Exhibit 8(cc)
FORM OF AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made as of
this 30th day of April, 2008, by and between Janus Aspen Series, a Delaware
statutory trust (the "Trust"), on behalf of Foreign Stock Portfolio, a series of
the Trust (the "Predecessor Fund"), International Growth Portfolio, a series of
the Trust (the "Successor Fund"), and Janus Capital Management LLC, a Delaware
limited liability company ("JCM").
All references in this Agreement to action taken by the Predecessor Fund or
the Successor Fund shall be deemed to refer to action taken by Trust on behalf
of the respective portfolio series.
This Agreement is intended to be and is adopted as a plan of reorganization
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 corresponding 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 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
transfer all or substantially all of the assets of the Predecessor Fund, as set
forth in paragraph 1.2, to the Successor Fund, and, in exchange therefore, the
Trust shall cause the Successor Fund to (i) deliver to the Predecessor Fund full
and fractional New Shares of the Successor Fund equal in number to the shares of
the Predecessor Fund outstanding as of the close of regular session trading on
the New York Stock Exchange on the Closing Date, as set forth in Article 2 and
(ii) 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 and assets of the Predecessor Fund, whether real
personal, tangible or intangible, 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"). The Predecessor Fund will
endeavor to
discharge all of its known liabilities and obligations prior to 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, known or unknown.
1.3 Immediately after the consummation of the transaction set forth in
paragraph 1.1, the Predecessor Fund will completely liquidate and 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 New Shares
received by the Predecessor Fund 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 due each such shareholder. 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 dissolution of the
Predecessor Fund.
2. CLOSING AND CLOSING DATE
2.1 The Closing Date shall be April 30, 2008, or such date as the parties
may agree to in writing. All acts taking place at the Closing shall be deemed to
take place simultaneously as of immediately after the close of business on the
Closing Date unless otherwise agreed to by the parties. The close of business on
the Closing Date shall be as of 4:00 p.m. New York Time. The Closing shall be
held at the offices of JCM, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 a statutory trust duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
corporate power and authority to conduct its business as presently
conducted;
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(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
Trust's Amended and Restated Trust Instrument ("Trust Instrument") or
By-Laws, 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; and
(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.
3.2 The Trust, on behalf of the Successor Fund, hereby represents and
warrants to the Predecessor Fund as follows:
(i) the Trust is a statutory trust duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
corporate 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
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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
Trust's Trust Instrument or By-Laws, 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 the Successor Fund 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; and
(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.
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 post-effective amendment to its
registration statement on Form N-1A under the Securities Act of 1933, as
amended (the "Securities Act"), and the Investment Company Act of 1940, as
amended (the "1940 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;
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(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 the Predecessor Fund and the Successor Fund
shall have received the written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
substantially to the effect that, for federal income tax purposes:
(a) The acquisition by the Successor Fund of all or substantially
all of the assets of the Predecessor Fund in exchange for the
Successor Fund's assumption of all the liabilities of the Predecessor
Fund and the issuance of the New Shares, followed by the distribution
by the Predecessor Fund of such New Shares to the shareholders of the
Predecessor Fund in exchange for their shares of the Predecessor Fund
and in complete liquidation of the Predecessor Fund, will constitute a
reorganization within the meaning of Section 368(a)(1)(C) of the Code,
and the Predecessor Fund and the Successor Fund will each be "a party
to a reorganization" within the meaning of Section 368(b) of the Code;
(b) No gain or loss will be recognized by the Predecessor Fund
(i) upon the transfer of its assets to the Successor Fund solely in
exchange for the New Shares and the assumption by the Successor Fund
of all the liabilities of the Predecessor Fund or (ii) upon the
distribution of the New Shares to the shareholders of the Predecessor
Fund in complete liquidation of the Predecessor Fund;
(c) No gain or loss will be recognized by the Successor Fund upon
the receipt of the assets of the Predecessor Fund in exchange for the
assumption of all the liabilities and obligations of the Predecessor
Fund and the issuance of the New Shares to the Predecessor Fund.
(d) The basis of the assets of the Predecessor Fund acquired by
the Successor Fund will be the same as the basis of those assets in
the hands of the Predecessor Fund immediately prior to the transfer,
and the holding period of the assets of the Predecessor Fund in the
hands of the Successor Fund will include the period during which those
assets were held by the Predecessor Fund;
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(e) The shareholders of the Predecessor Fund will recognize no
gain or loss upon the exchange of all of their shares of the
Predecessor Fund solely for the New Shares;
(f) The basis of the New Shares to be received by each
shareholder of the Predecessor Fund will be the same in the aggregate
as the aggregate basis of the shares of the Predecessor Fund
surrendered by such shareholder in exchange therefor;
(g) The holding period of the New Shares to be received by each
shareholder of the Predecessor Fund will include the period during
which the shares of the Predecessor Fund surrendered by such
shareholder in exchange therefor were held, provided such shares of
the Predecessor Fund were held as a capital asset on the date of the
exchange;
(h) The Successor Fund will succeed to and take into account the
items of the Predecessor Fund described in Section 381(c) of the Code,
subject to the conditions and limitations specified in Sections 381,
382, 383 and 384 of the Code and the regulations thereunder; and
(i) The taxable year of the Predecessor Fund will not end as a
result of the Reorganization. The part of the taxable year of the
Predecessor Fund before the Reorganization and the part of the taxable
year of the Successor Fund after the Reorganization will constitute a
single taxable year of the Successor Fund.
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 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, 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.
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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 State of Delaware.
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 Trust's Trust Instrument. 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. The Trust is a series company with multiple 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.
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ATTEST JANUS ASPEN SERIES
For and on behalf of Janus Foreign Stock
Portfolio
Name: By:
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Name:
Title:
ATTEST JANUS ASPEN SERIES
For and on behalf of Janus International
Growth Portfolio
Name: By:
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Name:
Title:
THE UNDERSIGNED IS A PARTY TO THIS
AGREEMENT SOLELY FOR THE PURPOSES OF
SECTION 5:
ATTEST JANUS CAPITAL MANAGEMENT LLC
Name: By:
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Name:
Title:
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