Exhibit 4(v)
FORM OF TRANSFER AND ASSUMPTION AGREEMENT
This Transfer and Assumption Agreement ("Agreement"), effective as of April
1, 2002, is entered into by and between Janus Capital Corporation, a Colorado
corporation ("JCC"), and Janus Capital Management LLC, a Delaware limited
liability company ("JCM").
WHEREAS, JCC provides investment advisory services to certain investment
companies, including without limitation those investment companies that are
parties to the investment advisory agreements set forth on Exhibit A;
WHEREAS, JCC provides administrative services to certain investment
companies and other clients, including without limitation those investment
companies and other clients that are parties to the administrative services
agreements set forth on Exhibit B;
WHEREAS, JCC has entered into certain expense limitation and fee waiver
agreements, including without limitation those expense limitation and fee waiver
agreements set forth on Exhibit C;
WHEREAS, JCC has entered into participation agreements with certain
clients, including without limitation those clients are parties to the
participation agreements set forth on Exhibit D;
WHEREAS, effective ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇ transferred its business activities
to JCM, which is a newly-formed, wholly-owned subsidiary of JCC; and
WHEREAS, in connection with the transfer of JCC's business activities to
JCM, JCC and JCM desire to set forth their agreement with respect to the
transfer of all rights of JCC to JCM and the assumption by JCM of JCC's
obligations under such agreements and plans to which JCC is a party or under
which JCC has rights or obligations, as set forth in more detail below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
TRANSFER AND ASSUMPTION OF INVESTMENT ADVISORY
AGREEMENTS
1.1 Subject to the terms and conditions herein stated, JCC hereby
transfers, conveys, delegates and delivers to JCM all of JCC's rights,
interests, duties, obligations, burdens, responsibilities and liabilities, of
every kind and nature whatsoever, whenever created or incurred, under all of the
investment advisory agreements with respect to proprietary, U.S. registered
mutual funds to which JCC is a party, including without limitation those
investment advisory agreements set forth on Exhibit A attached hereto and
incorporated herein by reference (the "Advisory Agreements").
1.2 Subject to the terms and conditions herein stated, JCM hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of JCC's
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obligations, duties, burdens, responsibilities and liabilities under the
Advisory Agreements, (ii) agrees to be bound by all of the provisions of the
Advisory Agreements, to the same extent as if JCM had initially executed and
delivered such agreements, and (iii) agrees to indemnify JCC from and against
any liability, loss, or damage arising under the Advisory Agreements.
ARTICLE II
TRANSFER AND ASSUMPTION OF ADMINISTRATIVE
SERVICES AGREEMENTS
2.1 Subject to the terms and conditions herein stated, JCC hereby
transfers, conveys, delegates and delivers to JCM all of JCC's rights,
interests, duties, obligations, burdens, responsibilities and liabilities, of
every kind and nature whatsoever, whenever created or incurred, under all of the
administrative services agreements with respect to proprietary, U.S. registered
mutual funds to which JCC is a party, including without limitation those
administrative services agreements set forth on Exhibit B attached hereto and
incorporated herein by this reference (the "Administrative Agreements").
2.2 Subject to the terms and conditions herein stated, JCM hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of JCC's obligations, duties, burdens, responsibilities and
liabilities under the Administrative Agreements, (ii) agrees to be bound by all
of the provisions of the Administrative Agreements, to the same extent as if JCM
had initially executed and delivered such agreements, and (iii) agrees to
indemnify JCC from and against any liability, loss or damage arising under the
Administrative Agreements.
ARTICLE III
TRANSFER AND ASSUMPTION OF FEE WAIVER AND
EXPENSE LIMITATION AGREEMENTS
3.1 Subject to the terms and conditions herein stated, JCC hereby
transfers, conveys, delegates, and delivers to JCM all of JCC's rights,
interests, duties, obligations, burdens, responsibilities and liabilities, of
every kind and nature whatsoever, whenever created or incurred, under all of the
fee waiver and expense limitation agreements with respect to proprietary, U.S.
registered mutual funds to which JCC is a party, including without limitation
those fee waiver and expense limitation agreements set forth in Exhibit C
attached hereto and incorporated herein by reference (the "Fee Waiver
Agreements").
3.2 Subject to the terms and conditions herein stated, JCM hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of JCC's obligations, duties, burdens, responsibilities and
liabilities under the Fee Waiver Agreements, (ii) agrees to be bound by all of
the provisions of the Fee Waiver Agreements, to the same extent as if JCM had
initially executed and delivered such agreements, and (iii) agrees to indemnify
JCC from and against any liability, loss, or damage arising under the Fee Waiver
Agreements.
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ARTICLE IV
TRANSFER AND ASSUMPTION OF
PARTICIPATION AGREEMENTS
4.1 Subject to the terms and conditions herein stated, JCC hereby
transfers, conveys, delegates and delivers to JCM all of JCC's rights,
interests, duties, obligations, burdens, responsibilities and liabilities, of
every kind and nature whatsoever, whenever created or incurred, under all of the
participation agreements with respect to proprietary, U.S. registered mutual
funds to which JCC is a party, including without limitation those participation
agreements set forth on Exhibit D attached hereto and incorporated herein by
reference (the "Participation Agreements").
4.2 Subject to the terms and conditions herein stated, JCM hereby
expressly (i) undertakes, assumes and agrees to perform and/or satisfy each and
every one of JCC's obligations, duties, burdens, responsibilities and
liabilities under the Participation Agreements, (ii) agrees to be bound by all
of the provisions of the Participation Agreements, to the same extent as if JCM
had initially executed and delivered such agreements, and (iii) agrees to
indemnify JCC from and against any liability, loss, or damage arising under the
Participation Agreements.
ARTICLE V
GENERAL PROVISIONS
5.1 CONDITIONS TO THE TRANSFER AND ASSUMPTION. The transfer by JCC, and
the assumption by JCM, of the Advisory Agreements, the Administrative Services
Agreements, the Fee Waiver Agreements, and the Participation Agreements are
subject to obtaining such approval of the Board of Trustees of advised funds to
which such agreements relate, as may be required under the Investment Company
Act of 1940 or any other applicable law, rule, regulation or order, and to
obtaining such consents as may be required under the provisions of such
agreements.
5.2 FURTHER ASSURANCES. JCC and JCM each shall take such action and
execute and deliver to the other party all such instruments and documents as
such other party may reasonably request to carry out the intent and purposes of
this Agreement and the transactions contemplated hereby. In particular, JCC and
JCM acknowledge the purpose of this Agreement is to: transfer to JCM all of
JCC's rights, interests, duties, obligations, burdens, responsibilities and
liabilities under the investment advisory agreements to which JCC is a party;
transfer to JCM all of JCC's rights, interests, duties, obligations, burdens,
responsibilities and liabilities under the administrative services agreements to
which JCC is a party; transfer to JCM all of JCC's rights, interests, duties,
obligations, burdens, responsibilities and liabilities under the fee waiver and
expense limitation agreements to which JCC is a party; transfer to JCM all of
JCC's rights, interests, duties, obligations, burdens, responsibilities and
liabilities under the participation agreements to which JCC is a party; and to
transfer to JCM, and for JCM to accept and assume, all of JCC's rights,
interests, duties, obligations, burdens, responsibilities and liabilities as
described in Section 1.2, 2.2, 3.2, and 4.2 herein. If any such agreement, or
right, interest, duty, obligation, burden, responsibility or liability is
inadvertently not included
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specifically in this Agreement, JCC and JCM agree to take the appropriate
actions needed to transfer any such agreement or right, interest, duty,
obligation, burden, responsibility or liability to JCM and for JCM to assume the
same. Nothing in the transactions contemplated by this Agreement shall be deemed
to be an "assignment" for purposes of the Investment Company Act of 1940, as
amended.
5.3 GOVERNING LAW. The interpretation and construction of this Agreement,
and all matters relating thereto, shall be governed by the laws of the State of
Colorado, without regard to its principles of conflicts of law, except as to
matters governed by the Investment Advisers Act of 1940 or the Investment
Company Act of 1940, which shall be governed by said acts and the rules and
regulations promulgated thereunder.
5.4 ASSIGNMENT AND AMENDMENT. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party without the prior written consent
of the other party. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be changed or modified except by a written
amendment hereto signed by all parties affected by such amendment.
5.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original and all of
which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the parties have executed this Agreement as of
the day and year first set forth above.
JANUS CAPITAL CORPORATION JANUS CAPITAL MANAGEMENT LLC
By: ______________________________ By: ________________________________
________________, President ___________________, President
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