Exhibit 1(cc)
JANUS INVESTMENT FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
January 31, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I - NAME AND DEFINITIONS..................................................................................1
Section 1.1 Name and Principal Office..............................................................1
Section 1.2 Definitions............................................................................1
ARTICLE II - PURPOSE OF TRUST.....................................................................................2
ARTICLE III - THE TRUSTEES........................................................................................2
Section 3.1 Number, Designation, Election, Term, etc...............................................2
(a) Trustees...............................................................................2
(b) Number.................................................................................2
(c) Election and Term......................................................................3
(d) Resignation and Retirement.............................................................3
(e) Removal................................................................................3
(f) Vacancies..............................................................................3
(g) Effect of Death, Resignation, etc......................................................3
(h) No Accounting..........................................................................4
Section 3.2 Powers of Trustees.....................................................................4
(a) Investments............................................................................5
(b) Disposition of Assets..................................................................5
(c) Ownership Powers.......................................................................5
(d) Subscription...........................................................................5
(e) Form of Holding........................................................................5
(f) Reorganization, etc....................................................................5
(g) Voting Trusts, etc.....................................................................5
(h) Compromise.............................................................................6
(i) Partnerships, etc......................................................................6
(j) Borrowing and Security.................................................................6
(k) Guarantees, etc........................................................................6
(l) Insurance..............................................................................6
(m) Pensions, etc..........................................................................6
(n) Distribution Plans.....................................................................6
Section 3.3 Certain Contracts......................................................................6
(a) Advisory...............................................................................7
(b) Administration.........................................................................7
(c) Distribution...........................................................................7
(d) Custodian and Depository...............................................................7
(e) Transfer and Dividend Disbursing Agency................................................7
(f) Shareholder Servicing..................................................................7
(g) Accounting.............................................................................7
Section 3.4 Payment of Trust Expenses and Compensation of Trustees.................................8
Section 3.5 Ownership of Assets of the Trust.......................................................8
Section 3.6 Action by Trustees.....................................................................8
ARTICLE IV - SHARES...............................................................................................9
Section 4.1 Description of Shares..................................................................9
Section 4.2 Establishment and Designation of Series...............................................10
(a) Assets Belonging to Series............................................................10
(b) Liabilities Belonging to Series.......................................................11
(c) Dividends.............................................................................11
(d) Liquidation...........................................................................12
(e) Voting................................................................................12
(f) Redemption by Shareholder.............................................................12
(g) Redemption by Trust...................................................................13
(h) Net Asset Value.......................................................................13
(i) Transfer..............................................................................14
(j) Equality..............................................................................14
(k) Fractions.............................................................................14
(l) Conversion Rights.....................................................................14
(m) Class Differences.....................................................................14
Section 4.3 Ownership of Shares...................................................................14
Section 4.4 Investments in the Trust..............................................................15
Section 4.5 No Pre-emptive Rights.................................................................15
Section 4.6 Status of Shares and Limitation of Personal Liability.................................15
Section 4.7 No Appraisal Rights...................................................................15
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS.............................................................15
Section 5.1 Voting Powers.........................................................................15
Section 5.2 Meetings..............................................................................16
Section 5.3 Record Dates..........................................................................16
Section 5.4 Quorum and Required Vote..............................................................17
Section 5.5 Action by Written Consent.............................................................17
Section 5.6 Inspection of Records.................................................................17
Section 5.7 Additional Provisions.................................................................17
Section 5.8 Shareholder Communications............................................................17
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION............................................................18
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice............................18
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or Surety.........................18
Section 6.3 Indemnification of Shareholders.......................................................19
Section 6.4 Indemnification of Trustees, Officers, etc............................................19
Section 6.5 Compromise Payment....................................................................20
Section 6.6 Indemnification Not Exclusive, etc....................................................20
Section 6.7 Liability of Third Persons Dealing with Trustees......................................20
ARTICLE VII - MISCELLANEOUS......................................................................................21
Section 7.1 Duration and Termination of Trust.....................................................21
Section 7.2 Reorganization........................................................................21
Section 7.3 Amendments............................................................................21
Section 7.4 Filing of Copies; References; Headings................................................22
Section 7.5 Applicable Law........................................................................22
Section 7.6 Integration...........................................................................22
Section 7.7 Use of the Name.......................................................................22
JANUS INVESTMENT FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of this
31st day of January, 2002, by the Trustees hereunder.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇, as sole Trustee, adopted the Declaration of Trust
of this Trust on February 11, 1986 ;
WHEREAS, such Declaration of Trust has been previously amended by the
affirmative vote of a Majority of the Trustees at meetings duly called and held
on December 9, 1994 and September 10, 1996;
WHEREAS, pursuant to Section 9.3 of the Declaration of Trust, as amended,
this Amended and Restated Declaration of Trust has been adopted by a Majority of
the Trustees, having been authorized to do so by a vote of Shareholders holding
a majority of all Shares outstanding and entitled to vote, without regard to
Series;
NOW, THEREFORE, the Trustees hereby amend and restate the Declaration of
Trust dated February 11, 1986, as previously amended, in its entirety and
declare that they will hold all cash, securities and other assets which they may
from time to time acquire in any manner as Trustees hereunder IN TRUST to manage
and dispose of the same upon the following terms and conditions for the benefit
of the holders from time to time of shares of beneficial interest in this Trust
and the Series existing from time to time hereunder.
ARTICLE I - NAME AND DEFINITIONS
Section 1.1 NAME AND PRINCIPAL OFFICE. This Trust shall be known as "Janus
Investment Fund" and the Trustees shall conduct the business of the Trust under
that name or any other name or names as they may from time to time determine.
The principal office of the Trust shall be located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other location as the Trustees may from
time to time determine.
Section 1.2 DEFINITIONS. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time;
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(b) "class" refers to any class of Shares of any Series
established and designated under or in accordance with the provisions of Article
IV;
(c) "Commission" shall have the meaning given it in the 1940 Act;
(d) "Declaration of Trust" shall mean this Amended and Restated
Agreement and Declaration of Trust, as further amended or restated from time to
time;
(e) "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(f) "Shareholder" means a record owner of Shares;
(g) "Shares" refers to the transferable units of interest into
which the beneficial interest in the Trust and each Series of the Trust and/or
any class of any Series (as the context may require) shall be divided from time
to time;
(h) "Series" refers to a series of Shares established and
designated under or in accordance with the provisions of Article IV;
(i) "Trust" refers to the Massachusetts business trust established
by this Declaration of Trust, as amended from time to time, inclusive of each
and every Series established hereunder; and
(j) "Trustees" refers to the Trustees of the Trust and of each
Series hereunder named herein or elected in accordance with Article III.
ARTICLE II - PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Series of the Trust one or more
investment programs.
ARTICLE III - THE TRUSTEES
Section 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) TRUSTEES. Immediately following adoption of this Amended and
Restated Declaration of the Trust, the Trustees of the Trust and of each Series
hereunder shall be: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
(b) NUMBER. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase or decrease the number of Trustees to
a number other than the number theretofore determined. No decrease in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of such Trustee's term, but the number
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of Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 3.1.
(c) ELECTION AND TERM. Trustees in addition to those named herein
may become such by election by Shareholders or the Trustees in office pursuant
to Section 3.1(f). Each Trustee, whether named above or hereafter becoming a
Trustee, shall serve as a Trustee of the Trust and of each Series hereunder
during the lifetime of this Trust and until its termination as hereinafter
provided except as such Trustee sooner dies, resigns, retires or is removed.
Subject to Section 16(a) of the 1940 Act, the Trustees may elect their own
successors and may, pursuant to Section 3.1(f) hereof, appoint Trustees to fill
vacancies.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign or retire
as a Trustee, by written instrument signed by such Trustee and delivered to the
other Trustees or to any officer of the Trust, and such resignation or
retirement shall take effect upon such delivery or upon such later date as is
specified in such instrument and shall be effective as to the Trust and each
Series hereunder.
(e) REMOVAL. Any Trustee may be removed with or without cause at
any time: (i) by written instrument, signed by at least two-thirds of the number
of Trustees in office immediately prior to such removal, specifying the date
upon which such removal shall become effective; or (ii) by vote of Shareholders
holding not less than two-thirds of the Shares then outstanding, cast in person
or by proxy at any meeting called for the purpose; or (iii) by a written
declaration signed by Shareholders holding not less than two-thirds of the
Shares then outstanding and filed with the Trust's custodian. Any such removal
shall be effective as to the Trust and each Series hereunder.
(f) VACANCIES. Any vacancy or anticipated vacancy resulting from
any reason, including without limitation the death, resignation, retirement,
removal or incapacity of any of the Trustees, or resulting from an increase in
the number of Trustees by the other Trustees may (subject to the requirements of
the ▇▇▇▇ ▇▇▇) be filled by a majority of the remaining Trustees through the
appointment in writing of such other person as such remaining Trustees in their
discretion shall determine and such appointment shall be effective upon the
written acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this Declaration of
Trust, except that any such appointment in anticipation of a vacancy to occur by
reason of retirement, resignation or increase in number of Trustees to be
effective at a later date shall become effective only at or after the effective
date of said retirement, resignation or increase in number of Trustees. As soon
as any Trustee so appointed shall have accepted such appointment and shall have
agreed in writing to be bound by this Declaration of Trust and the appointment
is effective, the Trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance.
(g) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or any Series hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant to
the terms of this Declaration of Trust.
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(h) NO ACCOUNTING. Except to the extent required by the 1940 Act
or under circumstances which would justify removal for cause, no person ceasing
to be a Trustee as a result of death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such cessation.
Section 3.2 POWERS OF TRUSTEES. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. The Trustees in all instances
shall act as principals, and are and shall be free from the control of the
Shareholders. The Trustees shall have full power and authority to do any and all
acts and to make and execute any and all contracts and instruments that they may
consider necessary or appropriate in connection with the management of the
Trust. The Trustees shall not be bound or limited by present or future laws or
customs with regard to investment by trustees or fiduciaries, but shall have
full authority and absolute power and control over the assets of the Trust and
the business of the Trust to the same extent as if the Trustees were the sole
owners of the assets of the Trust and the business in their own right, including
such authority, power and control to do all acts and things as they, in their
uncontrolled discretion, shall deem proper to accomplish the purposes of this
Trust. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business and affairs of the Trust and may amend and repeal them to the extent
that such By-Laws do not reserve that right to the Shareholders; they may ▇▇▇ or
be sued in the name of the Trust; they may from time to time in accordance with
the provisions of Section 4.1 hereof establish Series, each such Series to
operate as a separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purposes; they may
from time to time in accordance with the provisions of Section 4.1 hereof
establish classes of Shares of any Series or divide the Shares of any Series
into classes; they may as they consider appropriate elect and remove officers
and appoint and terminate agents and consultants and hire and terminate
employees, any one or more of the foregoing of whom may be a Trustee, and may
provide for the compensation of all of the foregoing; they may appoint from
their own number, and terminate, any one or more committees consisting of one or
more Trustees, including without implied limitation an executive committee,
which may, when the Trustees are not in session and subject to the 1940 Act,
exercise some or all of the power and authority of the Trustees as the Trustees
may determine; in accordance with Section 3.3 they may employ one or more
advisers, administrators, depositories and custodians and may authorize any
depository or custodian to employ subcustodians or agents and to deposit all or
any part of such assets in a system or systems for the central handling of
securities and debt instruments, retain transfer, dividend, accounting or
Shareholder servicing agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more distributors, principal
underwriters or otherwise, and set record dates or times for the determination
of Shareholders or various of them with respect to various matters; they may
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants and employees of the Trust
or the Trustees on such terms as they deem appropriate; and in general they may
delegate to any officer of the Trust, to any committee of the Trustees and to
any employee, adviser, administrator, distributor, depository, custodian,
transfer and dividend disbursing agent, or any other agent or consultant of the
Trust such authority, powers, functions and duties as they consider desirable or
4
appropriate for the conduct of the business and affairs of the Trust, including
without implied limitation, the power and authority to act in the name of the
Trust and any Series and of the Trustees, to sign documents and to act as
attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have power and authority
for and on behalf of the Trust and each separate Series established hereunder:
(a) INVESTMENTS. To invest and reinvest cash and other property,
and to hold cash or other property uninvested without in any event being bound
or limited by any present or future law or custom in regard to investments by
trustees;
(b) DISPOSITION OF ASSETS. To sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of the assets of
the Trust;
(c) OWNERSHIP POWERS. To vote or give assent, or exercise any
rights of ownership, with respect to stock or other securities, debt instruments
or property; and to execute and deliver proxies or powers of attorney to such
person or persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities, debt instruments
or property as the Trustees shall deem proper;
(d) SUBSCRIPTION. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) FORM OF HOLDING. To hold any security, debt instrument or
property in a form not indicating any trust, whether in bearer, unregistered or
other negotiable form, or in the name of the Trustees or of the Trust or of any
Series or in the name of a custodian, subcustodian or other depository or a
nominee or nominees or otherwise;
(f) REORGANIZATION, ETC. To consent to or participate in any plan
for the reorganization, consolidation or merger of any corporation or issuer,
any security or debt instrument of which is or was held in the Trust; to consent
to any contract, lease, mortgage, purchase or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect to any
security or debt instrument held in the Trust;
(g) VOTING TRUSTS, ETC. To join with other holders of any
securities or debt instruments in acting through a committee, depositary, voting
trustee or otherwise, and in that connection to deposit any security or debt
instrument with, or transfer any security or debt instrument to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security or debt instrument (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to agree to
pay, and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
5
(h) COMPROMISE. To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any Series or any matter in
controversy, including but not limited to claims for taxes;
(i) PARTNERSHIPS, ETC. To enter into joint ventures, general or
limited partnerships and any other combinations or associations;
(j) BORROWING AND SECURITY. To borrow funds and to mortgage and
pledge the assets of the Trust or any part thereof to secure obligations arising
in connection with such borrowing;
(k) GUARANTEES, ETC. To endorse or guarantee the payment of any
notes or other obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to mortgage
and pledge the Trust property or any part thereof to secure any of or all such
obligations;
(l) INSURANCE. To purchase and pay for entirely out of Trust
property such insurance and/or bonding as they may deem necessary or appropriate
for the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust and payment of distributions and
principal on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, consultants, investment
advisers, managers, administrators, distributors, principal underwriters, or
independent contractors thereof (or any person connected therewith), of the
Trust individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such person in
any such capacity, including any action taken or omitted that may be determined
to constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability; and
(m) PENSIONS, ETC. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
(n) DISTRIBUTION PLANS. To adopt on behalf of the Trust or any
Series with respect to any class thereof a plan of distribution and related
agreements thereto pursuant to the terms of Rule 12b-1 of the 1940 Act and to
make payments from the assets of the Trust or the relevant Series pursuant to
said Rule 12b-1 Plan.
Section 3.3 CERTAIN CONTRACTS. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
6
limited partnerships, other type of organizations, or individuals (a
"Contracting Party"), to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or on behalf
of the Trust and/or any Series or class thereof, and/or the Trustees, and to
provide for the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine appropriate:
(a) ADVISORY. Subject to the general supervision of the Trustees
and in conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series, to manage
such investments and assets, make investment decisions with respect thereto, and
to place purchase and sale orders for portfolio transactions relating to such
investments and assets;
(b) ADMINISTRATION. Subject to the general supervision of the
Trustees and in conformity with any policies of the Trustees with respect to the
operations of the Trust and each Series (including each class thereof), to
supervise all or any part of the operations of the Trust and each Series, and to
provide all or any part of the administrative and clerical personnel, office
space and office equipment and services appropriate for the efficient
administration and operations of the Trust and each Series;
(c) DISTRIBUTION. To distribute the Shares of the Trust and each
Series (including any classes thereof), to the principal underwriter of such
Shares, and/or to act as agent of the Trust and each Series in the sale of
Shares and the acceptance or rejection of orders for the purchase of Shares;
(d) CUSTODIAN AND DEPOSITORY. To act as depository for and to
maintain custody of the property of the Trust and each Series in connection
therewith;
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. To maintain records
of the ownership of outstanding Shares, the issuance and redemption and the
transfer thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) SHAREHOLDER SERVICING. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) ACCOUNTING. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust
7
or a Contracting Party from entering into sub-contractual arrangements relating
to any of the matters referred to in Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is
a shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter or distributor or agent of or for any Contracting Party,
or of or for any parent or affiliate of any Contracting Party or that the
Contracting Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Series, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations, trusts,
associations, partnerships, limited partnerships or other organizations, or have
other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any Series
and/or the Trustees or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same or create any liability or
accountability to the Trust, any Series or its Shareholders.
Section 3.4 PAYMENT OF TRUST EXPENSES AND COMPENSATION OF TRUSTEES. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Series, or partly out of principal and partly out of
income, and to charge or allocate the same to, between or among such one or more
of the Series and/or one or more classes of Shares thereof that may be
established and designated pursuant to Article IV, as the Trustees deem fair,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, any Series and/or any class of Shares thereof, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Trust for their services
as Trustees and may fix the amount of such compensation.
Section 3.5 OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets
of the Trust and of each Series shall at all times be considered as vested in
the Trustees.
Section 3.6 ACTION BY TRUSTEES. Except as otherwise provided by the 1940
Act or other applicable law, this Declaration of Trust or the By-Laws, any
action to be taken by the Trustees on behalf of or with respect to the Trust or
any Series or class thereof may be taken by a majority of the Trustees present
at a meeting of Trustees (a quorum, consisting of at least one-half of the
Trustees then in office, being present), within or without Massachusetts,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the
8
same time, and participation by such means shall constitute presence in person
at a meeting, or by written consents of a majority of the Trustees then in
office (or such larger or different number as may be required by the 1940 Act or
other applicable law).
ARTICLE IV - SHARES
Section 4.1 DESCRIPTION OF SHARES. The beneficial interest in the Trust
shall be divided into Shares, all with $.01 par value, but the Trustees shall
have the authority from time to time to issue Shares in one or more Series as
they deem necessary or desirable (each of which Series of Shares shall represent
the beneficial interest in a separate and distinct sub-trust of the Trust),
including without limitation each Series specifically established and designated
in Section 4.2. For all purposes under this Declaration of Trust or otherwise,
including, without implied limitation, (i) with respect to the rights of
creditors and (ii) for purposes of interpreting the relevant rights of each
Series and the Shareholders of each Series, each Series established hereunder
shall be deemed to be a separate trust. The Trustees shall have exclusive power
without the requirement of Shareholder approval to establish and designate such
separate and distinct Series, and to fix and determine the relative rights and
preferences as between the shares of the separate Series as to right of
redemption and the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and conditions under which the
several Series shall have separate voting rights or no voting rights.
In addition, the Trustees shall have exclusive power, without the
requirement of Shareholder approval, to issue classes of Shares of any Series or
divide the Shares of any Series into classes, each class having such different
dividend, liquidation, voting and other rights as the Trustees may determine,
and may establish and designate the specific classes of Shares of each Series.
The fact that a Series shall have initially been established and designated
without any specific establishment or designation of classes (i.e., that all
Shares of such Series are initially of a single class), or that a Series shall
have more than one established and designated class, shall not limit the
authority of the Trustees to establish and designate separate classes, or one or
more additional classes, of said Series without approval of the holders of the
initial class thereof, or previously established and designated class or classes
thereof.
The number of authorized Shares and the number of Shares of each Series or
class thereof that may be issued is unlimited, and the Trustees may issue Shares
of any Series or class thereof for such consideration and on such terms as they
may determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares when
so issued on the terms determined by the Trustees shall be fully paid and
non-assessable (but may be subject to mandatory contribution back to the Trust
as provided in subsection (g) of Section 4.2). The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series or class thereof into one or more Series or classes thereof that may
be established and designated from time to time. The Trustees may hold as
treasury Shares, reissue for such consideration and on such terms as they may
determine, or cancel, at their discretion from time to time, any Shares of any
Series or class thereof reacquired by the Trust.
9
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in Section
5.3.
The establishment and designation of any Series or of any class of Shares
of any Series in addition to those established and designated in Section 4.2
shall be effective (i) upon the execution by a majority of the then Trustees of
an instrument setting forth such establishment and designation of the relative
rights and preferences of the Shares of such Series or class, (ii) upon the
execution of an instrument in writing by an officer of the Trust pursuant to the
vote of a majority of the Trustees, or (iii) as otherwise provided in either
such instrument. At any time that there are no Shares outstanding of any
particular Series or class previously established and designated, the Trustees
may by an instrument executed by a majority of their number (or by an instrument
executed by an officer of the Trust pursuant to the vote of a majority of the
Trustees) abolish that Series or class and the establishment and designation
thereof. Each instrument establishing and designating any Series shall have the
status of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of Shares
of any Series (including any classes thereof) of the Trust to the same extent as
if such person were not a Trustee, officer or other agent of the Trust; and the
Trust may issue and sell or cause to be issued and sold and may purchase Shares
of any Series (including any classes thereof) from any such person or any such
organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such Series
(including any classes thereof) generally.
Section 4.2 ESTABLISHMENT AND DESIGNATION OF SERIES. Without limiting the
authority of the Trustees set forth in Section 4.1 to establish and designate
any further Series, the Trustees have established and designated twenty six (26)
Series: Janus Fund, Janus Fund 2, Janus Balanced Fund, Janus Core Equity Fund,
Janus Enterprise Fund, Janus Federal Tax-Exempt Fund, Janus Flexible Income
Fund, Janus Global Life Sciences Fund, Janus Global Technology Fund, Janus
Global Value Fund, Janus Government Money Market Fund, Janus Growth and Income
Fund, Janus High-Yield Fund, Janus Institutional Cash Reserves Fund, Janus
Mercury Fund, Janus Money Market Fund, Janus Olympus Fund, Janus Orion Fund,
Janus Overseas Fund, Janus Short-Term Bond Fund, Janus Special Situations Fund,
Janus Strategic Value Fund, Janus Tax-Exempt Money Market Fund, Janus Twenty
Fund, Janus Venture Fund, and Janus Worldwide Fund. The Shares of such Series
and classes thereof and any Shares of any further Series or classes thereof that
may from time to time be established and designated by the Trustees shall have
the following relative rights and preferences (unless the Trustees otherwise
determine with respect to some further Series or classes thereof at the time of
establishing and designating the same):
(a) ASSETS BELONGING TO SERIES. All consideration received by the
Trust for the issue or sale of Shares of a particular Series or any classes
thereof, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation of such assets, and
10
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the benefit of
the holders of Shares of that Series or class thereof and shall irrevocably
belong to that Series (and be allocable to any classes thereof) for all
purposes, and shall be so recorded upon the books of account of the Trust. Such
consideration, assets, income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any General Items (as
hereinafter defined) allocated to that Series as provided in the following
sentence, are herein referred to as "assets belonging to" that Series (and
allocable to any classes thereof). In the event that there are any assets,
income, earnings, profits, and proceeds thereof, funds, or payments which are
not readily identifiable as belonging to any particular Series (collectively
"General Items"), the Trustees shall allocate such General Items to and among
any one or more of the Series established and designated from time to time in
such manner and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular Series shall
belong to that Series (and be allocable to any classes thereof). Each such
allocation by the Trustees shall be conclusive and binding upon the holders of
all Shares of all Series (including any classes thereof) for all purposes.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and all expenses, costs, charges and reserves belonging to that Series,
and any general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as belonging to any particular Series shall
be allocated and charged by the Trustees to and among any one or more of the
Series established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable. In
addition, the liabilities in respect of a particular class of Shares of a
particular Series and all expenses, costs, charges and reserves belonging to
that class of Shares, and any general liabilities, expenses, costs, charges or
reserves of that particular Series which are not readily identifiable as
belonging to any particular class of Shares of that Series shall be allocated
and charged by the Trustees to and among any one or more of the classes of
Shares of that Series established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves allocated and
so charged to a Series or class thereof are herein referred to as "liabilities
belonging to" that Series or class thereof. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders, creditors and any other persons dealing with the
Trust or any Series (including any classes thereof) for all purposes. Any
creditor of any Series may look only to the assets of that Series to satisfy
such creditor's debt.
(c) DIVIDENDS. Dividends and distributions on Shares of a
particular Series or any class thereof may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise pursuant to a standing
resolution or resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that Series or class, from
such of the income and capital gains, accrued or realized, from the assets
belonging to that Series, or in the case of a class, belonging to that Series
and allocable to that class, as the Trustees may determine, after providing for
actual and accrued liabilities belonging to that Series or class. All dividends
and distributions on Shares of a particular Series or class thereof shall be
11
distributed pro rata to the holders of Shares of that Series or class in
proportion to the number of Shares of that Series or class held by such holders
at the date and time of record established for the payment of such dividends or
distributions, except that in connection with any dividend or distribution
program or procedure the Trustees may determine that no dividend or distribution
shall be payable on Shares as to which the Shareholder's purchase order and/or
payment have not been received by the time or times established by the Trustees
under such program or procedure. Such dividends and distributions may be made in
cash or Shares of that Series or class or a combination thereof as determined by
the Trustees or pursuant to any program that the Trustees may have in effect at
the time for the election by each Shareholder of the mode of the making of such
dividend or distribution to that Shareholder. Any such dividend or distribution
paid in Shares will be paid at the net asset value thereof as determined in
accordance with subsection (h) of Section 4.2.
The Trustees shall have full discretion to determine which items shall be
treated as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(d) LIQUIDATION. In the event of the liquidation or dissolution of
the Trust, the holders of Shares of each Series or any class thereof that has
been established and designated shall be entitled to receive, when and as
declared by the Trustees, the excess of the assets belonging to that Series, or
in the case of a class, belonging to that Series and allocable to that class,
over the liabilities belonging to that Series or class. The assets so
distributable to the holders of Shares of any particular Series or class thereof
shall be distributed among such holders in proportion to the relative net asset
value of Shares of that Series or class thereof held by them and recorded on the
books of the Trust. The liquidation of any particular Series or class thereof
may be authorized at any time by vote of a majority of the Trustees then in
office. Prior to giving effect to any such authorization, the Trust shall notify
the Shareholders of the relevant Series or class.
(e) VOTING. On each matter submitted to a vote of the
Shareholders, each holder of a whole Share shall be entitled to one vote for
each dollar of net asset value standing in such Shareholder's name on the books
of the Trust irrespective of the Series thereof or class thereof and all Shares
of all Series and classes thereof shall vote together as a single class;
provided, however, that as to any matter (i) with respect to which a separate
vote of one or more Series or classes thereof is required by the 1940 Act or the
provisions of the writing establishing and designating the Series or class, such
requirements as to a separate vote by such Series or class thereof shall apply
in lieu of all Shares of all Series and classes thereof voting together; and
(ii) as to any matter which affects the interests of one or more particular
Series or classes thereof, only the holders of Shares of the one or more
affected Series or classes shall be entitled to vote, and each such Series or
class shall vote as a separate class.
(f) REDEMPTION BY SHAREHOLDER. Each holder of Shares of a
particular Series or any class thereof shall have the right at such times as may
be permitted by the Trust to require the Trust to redeem all or any part of such
holder's Shares of that Series or class thereof at a redemption price equal to
the net asset value per Share of that Series or class thereof next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are properly
12
tendered for redemption, subject to any contingent deferred sales charge or
redemption charge in effect at the time of redemption. Payment of the redemption
price shall be in cash; provided, however, that if the Trustees determine, which
determination shall be conclusive, that conditions exist which make payment
wholly in cash unwise or undesirable, the Trust may, subject to the requirements
of the 1940 Act, make payment wholly or partly in securities or other assets
belonging to the Series of which the Shares being redeemed are part at the value
of such securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Series or class thereof to require the Trust to redeem Shares of that Series
during any period or at any time when and to the extent permissible under the
1940 Act.
(g) REDEMPTION BY TRUST. Each Share of each Series or class
thereof that has been established and designated is subject to redemption by the
Trust at the redemption price which would be applicable if such Share was then
being redeemed by the Shareholder pursuant to subsection (f) of this Section
4.2: (i) at any time, if the Trustees determine in their sole discretion and by
majority vote that failure to so redeem may have materially adverse consequences
to the Trust or any Series or to the holders of the Shares of the Trust or any
Series thereof or class thereof, or (ii) upon such other conditions as may from
time to time be determined by the Trustees and set forth in the then current
Prospectus. Upon such redemption the holders of the Shares so redeemed shall
have no further right with respect thereto other than to receive payment of such
redemption price.
(h) NET ASSET VALUE. The net asset value per Share of any Series
shall be (i) in the case of a Series whose Shares are not divided into classes,
the quotient obtained by dividing the value of the net assets of that Series
(being the value of the assets belonging to that Series less the liabilities
belonging to that Series) by the total number of Shares of that Series
outstanding, and (ii) in the case of a class of Shares of a Series whose Shares
are divided into classes, the quotient obtained by dividing the value of the net
assets of that Series allocable to such class (being the value of the assets
belonging to that Series allocable to such class less the liabilities belonging
to such class) by the total number of Shares of such class outstanding; all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from time
to time.
The Trustees may determine to maintain the net asset value per Share of any
Series at a designated constant dollar amount and in connection therewith may
adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Series as dividends payable in
additional Shares of that Series at the designated constant dollar amount and
for the handling of any losses attributable to that Series. Such procedures may
provide that in the event of any loss each Shareholder shall be deemed to have
contributed to the capital of the Trust attributable to that Series such
Shareholder's pro rata portion of the total number of Shares required to be
cancelled in order to permit the net asset value per Share of that Series to be
maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have agreed, by making
an investment in any
13
Series with respect to which the Trustees shall have adopted any such procedure,
to make the contribution referred to in the preceding sentence in the event of
any such loss.
(i) TRANSFER. All Shares of each particular Series or class
thereof shall be transferable, but transfers of Shares of a particular Series or
class thereof will be recorded on the Share transfer records of the Trust
applicable to that Series or class only at such times as Shareholders shall have
the right to require the Trust to redeem Shares of that Series or class and at
such other times as may be permitted by the Trustees.
(j) EQUALITY. Except as provided herein or in the instrument
designating and establishing any class of Shares or any Series, all Shares of
each particular Series or class thereof shall represent an equal proportionate
interest in the assets belonging to that Series, or in the case of a class,
belonging to that Series and allocable to that class, subject to the liabilities
belonging to that Series or class, and each Share of any particular Series or
class shall be equal to each other Share of that Series or class; but the
provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 4.2 that may exist with respect to
dividends and distributions on Shares of the same Series or class. The Trustees
may from time to time divide or combine the Shares of any particular Series or
class into a greater or lesser number of Shares of that Series or class without
thereby changing the proportionate beneficial interest in the assets belonging
to that Series or class or in any way affecting the rights of Shares of any
other Series or class.
(k) FRACTIONS. Any fractional Share of any Series or class, if any
such fractional Share is outstanding, shall carry proportionately all the rights
and obligations of a whole Share of that Series or class, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(l) CONVERSION RIGHTS. Subject to compliance with the requirements
of the 1940 Act, the Trustees shall have the authority to provide that holders
of Shares of any Series or class thereof shall have the right to convert said
Shares into Shares of one or more other Series or class thereof in accordance
with such requirements and procedures as may be established by the Trustees.
(m) CLASS DIFFERENCES. The relative rights and preferences of the
classes of any Series may differ in such other respects as the Trustees may
determine to be appropriate in their sole discretion, provided that such
differences are set forth in the instrument establishing and designating such
classes and executed by a majority of the Trustees (or by an instrument executed
by an officer of the Trust pursuant to a vote of a majority of the Trustees).
Section 4.3 OWNERSHIP OF SHARES. The ownership of Shares shall be recorded
on the books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the Shares of each Series and each
class thereof that has been established and designated. No certificates
certifying the ownership of Shares need be issued except as the Trustees may
otherwise determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any
14
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders and as to the number of Shares of each Series and class thereof
held from time to time by each such Shareholder.
Section 4.4 INVESTMENTS IN THE TRUST. The Trustees may accept or reject
investments in the Trust and each Series from such persons and on such terms and
for such consideration, not inconsistent with the provisions of the 1940 Act, as
they from time to time authorize or determine. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase of Shares that conform to such authorized terms
and to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
Section 4.5 NO PRE-EMPTIVE RIGHTS. Shareholders shall have no pre-emptive
or other right to subscribe to any additional Shares or other securities issued
by the Trust or any Series.
Section 4.6 STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the continuance of the
Trust shall not operate to terminate the Trust or any Series thereof nor entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall not entitle
the Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
Section 4.7 NO APPRAISAL RIGHTS. Shareholders shall have no right to
demand payment for their shares or to any other rights of dissenting
shareholders in the event the Trust participates in any transaction which would
give rise to appraisal or dissenters' rights by a shareholder of a corporation
organized under Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, or otherwise.
ARTICLE V - SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 VOTING POWERS. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Section 3.1, (ii)
with respect to any contract with a Contracting Party as provided in Section 3.3
as to which Shareholder approval is required by the 1940 Act, [(iii) with
respect to any termination or reorganization of the Trust to the extent and as
provided in Sections 7.1 and 7.2,] (iv) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Section 7.3, (v) to the
same extent as the stockholders of a Massachusetts business corporation as to
whether or not a court action, proceeding or claim
15
should or should not be brought or maintained derivatively or as a class action
on behalf of the Trust or any Series thereof or the Shareholders (provided,
however, that a Shareholder of a particular Series shall not be entitled to a
derivative or class action on behalf of any other Series (or Shareholder of any
other Series) of the Trust) and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Commission (or any
successor agency) or any state, or as the Trustees may consider necessary or
desirable. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. Proxies may be given by or on behalf
of a shareholder orally or in writing or pursuant to any computerized,
telephonic, or mechanical data gathering process. A proxy with respect to Shares
held in the name of two or more persons shall be valid if executed or otherwise
given by or on behalf of any one of them unless at or prior to exercise of the
proxy the Trust receives a specific written notice to the contrary from any one
of them. A proxy purporting to be executed or otherwise given by or on behalf of
a Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration of Trust or the
By-Laws to be taken by Shareholders.
Section 5.2 MEETINGS. No annual or regular meeting of Shareholders is
required. Special meetings of Shareholders may be called by the Trustees from
time to time for the purpose of taking action upon any matter requiring the vote
or authority of the Shareholders as herein provided or upon any other matter
deemed by the Trustees to be necessary or desirable. Written notice of any
meeting of Shareholders shall be given or caused to be given by the Trustees by
mailing such notice at least seven days before such meeting, postage prepaid,
stating the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the purpose
of voting upon removal of any Trustee of the Trust when requested to do so in
writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by Shareholders
holding at least 10% of the Shares then outstanding requesting a meeting be
called for any other purpose requiring action by the Shareholders as provided
herein or in the By-Laws, then Shareholders holding at least 10% of the Shares
then outstanding may call and give notice of such meeting, and thereupon the
meeting shall be held in the manner provided for herein in case of call thereof
by the Trustees.
Section 5.3 RECORD DATES. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than 120 days prior to the date of any meeting of Shareholders or other action
as the date and time of record for the determination of Shareholders entitled to
vote at such meeting or any adjournment thereof or to be treated as Shareholders
of record for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof or to be treated as a Shareholder of record
for purposes of such other action,
16
even though such Shareholder has since that date and time disposed of such
Shareholder's Shares, and no Shareholder becoming such after that date and time
shall be so entitled to vote at such meeting or any adjournment thereof or to be
treated as a Shareholder of record for purposes of such other action.
Section 5.4 QUORUM AND REQUIRED VOTE. Except as otherwise provided by the
1940 Act or other applicable law, thirty percent of the Shares entitled to vote
shall be a quorum for the transaction of business at a Shareholders' meeting,
but any lesser number shall be sufficient for adjournments. Any meeting of
shareholders, whether or not a quorum is present, may be adjourned for any
lawful purpose. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting without the
necessity of further notice. A majority of the Shares voted at a meeting of
which a quorum is present shall decide any questions and a plurality shall elect
a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
Section 5.5 ACTION BY WRITTEN CONSENT. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if Shareholders who hold at least thirty percent (30%) of the
Shares entitled to vote on the matter (or such larger proportion thereof as
shall be required by the 1940 Act or by any express provision of this
Declaration of Trust or the By-Laws) consent to the action in writing and such
written consents are filed with the records of the meetings of Shareholders.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 5.6 INSPECTION OF RECORDS. The records of the Trust shall be open
to inspection by Shareholders for any lawful purpose reasonably related to a
Shareholder's interest as a Shareholder. The Trustees may from time to time
establish reasonable standards with respect to Shareholder inspection of Trust
records, including standards governing what information and documents are to be
furnished, at what time and location and at whose expense.
Section 5.7 ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 SHAREHOLDER COMMUNICATIONS. Whenever ten or more Shareholders
of record who have been such for at least six months preceding the date of
application, and who hold in the aggregate either Shares having a net asset
value of at least $25,000 or at least 1% of the outstanding Shares, whichever is
less, shall apply to the Trustees in writing, stating that they wish to
communicate with other Shareholders with a view to obtaining signatures to a
request for a Shareholder meeting and accompanied by a form of communication and
request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as recorded on
the books of the Trust or Series, as applicable; or (2) inform such applicants
as to the approximate number of Shareholders of record, and the approximate cost
of mailing to them the proposed communication and form of request.
17
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with any order entered by
the Commission and the requirements of the 1940 Act and the Securities Exchange
Act of 1934.
ARTICLE VI - LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Series with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Series nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Series shall
be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust, any Series or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been executed or
done only by or for the Trust (or the Series) or the Trustees and not
personally. Nothing in this Declaration of Trust shall protect any Trustee or
officer against any liability to the Trust or the Shareholders to which such
Trustee or officer would otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust, or the particular Series in question,
as the case may be, but the omission thereof shall not operate to bind any
Trustees or Trustee or officers or officer or Shareholders or Shareholder
individually.
Section 6.2 TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee shall be liable for such Trustee's
own willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the office of Trustee, and for nothing
else, and shall not be liable for errors of judgment or mistakes of fact or law.
Subject to the foregoing, (a) the Trustees shall not be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent, employee,
consultant, adviser, administrator, distributor or principal underwriter,
custodian or transfer, dividend disbursing, Shareholder
18
servicing or accounting agent of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee; (b) the Trustees may take advice
of counsel or other experts with respect to the meaning and operation of this
Declaration of Trust and their duties as Trustees, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice; and (c) in discharging their duties, the Trustees, when
acting in good faith, shall be entitled to rely upon the books of account of the
Trust and upon written reports made to the Trustees by any officer appointed by
them, any independent public accountant, and (with respect to the subject matter
of the contract involved) any officer, partner or responsible employee of a
Contracting Party appointed by the Trustees pursuant to Section 3.3. The
Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties.
Section 6.3 INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder (or
former Shareholder) of any Series of the Trust shall be charged or held to be
personally liable for any obligation or liability of the Trust solely by reason
of being or having been a Shareholder and not because of such Shareholder's acts
or omissions or for some other reason, said Series (upon proper and timely
request by the Shareholder) shall assume the defense against such charge and
satisfy any judgment thereon, and the Shareholder or former Shareholder (or such
Shareholder's heirs, executors, administrators or other legal representatives or
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets of said Series estate to be held
harmless from and indemnified against all loss and expense arising from such
liability.
Section 6.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust shall
indemnify (from the assets of the Series in question) each of its Trustees and
officers (including persons who serve at the Trust's request as directors,
officers or trustees of another organization in which the Trust has any interest
as a shareholder, creditor or otherwise (hereinafter referred to as a "Covered
Person")) against all liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such person may be or
may have been threatened, while in office or thereafter, by reason of being or
having been such a Trustee or officer, director or trustee, except with respect
to any matter as to which it has been determined that such Covered Person had
acted with willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's office
(such conduct referred to hereafter as "Disabling Conduct"). A determination
that the Covered Person is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom the proceeding
was brought that the person to be indemnified did not engage in Disabling
Conduct, (ii) dismissal of a court action or an administrative proceeding
against a Covered Person for insufficiency of evidence of Disabling Conduct, or
(iii) a reasonable determination, based upon a review of the facts, that the
indemnitee did not engage in Disabling Conduct by (a) a vote of a majority of a
quorum of Trustees who are neither "interested persons" of the Trust as defined
in section 2(a)(19) of the 1940 Act nor parties to the proceeding, or (b) an
independent legal counsel in a written opinion. Expenses, including
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accountants' and counsel fees so incurred by any such Covered Person (but
excluding amounts paid in satisfaction of judgments, in compromise or as fines
or penalties), may be paid from time to time by the Series in question in
advance of the final disposition of any such action, suit or proceeding,
provided that the Covered Person shall have undertaken to repay the amounts so
paid to the Series in question if it is ultimately determined that
indemnification of such expenses is not authorized under this Article VI and (i)
the Covered Person shall have provided security for such undertaking, (ii) the
Trust shall be insured against losses arising by reason of any lawful advances,
or (iii) a majority of a quorum of the Trustees who are neither "interested
persons" of the Trust nor parties to the proceeding, or an independent legal
counsel in a written opinion, shall have determined, based on a review of
readily available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the Covered Person ultimately will be found entitled to
indemnification.
Section 6.5 COMPROMISE PAYMENT. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees or (b) by an independent legal counsel in a written opinion. Approval
by the Trustees pursuant to clause (a) or by independent legal counsel pursuant
to clause (b) shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with any of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction to have been liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office.
Section 6.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI, "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this Article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of any such person.
Section 6.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
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ARTICLE VII - MISCELLANEOUS
Section 7.1 DURATION AND TERMINATION OF TRUST. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Series or class thereof shall operate to
terminate the Trust. The Trust may be terminated at any time by a majority of
the Trustees then in office subject to a favorable vote of a majority of the
outstanding voting securities, as defined in the 1940 Act.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall, in accordance with such procedures
as the Trustees consider appropriate, reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders in conformity with the
provisions of subsection (d) of Section 4.2.
Section 7.2 REORGANIZATION. The Trust, or any one or more Series, may,
either as the successor, survivor, or non-survivor, (1) consolidate or merge
with one or more other trusts, sub-trusts, partnerships, limited liability
companies, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
consolidated or merged trust, sub-trust, partnership, limited liability company,
association or corporation under the laws of which any one of the constituent
entities is organized with the Trust to be the survivor or non-survivor of such
consolidation or merger, or (2) transfer a substantial portion of its assets to
one or more other trusts, sub-trusts, partnerships, limited liability companies,
associations or corporations organized under the laws of the Commonwealth of
Massachusetts or any other state of the United States, or have one or more such
trusts, sub-trusts, partnerships, limited liability companies, associations or
corporations transfer a substantial portion of its assets to it, any such
consolidation, merger or transfer to be upon such terms and conditions as are
specified in an agreement and plan of reorganization authorized and approved by
the Trustees and entered into by the Trust, or one or more Series as the case
may be, in connection therewith. Any such consolidation, merger or transfer may
be authorized at any time by vote of a majority of the Trustees then in office.
Prior to giving effect to any such authorization, the Trust shall notify the
Shareholders of the relevant Series or class.
Section 7.3 AMENDMENTS. All rights granted to the Shareholders under this
Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time, so long as such
amendment does not materially adversely affect the rights of any Shareholder
with respect to which such amendment is or purports to be applicable and so long
as such amendment is not in contravention of applicable law, including the 1940
Act, by an instrument in writing signed by a majority of the then Trustees (or
by an officer of the Trust pursuant to the vote of a majority of such Trustees).
Any amendment to this Declaration of Trust that materially adversely affects the
rights of
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Shareholders may be adopted at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to a vote
of a majority of such Trustees) when authorized to do so by the vote in
accordance with subsection (e) of Section 4.2 of Shareholders as specified in
Section 5.4 hereof. Subject to the foregoing, any such amendment shall be
effective as of any prior or future time as provided in the instrument
containing the terms of such amendment or, if there is no provision therein with
respect to effectiveness, upon the execution of such instrument and of a
certificate (which may be a part of such instrument) executed by a Trustee or
officer of the Trust to the effect that such amendment has been duly adopted.
Section 7.4 FILING OF COPIES; REFERENCES; HEADINGS. The original or a copy
of this instrument and of each amendment hereto shall be kept at the office of
the Trust where it may be inspected by any Shareholder. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein," "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Section 7.5 APPLICABLE LAW. This Declaration of Trust is made in the
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. The
Trust shall be of the type referred to in Section 1 of Chapter 182 of the
Massachusetts General Laws and of the type commonly called a Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
Section 7.6 INTEGRATION. This Declaration of Trust constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 7.7 USE OF THE NAME "JANUS". Janus Capital Corporation ("Janus")
has consented to the use by the Trust and by each Series and each class thereof
to the identifying word "Janus" in the name of the Trust and of each Series and
class thereof. Such consent is conditioned upon the Trust's employment of Janus
as investment adviser to the Trust and to each Series and each class thereof. As
between Janus and the Trust, Janus shall control the use of such name insofar as
such name contains the identifying word "Janus." Janus may from time to time use
the identifying word "Janus" in other connections and for other purposes,
including without limitation in the names of other investment companies,
corporations or businesses that it may manage, advise, sponsor or own or in
which it may have a financial interest. Janus may require the Trust or any
Series or class thereof to cease using the identifying word "Janus" in the
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name of the Trust or any Series or any class thereof if the Trust or any Series
or class thereof ceases to employ Janus or a subsidiary or affiliate thereof as
investment adviser.
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IN WITNESS WHEREOF, each of the undersigned hereunto has set his hand and
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