares" and in the case of Janus Adviser-International Equity
Fund, the "Janus International Fund Shares") having a net asset value equal to
the net asset value of the Predecessor Fund, the assumption by each Successor
Fund of all the known liabilities of the corresponding Predecessor Fund, and the
distribution of the Janus Value Fund Shares and the Janus International Fund
Shares to the shareholders of the applicable Predecessor Fund in complete
liquidation of the Predecessor Funds as provided herein, all upon the terms and
conditions hereinafter set forth in this Agreement.
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interest of each Predecessor Fund that the assets of each
Predecessor Fund be acquired by the corresponding Successor Fund pursuant to
this Agreement and in accordance with the applicable statutes of the State of
Maryland and the State of Delaware and that the interests of existing
shareholders will not be diluted as a result of this transaction;
WHEREAS, the Board of Trustees of the Trust has determined that it is
in the best interest of each Successor Fund that the assets of the corresponding
Predecessor Fund be acquired by each Successor Fund pursuant to this Agreement
and in accordance with the applicable statutes of the State of Maryland and the
State of Delaware 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 requisite approval of the Predecessor Funds'
shareholders and the other terms and conditions herein set forth and on the
basis of the representations and warranties contained herein, the Corporation
shall transfer all or substantially all of the assets of each Predecessor Fund,
as set forth in paragraph 1.2, to the corresponding Successor Fund, and the
Trust shall (i) cause the Successor Funds to deliver to the Corporation a number
of full and fractional Janus Value Fund Shares and Janus International Fund
Shares equal to the number of shares of the corresponding Predecessor Fund, as
of the time and date set forth in Article 2 and (ii) assume all the known
liabilities of the Predecessor Funds, 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 each Predecessor Fund to be acquired by the
corresponding Successor Fund shall consist of all property, including, without
limitation, all cash, securities, commodities and futures interests, and
dividends or interest receivable that are owned by such 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
known liabilities, expenses, costs, charges and reserves of each Predecessor
Fund, to the extent that they exist at or after the Closing, shall after the
Closing attach to the corresponding Successor Fund, and may be enforced against
such Successor Fund to the same extent as if the same had been incurred by the
Successor Fund.
1.3 Each 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 applicable Janus Value Fund
Shares and Janus International Fund Shares received by the Corporation pursuant
to paragraph 1.1. Such distribution and liquidation will be accomplished by the
transfer of Janus Value Fund Shares and Janus International Fund Shares then
credited to the accounts of the applicable Predecessor Fund on the books of the
corresponding Successor Fund to open accounts on the share records of the
corresponding Successor Fund in the names of the applicable Current Shareholders
and representing the respective pro rata number of Janus Value Fund Shares and
Janus International Fund Shares, as applicable, of the corresponding class due
such shareholders. All issued and outstanding shares of each Predecessor Fund
will simultaneously be canceled on the books of the Corporation. The Successor
Funds shall not issue certificates representing the Janus Value Fund Shares and
Janus International Fund Shares, as applicable, in connection with such
exchange. Ownership of Janus Value Fund Shares and Janus International Fund
Shares will be shown on the books of the Trust's transfer agent. As soon as
practicable after the Closing, the Corporation shall take all steps necessary to
effect a complete liquidation of the Predecessor Funds.
1.4 Any reporting responsibility of the Predecessor Funds including,
but not limited to, the responsibility for filing of regulatory reports, tax
returns, or other documents with the U.S. Securities and Exchange Commission
(the "Commission"), any state securities commission, and any federal, state or
local tax authorities or any other relevant regulatory authority, is and shall
remain the responsibility of the Predecessor Funds.
1.5 All books and records of each Predecessor Fund, including all books
and records required to be maintained under the Investment Company Act of 1940,
as amended (the "1940 Act") and the rules and regulations thereunder, shall be
available to the corresponding Successor Fund from and after the Closing Date
and shall be turned over to such Successor Fund as soon as practicable following
the Closing Date.
2. CLOSING AND CLOSING DATE
2.1 The Closing Date shall be September 26, 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 Corporation shall direct Xxxxx Brothers Xxxxxxxx & Co. (the
"Custodian"), as custodian for the Predecessor Funds, to deliver, at the
Closing, a certificate of an authorized officer stating that (i) assets shall
have been delivered in proper form to the Successor Funds prior to or on the
Closing Date, and (ii) all necessary taxes in connection with the delivery of
the assets, including all applicable federal and state stock transfer stamps, if
any, have been paid or provision for payment has been made. Each Predecessor
Fund's portfolio securities represented by a certificate or other written
instrument shall be presented for examination by the Custodian to the custodian
for the Successor Funds no later than five business days preceding the Closing
Date, and shall be transferred and delivered by each Predecessor Fund as of the
Closing Date for the account of the corresponding Successor Fund duly endorsed
in proper form for transfer in such condition as to constitute good delivery
thereof. The Custodian shall deliver, as of the Closing Date, by book entry, in
accordance with the customary practices of the Custodian and the securities
depositories (as defined in Rule 17f-4 under the 0000 Xxx) in which each
Predecessor Fund's assets are deposited, each Predecessor Fund's assets
deposited with such depositories. The cash to be transferred by the Predecessor
Funds shall be delivered by wire transfer of federal funds on the Closing Date.
2.3 The Corporation shall cause Fund Services, Inc. (the "Transfer
Agent"), transfer agent of the Predecessor Funds, 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 each Predecessor Fund owned by each such
shareholder immediately prior to the Closing. The Successor Funds shall issue
and deliver a confirmation evidencing the Janus Value Fund Shares and the Janus
International Fund Shares to be credited on the Closing Date to the Secretary of
the Corporation or provide evidence satisfactory to the Corporation that such
Janus Value Fund Shares and Janus International Fund Shares have been credited
to the accounts of the corresponding Predecessor Fund on the books of the
applicable 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.
2.4 (i) The value of the assets of each Predecessor Fund shall be the
value of such assets computed as of immediately after the close of regular
trading of the New York Stock Exchange and after the declaration of any
dividends on the Closing Date, using the valuation procedures set forth in the
Trust's Trust Instrument and its prospectus and statement of additional
information, together with any other valuation procedures established by the
trustees of the Trust.
(ii) The net asset value of each Janus Value Fund Share and Janus
International Fund Share shall be determined as of the close of regular trading
of the New York Stock Exchange, using the valuation procedures set forth in the
Trust's Trust Instrument and its prospectus and statement of additional
information, together with any other valuation procedures established by the
trustees of the Trust.
(iii) The number of Janus Value Fund Shares and Janus International
Fund Shares to be issued (including fractional shares, if any) in exchange for
the assets of the corresponding Predecessor Fund shall be determined by dividing
the value of the applicable Predecessor Fund's net assets determined using the
valuation procedures referred to in paragraph 2.4(i), by the net asset value of
a Janus Value Fund Share or a Janus International Fund Share, as applicable,
determined in accordance with paragraph 2.4(ii).
(iv) All computations of value shall be made by or under the
direction of the Predecessor Funds' and the Successor Funds' respective record
keeping agents, if applicable, and shall be subject to review by the Predecessor
Funds' record keeping agent and by the Predecessor Funds' and the Successor
Funds' respective independent accountants.
3. REPRESENTATIONS AND WARRANTIES
3.1 The Corporation, on behalf of the Predecessor Funds, hereby
represents and warrants to the Successor Funds as follows:
(i) the Corporation is duly incorporated, validly existing and in
good standing under the laws of the State of Maryland and has full power and
authority to conduct its business as presently conducted;
(ii) the Corporation has full power and authority to execute,
deliver and carry out the terms of this Agreement on behalf of the Predecessor
Funds;
(iii) the execution and delivery of this Agreement on behalf of the
Predecessor Funds and the consummation of the transactions contemplated hereby
are duly authorized and no other proceedings on the part of the Corporation or
the shareholders of the Predecessor Funds (other than as contemplated in
paragraph 4.2(v)) are necessary to authorize this Agreement and the transactions
contemplated hereby;
(iv) this Agreement has been duly executed by the Corporation on
behalf of the Predecessor Funds and constitutes their 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
Corporation on behalf of the Predecessor Funds, nor the consummation by the
Corporation on behalf of the Predecessor Funds 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 Articles
of Incorporation or By-Laws of the Corporation, as each may be amended, or any
statute, regulation, order, judgment or decree, or any instrument, contract or
other agreement to which the Corporation is a party or by which the Corporation
or any of its assets is subject or bound;
(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 Corporation on behalf of the Predecessor
Funds or the consummation of any transactions contemplated hereby by the
Corporation, other than as shall be obtained at or prior to the Closing;
(vii) The current prospectus and statement of additional
information of the Predecessor Funds and each prospectus and statement of
additional information of the Predecessor Funds used at all times prior to the
date of this Agreement conforms or conformed at the time of its use in all
material respects to the applicable requirements of the Securities Act of 1933,
as amended (the "1933 Act") and the 1940 Act and the rules and regulations of
the Commission thereunder and does not or did not at the time of its use include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not materially
misleading;
(viii) On the Closing Date, the Corporation, on behalf of the
Predecessor Funds, will have good and marketable title to the assets and full
right, power, and authority to sell, assign, transfer and deliver such assets
hereunder free of any liens or other encumbrances, and upon delivery and payment
for such assets, the Trust, on behalf of the Successor Funds, will acquire good
and marketable title thereto, subject to no restrictions on the full transfer
thereof, including such restrictions as might arise under the 1933 Act, other
than as disclosed to the Successor Funds;
(ix) The execution, delivery and performance of this Agreement will
not result in the acceleration of any obligation, or the imposition of any
penalty, under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Corporation, on behalf of the Predecessor Funds, is a
party or by which it is bound;
(x) All material contracts or other commitments of the Predecessor
Funds (other than this Agreement and certain investment contracts, including
options, futures, and forward contracts) will terminate without liability to the
Predecessor Funds on or prior to the Closing Date;
(xi) Except as otherwise disclosed in writing to and accepted by
the Trust, on behalf of the Successor Funds, no litigation or administrative
proceeding or investigation of or before any court or governmental body is
presently pending or, to its knowledge, threatened against the Predecessor Funds
or any of its properties or assets that, if adversely determined, would
materially and adversely affect its financial condition or the conduct of its
business. The Corporation, on behalf of the Predecessor Funds, knows of no facts
which might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of any
court or governmental body which materially and adversely affects its business
or its ability to consummate the transactions herein contemplated;
(xii) The Statement of Assets and Liabilities, Statements of
Operations and Changes in Net Assets, and Portfolio of Investments of the
Predecessor Funds at December 31, 2002 have been audited by Xxxx, Xxxxxx &
Xxxxx, independent accountants, and are in accordance with generally accepted
accounting principles ("GAAP") consistently applied, and such statements (copies
of which have been furnished to the Successor Funds) present fairly, in all
material respects, the financial condition of the Predecessor Funds as of such
date in accordance with GAAP, and there are no known contingent liabilities of
the Predecessor Funds required to be reflected on a balance sheet (including the
notes thereto) in accordance with GAAP as of such date not disclosed therein;
(xiii) Since December 31, 2002, there has not been any material
adverse change in the Predecessor Funds' financial condition, assets,
liabilities or business, other than changes occurring in the ordinary course of
business, or any incurrence by the Predecessor Funds of indebtedness maturing
more than one year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Successor Funds. For the purposes of
this subparagraph (j), a decline in net asset value per share of the Predecessor
Funds due to declines in market values of securities in the Predecessor Funds'
portfolio, the discharge of Predecessor Funds liabilities, or the redemption of
Predecessor Funds shares by shareholders of the Predecessor Funds shall not
constitute a material adverse change;
(xiv) On the Closing Date, all Federal and other tax returns,
dividend reporting forms, and other tax-related reports of the Predecessor Funds
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 to the best of the Predecessor Funds' knowledge, no
such return is currently under audit and no assessment has been asserted with
respect to such returns;
(xv) For each taxable year of their operation (including the
taxable year ending on the Closing Date), the Predecessor Funds have met the
requirements of Subchapter M of the Code for qualification as a regulated
investment company and have elected to be treated as such, have been eligible to
and have computed (or will compute) their federal income tax under Section 852
of the Code, and will have distributed all of their investment company taxable
income and net capital gain (as defined in the Code) that has accrued through
the Closing Date, and before the Closing Date will have declared dividends
sufficient to distribute all of their investment company taxable income and net
capital gain for the period ending on the Closing Date;
(xvi) All issued and outstanding shares of the Predecessor Funds
are, and on the Closing Date will be, duly and validly issued and outstanding,
fully paid and non-assessable by the Corporation. All of the issued and
outstanding shares of the Predecessor Funds will, at the time of Closing, be
held by the persons and in the amounts set forth in the records of the Transfer
Agent, on behalf of the Predecessor Funds, as provided in paragraph 2.3. The
Predecessor Funds do not have outstanding any options, warrants or other rights
to subscribe for or purchase any of the shares of the Predecessor Funds, nor is
there outstanding any security convertible into any of the Predecessor Funds'
shares; and
(xvii) The information to be furnished by the Predecessor Funds
for use in registration statements, proxy materials and other documents filed or
to be filed with any federal, state or local regulatory authority (including the
National Association of Securities Dealers, Inc.), which may be necessary in
connection with the transactions contemplated hereby, shall be accurate and
complete in all material respects and shall comply in all material respects with
Federal securities and other laws and regulations thereunder applicable thereto.
3.2 The Trust, on behalf of the Successor Funds, hereby represents and
warrants to the Predecessor Funds as follows:
(i) The Trust is 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. The Trust is a newly
formed entity and shall not have commenced operations prior to the Closing Date;
(ii) the Trust has full power and authority to execute, deliver
and carry out the terms of this Agreement on behalf of the Successor Funds;
(iii) the execution and delivery of this Agreement on behalf of the
Successor Funds 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 Funds 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 Funds 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 Funds, 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 Trust
Instrument 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;
(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 Funds or
the consummation of any transactions contemplated hereby by the Trust, other
than as shall be obtained at or prior to the Closing;
(vii) The execution, delivery and performance of this Agreement
will not result in the acceleration of any obligation, or the imposition of any
penalty, under any agreement, indenture, instrument, contract, lease, judgment
or decree to which the Trust, on behalf of the Successor Funds, is a party or by
which it is bound;
(viii) Except as otherwise disclosed in writing to and accepted by
the Corporation, on behalf of the Predecessor Funds, no litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or, to its knowledge, threatened against
the Successor Funds or any of its properties or assets that, if adversely
determined, would materially and adversely affect its financial condition or the
conduct of its business. The Trust, on behalf of the Successor Funds, knows of
no facts which might form the basis for the institution of such proceedings and
is not a party to or subject to the provisions of any order, decree or judgment
of any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein contemplated;
(ix) All issued and outstanding shares of the Successor Funds are,
and on the Closing Date will be, duly and validly issued and outstanding, fully
paid and non-assessable by the Trust. The Successor Funds do not have
outstanding any options, warrants or other rights to subscribe for or purchase
any shares of the Successor Funds, nor is there outstanding any security
convertible into any shares of the Successor Funds; and
(x) The Janus Value Fund Shares and the Janus International Fund
Shares to be issued and delivered to the Predecessor Funds, for the account of
the applicable Current Shareholders, pursuant to the terms of this Agreement,
will on the Closing Date have been duly authorized and, when so issued and
delivered, will be duly and validly issued shares of the Successor Funds, and
will be fully paid and non-assessable.
4. CONDITIONS PRECEDENT
4.1 The obligations of the Corporation on behalf of the Predecessor
Funds to effectuate the Reorganization shall be subject to the satisfaction of
the following conditions:
(i) The Trust shall have filed with the Commission a registration
statement on Form N-14 under the 1933 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 Janus Value Fund Shares and
the Janus International 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 Janus Value Fund Shares and the Janus
International 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 Successor Funds 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 Corporation on behalf of the
Predecessor Funds shall have received a certificate of an officer of the Trust
acting on behalf of the Successor Funds to that effect in form and substance
reasonably satisfactory to the Corporation on behalf of the Predecessor Funds;
and
(iv) The Corporation on behalf of the Predecessor Funds shall have
received an opinion from Xxxxxxx Procter LLP regarding certain tax matters in
connection with the Reorganization.
4.2 The obligations of the Trust on behalf of the Successor Funds to
effectuate the Reorganization shall be subject to the satisfaction of the
following conditions:
(i) The Trust shall have filed the Registration Statement with the
Commission, 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 Janus Value Fund Shares and the Janus
International 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 Corporation on
behalf of the Predecessor Funds 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 Funds shall have received a certificate of an officer of the
Corporation acting on behalf of the Predecessor Funds to that effect in form and
substance reasonably satisfactory to the Trust on behalf of the Successor Funds;
(iv) The Trust on behalf of each of the Successor Funds shall have
received an opinion from Xxxxxxx Procter LLP regarding certain tax matters in
connection with the Reorganization; and
(v) The shareholders of the Predecessor Funds shall have approved
this Agreement at a special meeting of the shareholders of the Predecessor
Funds.
5. COVENANTS OF THE PREDECESSOR FUNDS AND THE SUCCESSOR FUNDS
5.1 The Successor Funds and the Predecessor Funds covenant to operate
their respective business in the ordinary course between the date hereof and the
Closing Date, it being understood that such ordinary course of business will
include the declaration and payment of customary dividends and distributions,
and any other distribution that may be advisable.
5.2 The Predecessor Funds covenant to call a meeting of the
shareholders of the Predecessor Funds to consider and act upon this Agreement
and to take all other action necessary to obtain approval of the transactions
contemplated herein.
5.3 The Predecessor Funds covenant that the Janus Value Fund Shares and
the Janus International Fund Shares to be issued hereunder are not being
acquired for the purpose of making any distribution thereof, other than in
accordance with the terms of this Agreement.
5.4 The Predecessor Funds will assist the Successor Funds in obtaining
such information as the Successor Funds reasonably request concerning the
beneficial ownership of the Predecessor Funds' shares.
5.5 Subject to the provisions of this Agreement, the Successor Funds
and the Predecessor Funds will each take, or cause to be taken, all action, and
do or cause to be done, all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement.
5.6 The Predecessor Funds will provide the Successor Funds with
information reasonably necessary for the preparation of a proxy
statement/prospectus to be included in the Registration Statement, in compliance
with the 1933 Act, the 1934 Act and the 1940 Act, in connection with the meeting
of the shareholders of the Predecessor Funds to consider approval of this
Agreement and the transactions contemplated herein.
5.7 As soon as is reasonably practicable after the Closing, the
Predecessor Funds will make a liquidating distribution to their shareholders
consisting of the Janus Value Fund Shares and the Janus International Fund
Shares, as applicable, received at the Closing.
5.8 The Successor Funds and the Predecessor Funds shall use their
reasonable best efforts to fulfill or obtain the fulfillment of the conditions
precedent to effect the transactions contemplated by this Agreement as promptly
as practicable.
5.9 The Corporation, on behalf of Predecessor Funds, covenants that the
Corporation will, from time to time, as and when reasonably requested by the
Successor Funds, execute and deliver or cause to be executed and delivered all
such assignments and other instruments, and will take or cause to be taken such
further action as the Trust, on behalf of the Successor Funds, may reasonably
deem necessary or desirable in order to vest in and confirm (a) the
Corporation's, on behalf of the Predecessor Funds', title to and possession of
the Janus Value Fund Shares and the Janus International Fund Shares to be
delivered hereunder, and (b) the Trust's, on behalf of the Successor Funds',
title to and possession of all the assets of the Predecessor Funds and otherwise
to carry out the intent and purpose of this Agreement.
5.10 The Successor Funds will use all reasonable efforts to obtain the
approvals and authorizations required by the 1933 Act, the 1940 Act and other
applicable law as may be necessary in order to continue their operations after
the Closing Date.
6. EXPENSES
All of the expenses and costs of the Reorganization and the
transactions contemplated thereby shall be borne by Janus Capital.
7. ENTIRE AGREEMENT
The Trust, on behalf of the Successor Funds, and the Corporation, on
behalf of the Predecessor Funds, agree that this Agreement constitutes the
entire agreement between the parties.
8. TERMINATION
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned by either party by (i) mutual agreement of the parties,
or (ii) by either party if the Closing shall not have occurred on or before
December 31, 2003, unless such date is extended by mutual agreement of the
parties, (iii) by resolution of the Board of Trustees of the Trust or the Board
of Directors of the Corporation, at any time prior to the Closing Date, if
circumstances should develop that, in the opinion of either Board, make
proceeding with the Agreement inadvisable, or (iv) by either party if the other
party shall have materially breached its obligations under this Agreement or
made a material and intentional misrepresentation herein or in connection
herewith. In the event of any such termination, this Agreement shall become void
and there shall be no liability hereunder on the part of any party or their
respective trustees/directors or officers, except for any such material breach
or intentional misrepresentation, as to each of which all remedies at law or in
equity of the party adversely affected shall survive.
9. AMENDMENTS
This agreement may be amended, modified or supplemented in such manner
as may be mutually agreed upon in writing by the parties.
10. 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
respective principal places of business.
11. HEADINGS; COUNTERPARTS; GOVERNING LAW; ASSIGNMENT; LIMITATION OF LIABILITY
11.1 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.
11.2 This Agreement may be executed in any number of counterparts each
of which shall be deemed an original.
11.3 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
11.4 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.
11.5 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 Trust Instrument 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 Trust Instrument of the Trust. The Trust is a series company with two series
and has entered into this Agreement on behalf of the Successor Funds.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date set forth above.
ATTEST JANUS ADVISER
For and on behalf of U.S. Value Fund and
International Equity Fund
Name: /s/ XXXXXXXXX XXXXXXXXXX By: /s/ XXXXXX XXXXXX XXXXX
---------------------------- ---------------------------------------
Asst. Secretary Name: Xxxxxx Xxxxxx Xxxxx
Title: Vice President
ATTEST VONTOBEL FUNDS, INC.
For and on behalf of Vontobel U.S. Value
Fund and Vontobel International Equity Fund
Name: /s/ F. XXXXX XXXXXX, XX. By: /s/ XXXX XXXXX, III
---------------------------- ---------------------------------------
Secretary Name: Xxxx Xxxxx, III
Title: Chairman
