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SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [x]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[x] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to [ ] 240.14a-11(c) or [ ] 240.14a-2
Janus Aspen Series
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement if other than Registrant)
Payment of Filing Fee (Check the appropriate box):
[x] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
1) Title of Each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
-------------------------------
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Date
Dear [insert client name]:
I am writing to let you know that we have received Board of Trustees
approval for the proposed reorganization of the Retirement Shares class of Janus
Aspen Series. I have enclosed for your review a copy of the Proxy Statement. In
early May, we will begin mailing the full proxy package, including proxy voting
cards and a Q&A to assist shareholders in making an informed vote. Assuming
shareholder approval in July, we expect the reorganization to be completed by
early August of this year.
As you may remember, the proposed reorganization will transfer the
assets of the Retirement Shares to a new trust called Janus Adviser Series. Each
Fund in the Janus Adviser Series will carry the assets and performance record of
the Retirement Shares. Each fund you now work with will re-open as a Janus
Adviser Fund Series Fund with the same investment objective and track record as
the current Janus Aspen Series, Retirement Shares funds. Your retirement plan
would become a shareholder of the new Funds, and the value of the investment
would not change as a result of the reorganization.
The Trustees of Janus Aspen Series have determined that the
reorganization is in the best interest of the shareholders and recommend that
shareholders approve the reorganization. Among other things, unlike the current
Janus Aspen Series funds, the new Funds, in response to requests from our
retirement plan clients, would accept both tax-qualified and taxable monies. In
addition, Janus Capital Corporation has agreed to limit the new Funds' expenses
through July 31, 2003 if the reorganization is approved.
The shareholder of record, which is generally the plan or the plan
trustee, is the one authorized by state law and the Janus Aspen Series charter
to vote the proxy. Some plans and their trustees may require that the voting
rights be passed through to participants. We request that you advise us promptly
if you intend to pass the voting through to participants so that we may provide
an appropriate number of Proxy Statements and voting cards.
Please let us know at your earliest convenience of any issues you have
regarding proxy voting procedures by calling Joe Baggett, Director Institutional
Client Relations, at (800) 525-1068. Of course, please feel free to contact me
or Russ Shipman with any questions. Thank you for your attention to this most
important matter.
Sincerely,
Lars Soderberg
[Title]
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Date
Dear [insert client name]:
Enclosed is a Proxy Statement seeking shareholder approval of a
proposed reorganization of the Retirement Shares class of Janus Aspen Series.
Also enclosed is a proxy voting card and a Q&A to assist trustees, plan sponsors
and plan participants in making an informed vote. Assuming shareholder approval
at the July meeting, we expect the new Series to become effective in early
August of this year.
The proposed reorganization will transfer the assets of the Retirement
Shares of each fund of Janus Aspen Series to a new trust called Janus Adviser
Series. Each fund will re-open as a Janus Adviser Fund with the same investment
objective and track record as the current Janus Aspen Series, Retirement Shares
fund. In addition, the Adviser Series will carry over the assets and performance
record of the Retirement Shares. Your retirement plan will become a shareholder
of the new Funds, and the value of the investment would not change as a result
of the reorganization. Janus Capital Corporation would bear the costs of the
reorganization.
The Trustees of Janus Aspen Series have determined that the
reorganization is in the best interest of the shareholders and recommend that
shareholders approve the reorganization. Among other things, unlike the current
Janus Aspen Series funds, the new Funds, in response to requests from our
retirement plan clients, would accept both tax-qualified and taxable monies. In
addition, Janus Capital Corporation has agreed to limit the new Funds' expenses
through July 31, 2003 if the reorganization is approved.
The shareholder of record, which is generally the plan or the plan
trustee, is the one authorized by state law and the Janus Aspen Series charter
to vote the proxy. Plan documents or ERISA, however, may require that the voting
rights be passed through to participants. We request that you advise us promptly
if you intend to pass the voting through to participants so that we may provide
additional Proxy Statements and voting cards.
Please let us know at your earliest convenience of any issues you have
regarding proxy voting procedures by calling Joe Baggett, Director Institutional
Client Relations, at (800) 525-1068. Of course, please feel free to contact me
or Russ Shipman with any questions. Thank you for your attention to this most
important matter.
Sincerely,
Lars Soderberg
[Title]
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IMPORTANT
Proxy Materials
Please cast your vote now.
[insert picture of Tom Bailey]
Janus Aspen Series, Retirement Shares
Dear Shareholder:
I am writing to let you know that a special meeting of shareholders of Janus
Aspen Series, Retirement Shares, will be held July 20, 2000. The purpose of the
meeting is to vote on an important proposal regarding the Janus Aspen Series.
As a shareholder, you have the opportunity to voice your opinion on this matter.
We encourage you to do so, as your vote is very important, regardless of how
large or small your holdings may be.
This package contains information regarding this proposal and the materials to
use when voting. To assist you in making an informed vote, we've provided a
detailed overview of the proposal.
The Trustees of Janus Aspen Series are responsible for protecting your interests
as a shareholder. They have determined that the proposal is indeed in the best
interest of shareholders and recommend that you vote for it.
PLEASE READ THE ENCLOSED MATERIALS. TO CAST YOUR VOTE, SIMPLY COMPLETE THE
ENCLOSED PROXY CARD. WE ASK THAT YOU RETURN YOUR CARD PROMPTLY. Be sure to sign
the card before mailing it in the postage-paid envelope.
We have retained Shareholder Communications Corporation, a professional proxy
solicitation firm, to assist with the solicitation of proxies. If you don't vote
your shares, you may receive a phone call from them.
If you have any questions before you vote, please call ____________. They will
be happy to help you get your vote in quickly. Thank you for your vote, and for
taking the time to voice your opinion on this matter.
Sincerely,
[insert scanned signature of Tom Bailey]
Tom Bailey
CEO & Chairman
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JANUS ASPEN SERIES
RETIREMENT SHARES
1-800-29JANUS
100 Fillmore Street
Denver, Colorado 80206-4928
janus.com
Growth Portfolio Balanced Portfolio
Aggressive Growth Portfolio Equity Income Portfolio
Capital Appreciation Portfolio Growth and Income Portfolio
International Growth Portfolio Flexible Income Portfolio
Worldwide Growth Portfolio Money Market Portfolio
IMPORTANT INFORMATION TO HELP YOU UNDERSTAND AND VOTE ON THE PROPOSAL.
PLEASE READ THE ENCLOSED PROXY STATEMENT. THE FOLLOWING IS A BRIEF
OVERVIEW OF THE PROPOSAL WE ARE ASKING SHAREHOLDERS TO VOTE ON. YOUR
VOTE IS IMPORTANT. PLEASE SIGN, DATE, AND RETURN THE ENCLOSED PROXY
CARD IN THE ACCOMPANYING POSTAGE-PAID ENVELOPE.
WHAT IS THE PROPOSAL I AM BEING ASKED TO VOTE ON?
We are asking you to vote on a proposal to reorganize Janus Aspen
Series so that the Retirement Shares class of each Portfolio will be
"spun off" to form Janus Adviser Series. Janus Adviser Series is very
much like Janus Aspen Series. In particular, each Janus Aspen Series
Portfolio voting on the proposal has a corresponding Fund in Janus
Adviser Series with the same investment objectives and strategies. As a
result of the reorganization, any shares that you own of the Retirement
Shares class of any Portfolio will become shares of the corresponding
Janus Adviser Series Fund. For example, if on the date of the
reorganization you own 100 shares of Janus Aspen Growth Portfolio
Retirement Shares, then immediately after the reorganization you would
instead own 100 shares of Janus Adviser Growth Fund.
WHY IS JANUS SPINNING OFF THE RETIREMENT SHARES?
We are proposing to spin off the Retirement Share Class to eliminate
the current requirement that shares be sold only to certain qualified
retirement plans. Without this restriction, we can respond to requests
of plan sponsors for a single set of Funds that can be made available
to plan sponsors and participants for more than just qualified
retirement plan assets. In addition, the spin off will allow generally
for greater asset growth. As assets grow larger, a Fund can benefit
from economies of scale. In the long run, this can mean lower Fund
expenses for you.
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WILL THE NEW FUNDS BE DIFFERENT FROM MY CURRENT INVESTMENT CHOICES?
No, as mentioned earlier, each Portfolio of Janus Aspen Series involved
in the proposed reorganization will have a corresponding Fund in Janus
Adviser Series with exactly the same investment objectives and
investment strategies. For example, the Fund corresponding to Janus
Aspen Growth Portfolio is Janus Adviser Growth Fund. The Portfolio and
the Fund have the same investment objectives and strategies. You should
be aware, of course, that Janus Adviser Series will be separate from
Janus Aspen Series, so the new Funds' investment performance will not
be the same as that of the Janus Aspen Series Portfolios - it could be
better or worse.
HOW WILL THE REORGANIZATION AFFECT FEES AND EXPENSES?
Janus Capital Corporation, the investment adviser of both Janus Aspen
Series and Janus Adviser Series, has agreed to limit expenses so that
they will not increase before July 31, 2003. Specifically, Janus
Capital will limit the expenses of each of the new Funds to the expense
ratio of the corresponding Janus Aspen Series Portfolio as of May 1,
2000. These limitations will stay in place until at least July 31,
2003.
In addition, Janus Capital Corporation will pay all the fees associated
with the reorganization, including the cost of providing these
materials to you. Neither Janus Aspen Series nor Janus Adviser Series -
nor you as a shareholder - will bear these costs.
HAVE THE TRUSTEES OF JANUS ASPEN SERIES APPROVED THE PROPOSAL?
Yes. The Trustees have unanimously approved the proposal and recommend
that you vote to approve it.
HOW MANY VOTES MAY I CAST?
For each Portfolio of Janus Aspen Series, you are entitled to one vote
for each share you own of the Retirement Shares class of that Portfolio
on the record date, which was [APRIL 11], 2000.
HOW DO I VOTE MY SHARES?
You can vote your shares by completing and signing the enclosed proxy
card or cards and mailing them in the enclosed postage-paid envelope.
WHO DO I CONTACT IF I HAVE ADDITIONAL QUESTIONS?
Call Janus at 1-800-525-0020.
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JANUS ASPEN SERIES
RETIREMENT SHARES
1-800-525-0020
100 Fillmore Street
Denver, Colorado 80206-4928
janus.com
Growth Portfolio Balanced Portfolio
Aggressive Growth Portfolio Equity Income Portfolio
Capital Appreciation Portfolio Growth and Income Portfolio
International Growth Portfolio Flexible Income Portfolio
Worldwide Growth Portfolio Money Market Portfolio
Notice Of Special Meeting Of Retirement Shares Class Shareholders
To Be Held [JULY 20], 2000
A Special Meeting of Shareholders of the Retirement Shares class (the
"Retirement Shares") of the Growth Portfolio, Aggressive Growth Portfolio,
Capital Appreciation Portfolio, International Growth Portfolio, Worldwide Growth
Portfolio, Balanced Portfolio, Equity Income Portfolio, Growth and Income
Portfolio, Flexible Income Portfolio, and Money Market Portfolio of Janus Aspen
Series will be held at 3773 Cherry Creek North Drive, Denver, Colorado 80209 on
[JULY 20], 2000 at 10:00 a.m. Mountain Time, or at such adjourned time as may be
necessary to vote (the "Meeting"), for the following purposes:
(1) To approve a reorganization that would transfer the assets relating to
the Retirement Shares class of each Janus Aspen Series Portfolio to a
corresponding Fund of Janus Adviser Series; and
(2) To transact such other business as may properly come before the
Meeting.
Shareholders of record of the Retirement Shares of each Portfolio at the close
of business on [APRIL 11], 2000 are entitled to vote at the Meeting. Each share
of a Portfolio entitles its record owner to one vote, with proportionate voting
for fractional shares.
By direction of the Trustees,
/s/ Kelley A. Howes
Kelley A. Howes
Secretary
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, WE URGE YOU TO SIGN, DATE, AND
RETURN THE ENCLOSED PROXY CARD IN THE ACCOMPANYING POSTAGE-PAID ENVELOPE. TO
AVOID UNNECESSARY DELAY, WE ASK YOUR COOPERATION IN MAILING THE PROXY PROMPTLY.
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PROXY STATEMENT
JANUS ASPEN SERIES
1-800-525-0020
100 Fillmore Street
Denver, Colorado 80206-4928
janus.com
RETIREMENT SHARES
Growth Portfolio Balanced Portfolio
Aggressive Growth Portfolio Equity Income Portfolio
Capital Appreciation Portfolio Growth and Income Portfolio
International Growth Portfolio Flexible Income Portfolio
Worldwide Growth Portfolio Money Market Portfolio
SPECIAL MEETING OF SHAREHOLDERS
OF THE RETIREMENT SHARES CLASS
TO BE HELD [JULY 20], 2000
The Trustees solicit your proxy in connection with a proposed
reorganization of the Janus Aspen Series. If shareholders approve, the proposed
reorganization will "spin-off" the Retirement Shares classes of the Janus Aspen
Series to form a new group of funds, the Janus Adviser Series.
The Janus Aspen Series will consider the proposed reorganization at a
Special Meeting of Shareholders of the Retirement Shares class of the Growth
Portfolio, Aggressive Growth Portfolio, Capital Appreciation Portfolio,
International Growth Portfolio, Worldwide Growth Portfolio, Balanced Portfolio,
Equity Income Portfolio, Growth and Income Portfolio, Flexible Income Portfolio,
and Money Market Portfolio. The Janus Aspen Series will hold the Special Meeting
at 3773 Cherry Creek North Drive, Denver, Colorado 80209 on [JULY 20], 2000 at
10:00 a.m. Mountain Time, and at any adjournments. This proxy statement and the
enclosed form of proxy and accompanying materials are being mailed to
shareholders on or about May __, 2000.
VOTING AND PROXY INFORMATION
If you were the owner of record of Retirement Shares in any Janus Aspen
Series Portfolio as of [APRIL 11], 2000 (the record date), you are entitled to
vote those shares at the special meeting either in person or by proxy. Each
share has one vote, and any fractional shares have a corresponding fractional
vote. The number of Retirement Shares outstanding in each Portfolio as of the
record date and therefore entitled to vote at the special meeting are as
follows:
o Growth Portfolio - ________ shares
o Aggressive Growth Portfolio - ________ shares
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o Capital Appreciation Portfolio - ________ shares
o International Growth Portfolio - ________ shares
o Worldwide Growth Portfolio - ________ shares
o Balanced Portfolio - __________ shares
o Equity Income Portfolio - ________ shares
o Growth and Income Portfolio - ________ shares
o Flexible Income Portfolio - ________ shares
o Money Market Portfolio - ________ shares
If you are not the owner of record, but instead are a beneficial owner
as a participant in a qualified plan, your plan may request that you instruct it
how to vote the shares you beneficially own. Your plan sponsor will provide you
with additional information.
If you return to us a properly-executed proxy card by [JULY 20], 2000,
we will vote your shares as you instruct on the proxy card. If you properly
execute your proxy card and return it to us, but do not indicate how you wish us
to vote your shares, we will vote your shares `FOR' the proposal.
If you return a properly-executed proxy card but later wish to revoke
it, you may do so any time before it is voted by doing any of the following:
o delivering written notice to the Secretary of Janus Aspen Series that
you are revoking your proxy;
o submitting a properly-executed proxy bearing a later date; or
o attending the special meeting and voting in person.
We are soliciting these proxies by U.S. mail, and may also solicit them
in person, by telephone, by facsimile, or by any other electronic means. Janus
Capital, the investment adviser for Janus Aspen Series and for Janus Adviser
Series, is paying for the costs of this proposed reorganization, and is paying
for the expense of the preparation, printing, and mailing of the enclosed proxy
card, this proxy statement, and other expenses relating to the shareholder
meeting. The administrators of certain qualified plans will pay for some of the
costs associated with providing these materials to their participants, depending
upon the terms of the agreement between Janus Aspen Series and the plan. Janus
Capital has engaged Shareholder Communications Corporation to assist in proxy
solicitation at a cost to Janus Capital of approximately $10,000. Employees of
Janus Capital or Janus Service Corporation, the transfer agent for Janus Aspen
Series, may make additional solicitations to obtain the necessary representation
at the meeting, but will receive no additional compensation for doing so. We may
count proxies authorized by telephone or electronically-transmitted instruments
if we follow procedures designed to verify that you have authorized us to accept
your proxy in that manner.
YOU MAY OBTAIN COPIES OF JANUS ASPEN SERIES' MOST RECENT ANNUAL AND SEMI-ANNUAL
REPORTS ON REQUEST AND WITHOUT CHARGE. PLEASE CALL 1-800-525-0020, OR WRITE US
AT THE ADDRESS LISTED AT THE BEGINNING OF THIS PROXY STATEMENT.
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PROPOSAL
APPROVAL OF A REORGANIZATION THAT WOULD TRANSFER THE ASSETS
RELATING TO THE RETIREMENT SHARES CLASS OF EACH JANUS ASPEN SERIES PORTFOLIO
TO A CORRESPONDING FUND OF JANUS ADVISER SERIES
At a meeting of the Trustees of Janus Aspen Series held on April 3,
2000, the Trustees approved an agreement and plan of reorganization that would
transfer the assets relating to the Retirement Shares from each Portfolio (a
"Current Portfolio") of Janus Aspen Series (the "Current Trust") to a
corresponding Fund (a "New Fund") of Janus Adviser Series (the "New Trust"). For
each of the ten Current Portfolios with Retirement Shares, there is a
corresponding New Fund. Each New Fund is substantially identical to its
corresponding Current Portfolio. As a result of the reorganization, your
investment in a Current Portfolio would change to an investment in the
corresponding New Fund. For example, if you hold an investment in the current
Janus Aspen Series Growth Portfolio on the date of the reorganization, that
investment would change to an investment in the new Janus Adviser Series Growth
Fund. The value of your investment would be the same immediately after the
reorganization as immediately before. Janus Capital Corporation ("Janus
Capital") will bear all costs associated with the reorganization.
For the reasons set forth below under "Reasons for the Reorganization,"
the Trustees of Janus Aspen Series, including the Trustees who are not
"interested persons" as that term is defined in the federal securities laws,
have unanimously determined that the reorganization is in the best interests of
the Janus Aspen Series shareholders and that the interests of those shareholders
will not be diluted as a result of the reorganization.
We now submit to shareholders of Retirement Shares a proposal to
approve the reorganization. If shareholders approve the proposal, the Trustees
and officers of Janus Aspen Series will execute and implement the reorganization
agreement. If approved, we expect the reorganization to take effect on [AUGUST
1], 2000, although that date may be adjusted in accordance with the agreement.
SUMMARY OF THE REORGANIZATION AGREEMENT
We summarize below the important terms of the Agreement and Plan of
Reorganization (referred to as the "Agreement"). This summary is qualified in
its entirety by reference to the Agreement itself, which is set forth in
Appendix A to this Proxy Statement.
The New Funds. The New Trust's Trustees have adopted for each New Fund
investment objectives, policies, procedures, investment advisory and other
agreements, and distribution and administrative services plans and fees
substantially similar to those of the corresponding Current Portfolio. In
addition, provided that shareholders have approved the reorganization, the
Trustees of the Current Trust, as sole shareholder of the New Funds, will (1)
approve the investment advisory agreement between each New Fund and Janus
Capital substantially similar to the
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current advisory agreements between the Current Portfolios and Janus Capital,
and (2) elect the current Trustees of the Current Trust to also serve as
Trustees of the New Trust.
Designating Retirement Shares as New Series. On the Closing Date, the
Current Trust will designate the Retirement Class of each Current Portfolio as a
separate newly-designated series rather than just a separate class (each called
a "Transferring Retirement Fund" in the Agreement). As part of this
redesignation, each Current Portfolio will allocate to the corresponding
newly-designated series of the Current Trust a portion of its assets having a
value equal to the aggregate net asset value of all issued and outstanding
Retirement Shares of that Current Portfolio. The allocated assets from each
Current Portfolio are called the "Retirement Assets." Where appropriate, the
Retirement Assets will consist of as nearly a pro-rata portion as is reasonably
practical of each security or other asset held by the Current Portfolio. If,
however, the amount of assets to be allocated make it impractical to apply such
a pro rata split to most of the securities held by the Current Portfolio, the
Retirement Assets will be selected in a manner equitable to all shareholders of
the Current Fund. If the Retirement Assets consist of all or primarily cash,
Janus Capital will bear the cost of the brokerage and other expenses incurred by
the New Fund in investing the cash.
Transfer of Assets and Issuance of Shares. As of the close of the New
York Stock Exchange on the Closing Date (referred to as the "Valuation Time" in
the Agreement) each newly-designated series of the Current Trust will transfer,
convey and assign the Retirement Assets to the corresponding New Fund. In
exchange, each New Fund will deliver to the corresponding newly-designated
series a number of full and fractional New Fund shares equal to the number of
full and fractional shares of the newly-designated series outstanding as of the
Valuation Time. Each Current Portfolio will endeavor to discharge all of its
known liabilities and obligations attributable to its Retirement Shares prior to
the Closing Date to the extent reasonably practicable.
Distribution of New Fund Shares. After the Closing, each
newly-designated series will distribute to shareholders of record, determined as
of the Valuation Time, shares of the corresponding New Fund. The distribution
will be accomplished by the transfer agent of each New Fund crediting to the
account of each shareholder of record of the corresponding newly-designated
series the same number of shares of the New Fund as the shareholder held in the
newly-designated series as of the Valuation Time. All issued and outstanding
shares of each such newly-designated series will be canceled. For example, if
you held 100 Retirement Shares of the Janus Aspen Series Growth Portfolio
immediately prior to the Valuation Time, those shares would first be
reclassified as 100 shares of a corresponding newly-designated series, and then
those shares would be canceled and you would receive 100 shares of the
corresponding New Fund. All of these transactions would occur as of the Closing
Date. The value of your investment immediately after the reorganization will be
the same as it was immediately prior to the reorganization.
Closing Date. The Closing Date is [AUGUST 1], 2000, or such other date
as the parties may mutually agree. If on the Closing Date there are certain
trading restrictions or disruptions, then the Closing Date will be postponed.
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Other Provisions. The obligations of Janus Aspen Series and Janus
Adviser Series under the Agreement are subject to various conditions as stated
in the Agreement. Notwithstanding the approval of the reorganization by
shareholders, the Trustees of Janus Aspen Series or Janus Adviser Series may
terminate or amend the Agreement under certain circumstances specified in the
Agreement. If shareholders of some but not all of the Janus Aspen Series
Portfolios approve the reorganization, the Trustees of Janus Aspen Series or
Janus Adviser Series may terminate the Agreement or may determine to proceed
with reorganization with respect to the Portfolios for which the shareholders
approved the reorganization. At any time prior to the Closing Date, the Trustees
of Janus Aspen Series or Janus Adviser Series may waive any condition if, in
their judgment, the waiver will not have a material adverse effect on the
benefits intended under the Agreement to shareholders.
COMPARISON OF THE CURRENT JANUS ASPEN SERIES TO THE NEW JANUS ADVISER SERIES
The New Trust is not materially different from the Current Trust. The
New Trust currently has ten Funds, each of which has the same investment
objectives, policies and procedures as the corresponding Current Portfolio.
Since the New Trust and the Old Trust are both Delaware business trusts
organized under substantially similar trust instruments, the rights of the
shareholders of the New Trust under Delaware law and the governing documents are
the same as those of the Current Trust. Both trusts are authorized to issue an
unlimited number of shares of beneficial interest, and each trust instrument
permits the Trustees to create one or more additional funds and classes of
shares. The two trusts will have different fiscal years - the Current Trust's
fiscal year ends December 31, and the New Trust's fiscal year will end July 31 -
but that change will not have a material effect on shareholders.
Each New Fund will operate separately from its corresponding Current
Portfolio. That means that a New Fund's investment performance will not be
identical to the performance of the corresponding Current Portfolio. Investment
performance could be better or worse. While the person or persons currently
serving as portfolio manager for each Current Portfolio will serve as the
initial portfolio manager for the corresponding New Fund, Janus Capital reserves
the right to add or change portfolio managers of the New Funds in its
discretion, as it does with all mutual funds that it manages.
Janus Capital will serve as investment adviser to the New Funds under
agreements that are substantially similar to the current agreements for the
Current Portfolios. The new agreements, like the current agreements, provide
that Janus Capital will furnish continuous advice and recommendations concerning
the Funds' investments, provide office space for the Funds, and pay the
salaries, fees and expenses of all Fund officers and of those Trustees who are
affiliated with Janus Capital. The New Trust has the same address as the Current
Trust: 100 Fillmore Street, Denver, Colorado 80206-4928. The telephone number
for the New Trust is 1-800-525-0020.
The advisory fees in the agreements for the New Funds are identical to
the fees included the current agreements for the Janus Aspen Series Portfolios.
The fees are calculated daily and paid monthly, based on average daily net
assets.
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Current Trust Expense Limitations - Four Current Portfolios. Janus
Capital has agreed to limit the overall expenses of four Current Portfolios to a
set percentage of the average daily net assets of the Portfolio. The Portfolios
and the applicable percentages are as follows: Equity Income (1.25%); Growth and
Income (1.25%); Flexible Income (1.00%); and Money Market (.50%). These
limitations include the Portfolio's normal operating expenses in any fiscal
year, including the advisory fee, but exclude the distribution fee, the
participant administration fee, brokerage commissions, interest, taxes, and
extraordinary expenses. Janus Capital has agreed to these limitations through at
least June 30, 2000. Janus Capital may offer to extend these limitations past
that date, but it is not obligated to do so.
New Trust Expense Limitations - All New Funds. Janus Capital has agreed
to overall expense limitations for all of the New Funds, which we explain below.
o Each New Fund's total fees and expenses will be no higher than the
total fees and expenses of the corresponding Current Portfolio as of
May 1, 2000. Specifically, Janus Capital has agreed to limit the
overall expenses of each New Fund to the effective overall expense
ratio of the corresponding Current Portfolio on May 1, 2000. Janus
Capital has agreed to limit the fees and expenses of the New Funds in
this manner through at least July 31, 2003, approximately three years
after the scheduled effective date of the reorganization. Janus Capital
may offer to extend these limitations past that date, but it is not
obligated to do so.
o As noted above, expense limitations are currently in place for four
Current Portfolios (Equity Income, Growth and Income, Flexible Income,
and Money Market). Those limitations will still be in place on May 1,
2000, so the expense limitations for the New Funds will include the
benefit of the current limitations. The limitations for the New Funds,
like the limitations for the Current Portfolios, include the Fund's
normal operating expenses in any fiscal year, including the advisory
fee, but exclude the distribution fee, the administration fee,
brokerage commissions, interest, taxes, and extraordinary expenses.
o The expense limitations for the New Funds will reflect the recent
reduction of the advisory fee for eight Current Portfolios to 0.65%.
Those eight Current Portfolios are Growth, Aggressive Growth, Capital
Appreciation, International Growth, Worldwide Growth, Balanced, Equity
Income and Growth and Income.
Names - The name of each New Fund will correspond to the name of each
Current Portfolio (i.e., Growth Portfolio will become Janus Adviser Growth
Fund), except that Worldwide Growth Portfolio will become Janus Adviser
Worldwide Fund and International Growth Portfolio will become Janus Adviser
International Fund.
REASONS FOR THE REORGANIZATION
The Trustees of Janus Aspen Series, including the Trustees who are not
"interested persons" as that term is defined in the federal securities laws,
have unanimously determined that the reorganization is in the best interests of
the Janus Aspen Series shareholders and that the
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interests of those shareholders will not be diluted as a result of the
reorganization. Therefore, the Trustees unanimously recommend that shareholders
approve the reorganization. We summarize below the key factors considered by the
Trustees.
o Janus Aspen Series is currently limited by federal tax law to selling
shares to insurance companies (to serve as the underlying investment
option for variable life insurance and variable annuity contracts) and
to certain qualified retirement plans. The reorganization, by spinning
off the Retirement Shares into the New Funds, creates funds that are
no longer subject to this restriction on permissible investors. This
restriction has become a problem for Aspen Series and its investors.
Janus Capital and many of the sponsors of the qualified plans
currently investing in Retirement Shares believe that plan sponsors
and participants want to invest more than qualified retirement plan
assets in Retirement Shares. For example, plan sponsors have expressed
a desire to use Retirement Shares in their non-qualified plans so that
they have the same options in both their qualified and non-qualified
plans. Janus Capital and the plan sponsors would like to make
Retirement Shares available in those circumstances. In addition, Janus
Capital would like to be able to expand the pool of potential
investors generally.
o Janus Capital will pay the costs of the reorganization, including the
costs of seeking shareholder approval.
o Janus Capital informed the Trustees that it believes that in the long
run, the New Funds will have greater opportunities for asset growth
than if the Retirement Shares remain part of the Current Trust. A
larger pool of assets should result in operational economies of scale
and investment management efficiencies, which can help to minimize
expenses. A fund with a larger pool of assets is also more attractive
to institutional investors such as plan sponsors, which often view
asset size as one of the criteria when selecting investment options.
To address the short-term decrease in assets due to the
reorganization, Janus Capital has agreed to put expense limitations in
place for the New Funds for three years (through July 31, 2003).
o The Trustees determined that the reorganization would not adversely
affect the other classes of the Current Trust that are not being spun
off in the reorganization. In addition, the reorganization may benefit
the other classes. Presently, the Current Trust must monitor the
qualified plan status of its Retirement Shares class investors. If a
plan were to lose its qualified status, that could adversely affect
variable contract owners investing in the other classes of the Current
Trust. The reorganization would drastically reduce the number of
qualified plans investing in the Current Trust, however, and therefore
would reduce this potential problem for investors.
FEDERAL INCOME TAX CONSEQUENCES
Janus Aspen Series has been advised by counsel that the reorganization
will not have any material adverse federal income tax effects for any qualified
plan investing in the Retirement Shares. (The reorganization will create a
taxable event for Janus Capital with respect to Retirement Shares that it
holds.)
10
<PAGE>
We describe below that specific tax treatment of the reorganization:
Distributions. Immediately prior to the reorganization, each Current
Portfolio will make two distributions - first, all ordinary income it earned
from the date of the last ordinary income distribution through the date of the
reorganization and, second, all net capital gains earned from January 1, 2000
through the date of the reorganization. These distributions, like any annual or
quarterly distribution of ordinary income and net capital gains, will have no
material federal income tax effect on qualified plan shareholders because they
are tax-exempt.
Tax Effect on the Current Portfolios and New Funds. Under Section
852(b)(6) of the Internal Revenue Code of 1986, as amended, the conversion of
Retirement Shares into New Fund shares will not create a taxable event for the
Current Portfolios. The assets transferred to each New Fund will carry over
their basis from the Current Portfolio.
Tax Effect on Shareholders. Although the transaction will create a
capital gain for owners of Retirement Shares when their current Retirement
Shares are converted into New Fund shares, this will have no material adverse
federal income tax effect on qualified plan shareholders because they are
tax-exempt. The basis for the New Fund shares received by a holder of Retirement
Shares will be the fair market value of those New Fund shares on the date of the
reorganization, and the shareholders' holding period for those New Fund shares
will begin on the following day. As noted above counsel has advised Janus Aspen
Series that the reorganization will not have any material adverse federal income
tax effect on qualified plans investing in Retirement Shares.
PERFORMANCE INFORMATION
Janus Capital expects that performance information for each New Fund
will include the performance information for the Retirement Shares class of the
corresponding Current Portfolio prior to the reorganization date. Janus Capital
expects that the financial statements of Adviser Series will not carry over any
historical information from the financial statements of Aspen Series.
OTHER EFFECTS OF SHAREHOLDER APPROVAL
The 1940 Act generally requires that shareholders of a mutual fund
elect the fund's trustees, approve the fund's investment advisory agreements and
ratify the trustees' selection of the independent accountant for the fund. Those
requirements apply to new mutual funds, including Adviser Series.
If shareholders approve the proposed reorganization, they will also be
authorizing election of trustees for Adviser Series, approval of the investment
advisory agreements for the New Funds, and ratifying the selection of
PricewaterhouseCoopers LLP as the independent accountant for the New Funds.
Technically, these elections, approvals and ratifications will be accomplished
by a vote of the Current Portfolios, as sole shareholders of the New Funds prior
to
11
<PAGE>
the effective date of the reorganization. As noted above, there will be no
substantive change in these areas from the Current Portfolios to the New Funds
as a result of the proposed reorganization. In particular:
o the trustees for Adviser Series are the same as the trustees for Aspen
Series;
o the terms of the investment advisory agreements between the New Funds
and Janus Capital will be substantially similar to the current
agreements between Janus Capital and the Current Portfolios; and
o the independent accountant for the New Funds is the same as the
independent accountant for the Current Portfolios
(PricewaterhouseCoopers LLP).
REQUIRED VOTE
The Trust will adopt the proposal if a majority of the shares of each
Current Portfolio's Retirement Shares vote to approve it. For each Portfolio, a
majority is either
o more than 50% of all of the Retirement Shares entitled to vote; or, if
this test is not met, then
o more than 67% of the Retirement Shares entitled to vote and present at
the special meeting (either attending in person or represented by
proxy), if at least 50% of all of the shares entitled to vote are
present (again, either in person or by proxy).
Under the first method of calculating a majority, abstentions and
broker non-votes (i.e., when a broker or nominee does not have authority to
vote) will have the practical effect of voting against the proposal. Under the
second method, if at least 50% of the shares entitled to vote are present,
abstentions and broker non-votes will likewise have the practical effect of
voting against the proposal. We will, however, count any abstentions and broker
non-votes as "present" in determining whether at least 50% of the shares
entitled to vote are present at the meeting.
If some but not all Current Portfolios approve the proposal, we may or
may not go forward with the reorganization. If we do go forward with the
reorganization, it will cover only those Current Portfolios that have approved
the proposal.
THE TRUSTEES OF JANUS ASPEN SERIES UNANIMOUSLY RECOMMEND THAT YOU VOTE
"FOR" THE PROPOSED REORGANIZATION.
OTHER MATTERS TO COME BEFORE THE MEETING
We do not expect that any other business will be considered at the
Special Meeting. If, however, other matters are properly presented, the persons
named as proxies will vote as they think best.
12
<PAGE>
IT IS IMPORTANT THAT YOU RETURN YOUR PROXY PROMPTLY TO AVOID
UNNECESSARY DELAY AND COST. WE THEREFORE URGE YOU TO COMPLETE, SIGN, DATE, AND
RETURN THE PROXY CARD AS SOON AS POSSIBLE IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
13
<PAGE>
OTHER INFORMATION
INVESTMENT ADVISER AND DISTRIBUTOR
Janus Capital Corporation and Janus Distributors, Inc., 100 Fillmore
Street, Denver, Colorado 80206, serve as the investment adviser and distributor
respectively of Janus Aspen Series.
PRINCIPAL SHAREHOLDERS
The officers and Trustees of the Janus Aspen Series Portfolios cannot
own shares of the Portfolios except by purchasing them through a qualified plan.
As a result, the officers and Trustees as a group own less than 1% of the
outstanding shares of each Current Portfolio. As of [APRIL 11], 2000, all of the
outstanding Retirement Shares of the Current Portfolios were owned by qualified
plans and by Janus Capital, which provided seed capital for the Current
Portfolios. The percentage ownership of each qualified plan owning more than 5%
of the Shares of any Portfolio as of [APRIL 11], 2000 is as follows:
<TABLE>
<CAPTION>
Percentage of
Retirement
Name and Address of Plan Current Portfolio(s) Held by Plan Shares Held
- ------------------------ --------------------------------- -------------
<S> <C> <C>
</TABLE>
None of the qualified plans owned 10% or more of the shares of Janus
Aspen Series as a whole.
In connection with the reorganization, the Janus Adviser Series Funds
will issue nominal shares to the Current Portfolios. Other than those shares,
the Funds will not issue any shares prior to the shares issued on the effective
date of the reorganization.
14
<PAGE>
INDEPENDENT ACCOUNTANT
We expect that PricewaterhouseCoopers LLP, the independent accountant
for Janus Aspen Series, will attend the Special Meeting, will have the
opportunity to make a statement if desired, and will be available to respond to
appropriate questions.
SUBMISSION OF SHAREHOLDER PROPOSALS
Janus Aspen Series does not generally hold annual shareholders'
meetings. If you wish to submit a proposal for consideration for inclusion in a
proxy statement for a future special meeting of shareholders, send the written
proposal to the Secretary of Janus Aspen Series at the address at the beginning
of this proxy statement. We will consider a submitted proposal for inclusion in
the next proxy statement that is mailed to shareholders at least four months
after we receive the proposal.
FINANCIAL STATEMENTS
Audited financial statements for Janus Aspen Series appear in its Annual Report,
which was recently sent to shareholders, and that Report is incorporated by
reference into this proxy statement (which means that the Report is made legally
part of this proxy statement). If you would like a copy of that Annual Report,
please call 1-800-525-0020, or write us at the address listed at the beginning
of this proxy statement.
Janus Adviser Series does not have audited financial statements, because it has
not yet commenced operations.
EXPENSES. Each New Fund of the Adviser Series would incur additional expenses as
newly organized Funds. However, Janus Capital has agreed to limit the expenses
of each New Fund to the level of the corresponding Current Portfolio as of May
1, 2000, for approximately three years after the effective date of the
reorganization.
CAPITALIZATION. The following tables show the capitalization of each Current
Portfolio as of 12/31/99. The capitalization information for Retirement Shares
also constitutes pro forma capitalization information for the New Funds,
assuming that the reorganization occurred on 12/31/99. The actual initial
capitalization of the New Funds will equal the capitalization of the Retirement
Shares on the effective date of the reorganization.
15
<PAGE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
GROWTH SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
GROWTH FUND)
<S> <C> <C> <C>
Net Assets $3,001,983 $2,942,649 $59,334
Shares Outstanding 89,222 87,457 1,765
Net Asset Value Per Share $ 33.65 $ 33.63
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
AGGRESSIVE GROWTH SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
AGGRESSIVE GROWTH FUND)
<S> <C> <C> <C>
Net Assets $3,367,547 $3,319,619 $47,928
Shares Outstanding 56,422 55,608 814
Net Asset Value Per Share $ 59.70 $ 58.91
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
CAPITAL APPRECIATION SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER CAPITAL
APPRECIATION FUND)
<S> <C> <C> <C>
Net Assets $650,140 $626,611 $23,529
Shares Outstanding 19,607 18,894 713
Net Asset Value Per Share $ 33.17 $ 33.00
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
INTERNATIONAL GROWTH SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
International Fund)
<S> <C> <C> <C>
Net Assets $827,378 $810,392 $16,986
Shares Outstanding 21,396 20,955 441
Net Asset Value Per Share $ 38.67 $ 38.56
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
WORLDWIDE GROWTH SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
WORLDWIDE FUND)
<S> <C> <C> <C>
Net Assets $6,671,172 $6,496,773 $174,399
Shares Outstanding 139,716 136,049 3,667
Net Asset Value Per Share $ 47.75 $ 47.56
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
BALANCED SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
BALANCED FUND)
<S> <C> <C> <C>
Net Assets $2,506,677 $2,453,079 $53,598
Shares Outstanding 89,792 87,880 1,912
Net Asset Value Per Share $ 27.91 $ 28.04
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
EQUITY INCOME SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
EQUITY INCOME FUND)
<S> <C> <C> <C>
Net Assets $19,439 $18,975 $ 464
Shares Outstanding 712 695 17
Net Asset Value Per Share $ 27.32 $27.07
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
GROWTH AND INCOME SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
GROWTH AND INCOME FUND)
<S> <C> <C> <C>
Net Assets $91,462 $84,480 $6,982
Shares Outstanding 4,405 4,067 338
Net Asset Value Per Share $ 20.77 $20.68
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
FLEXIBLE INCOME SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
FLEXIBLE INCOME FUND)
<S> <C> <C> <C>
Net Assets $187,523 $186,681 $842
Shares Outstanding 16,429 16,357 72
Net Asset Value Per Share $11.41 $11.72
</TABLE>
<TABLE>
<CAPTION>
JANUS ASPEN INSTITUTIONAL RETIREMENT
MONEY MARKET SHARES SHARES
PORTFOLIO (ALSO JANUS ADVISER
MONEY MARKET FUND)
<S> <C> <C> <C>
Net Assets $70,419 $69,266 $1,153
Shares Outstanding 70,419 69,266 1,153
Net Asset Value Per Share $ 1.00 $ 1.00
</TABLE>
18
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of ___________, 2000 (the
"Agreement"), between Janus Aspen Series, a Delaware business trust with offices
at 100 Fillmore Street, Denver, Colorado, 80206 (the "Old Trust"), on behalf of
its series, Growth Portfolio, Aggressive Growth Portfolio, Capital Appreciation
Portfolio, International Growth Portfolio, Worldwide Growth Portfolio, Balanced
Portfolio, Equity Income Portfolio, Growth and Income Portfolio, Flexible Income
Portfolio, and Money Market Portfolio (each series of the Old Trust, a
"Transferring Fund"), and Janus Advisers Series, a Delaware business trust with
offices at 100 Fillmore Street, Denver, Colorado, 80206 (the "New Trust"), on
behalf of each of its series, Janus Adviser Growth Fund, Janus Adviser
Aggressive Growth Fund, Janus Adviser Capital Appreciation Fund, Janus Adviser
International Fund, Janus Adviser Worldwide Fund, Janus Adviser Balanced Fund,
Janus Adviser Equity Income Fund, Janus Adviser Growth and Income Fund, Janus
Adviser Flexible Income Fund, and Janus Adviser Money Market Fund (each series
of the New Trust, an "Acquiring Fund").
WHEREAS, each Transferring Fund is authorized to issue three classes of
shares, Institutional Shares, Service Shares and Retirement Shares, and may
issue additional classes in the future;
WHEREAS, Retirement Shares are sold to certain qualified retirement
plans;
WHEREAS, for each Transferring Fund, there is an Acquiring Fund
corresponding to each Transferring Fund as follows (and this Agreement refers to
the Transferring Fund and the corresponding Acquiring Fund as "corresponding"
funds):
<TABLE>
<CAPTION>
OLD TRUST NEW TRUST
- --------- ----------
<S> <C>
Janus Aspen Series Growth Portfolio Janus Adviser Growth Fund
Janus Aspen Series Aggressive Growth Portfolio Janus Adviser Aggressive Growth Fund
Janus Aspen Series Capital Appreciation Portfolio Janus Adviser Capital Appreciation Fund
Janus Aspen Series International Growth Portfolio Janus Adviser International Fund
Janus Aspen Series Worldwide Growth Portfolio Janus Adviser Worldwide Fund
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
OLD TRUST NEW TRUST
- --------- ----------
<S> <C>
Janus Aspen Series Balanced Portfolio Janus Adviser Balanced Fund
Janus Aspen Series Equity Income Janus Adviser Equity Income Fund
Portfolio
Janus Aspen Series Growth and Income Portfolio Janus Adviser Growth and Income Fund
Janus Aspen Series Flexible Income Portfolio Janus Adviser Flexible Income Fund
Janus Aspen Series Money Market Portfolio Janus Adviser Money Market Fund
</TABLE>
WHEREAS, the Old Trust and the New Trust wish to effect a
reorganization (the "Reorganization"), which will consist of designating the
Retirement Shares class of each Transferring Fund as a new series of the Old
Trust, assigning to each new series a portion of the assets of the Transferring
Fund equal in value to the aggregate net asset value of the Transferring Fund
represented by its Retirement Shares, transferring the assets of each new series
to the corresponding Acquiring Fund in exchange for shares of the corresponding
Acquiring Fund (the "Acquiring Fund Shares") and the redemption of those
Retirement Shares by distribution in kind to the holders thereof of the
Acquiring Fund Shares, such actions to occur on the closing date provided for in
paragraph 4.1 hereof (the "Closing Date"), all upon the terms and conditions
hereinafter set forth in this Agreement;
WHEREAS, as of the Closing Date the Old Trust and the New Trust will be
registered, open-end management investment companies, each Transferring Fund
will be a duly established and designated series of the Old Trust, and each
Acquiring Fund will be a duly established and designated series of the New
Trust;
WHEREAS, both the Old Trust and the New Trust will be authorized as of
the Closing Date to issue their shares of beneficial interest;
WHEREAS, the Board of Trustees of the Old Trust has determined that the
reorganization is in the best interests of the shareholders of each Transferring
Fund and that the interests of those shareholders would not be diluted as a
result of the Reorganization;
WHEREAS, the Board of Trustees of the New Trust has determined that the
Reorganization is in the best interests of the shareholders of each Acquiring
Fund and that the interests of those shareholders would not be diluted as a
result of the Reorganization; and
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter set forth, the parties agree as follows:
20
<PAGE>
1. CREATION OF ACQUIRING FUNDS
1.1. Investment Objectives, Policies and Procedures. Prior to the Closing
Date, the Board of Trustees of the New Trust shall adopt for each
Acquiring Fund investment objectives, policies and procedures
substantially identical to those of the corresponding Transferring
Fund.
1.2. Agreements and Plans. Prior to the Closing Date, the Board of Trustees
of the New Trust shall adopt for each Acquiring Fund investment
advisory agreements, other agreements, and distribution and
administrations plans and fees substantially similar to those of the
Retirement Shares class of the corresponding Transferring Fund.
1.3. Initial Shareholder Approvals. Prior to the valuation time provided
for in paragraph 3.1 hereof (the "Valuation Time"), each Acquiring
Fund shall issue to the corresponding Transferring Fund one nominal
share of the Acquiring Fund. No payment shall be made to the Acquiring
Funds in connection with the issuance of these nominal shares.
Provided that the Retirement Share shareholders of each Transferring
Fund have approved the Reorganization, the Board of Trustees of the
Old Trust, or any officer of the Old Trust duly authorized by that
Board, on behalf of each Transferring Fund as sole shareholder of the
corresponding Acquiring Fund, shall (1) approve the investment
advisory agreement between the Acquiring Fund and Janus Capital
Corporation substantially similar to the current advisory agreement
between the corresponding Transferring Fund and Janus Capital
Corporation, to take effect the day following the Closing Date, and
(2) elect Thomas H. Bailey, James P. Craig, III, Gary O. Loo, Dennis
B. Mullen, James T. Rothe, William D. Stewart, and Martin H. Waldinger
as Trustees of the New Trust to hold office until their successors are
elected. After these approvals, and before the Valuation Time, each
Transferring Fund shall redeem its nominal share of the Acquiring
Fund.
2. REORGANIZATION
2.1. Creation of New Series of the Old Trust. Subject to the terms and
conditions contained herein, the Old Trust agrees that, as of
immediately prior to the Valuation Time, it will designate the
Retirement Shares class of each Transferring Fund as a separate series
of the Old Trust (each a "Transferring Retirement Fund"), and each
Transferring Fund will allocate to the corresponding Transferring
Retirement Fund a portion of the assets of the Transferring Fund,
including securities and cash, having a value equal to the aggregate
net asset value of all Retirement Shares of the Transferring Fund,
both full and fractional, issued and outstanding (collectively, the
"Retirement Assets" of that Transferring Fund), such values to be
determined as set forth in paragraph 3.1. Exhibit A to this Agreement
identifies for each Transferring Fund its corresponding Transferring
Retirement Fund and their corresponding Acquiring Fund. Where
appropriate due to the size of the Retirement Assets (either in
absolute terms or as a percentage of the entire Transferring Fund),
the Retirement Assets shall consist of as nearly a pro-rata portion as
is reasonably practical of each security or other asset held by the
Transferring Fund as of
21
<PAGE>
immediately prior to the Valuation Time. If, however, the size of the
Retirement Assets make it impractical to apply such a pro rata split
to most of the securities held by the Transferring Fund, the
Retirement Assets shall be selected in a manner equitable to all
shareholders on the Transferring Fund. If the Retirement Assets
consist all or primarily of cash, Janus Capital Corporation shall bear
the cost of the brokerage and other expenses incurred by the Acquiring
Funds in investing the cash. The allocation of assets under this
paragraph 2.1 shall be done in accordance with the Old Trust's
procedures under Rule 17a-7 under the Investment Company Act of 1940,
as amended (the "1940 Act") as if the allocation of assets were a sale
of assets from each Transferring Fund to the corresponding
Transferring Retirement Fund; provided, however, instead of a cash
payment, each Transferring Retirement Fund will be considered to have
issued its shares to the corresponding Transferring Fund with a value
equal to the value of the Retirement Assets.
2.2. Transfer of Assets and Issuance of Shares. Subject to the terms and
conditions contained herein:
a. As of the Valuation Time, the Old Trust will transfer, convey and
assign the Retirement Assets of each Transferring Retirement Fund
to the corresponding Acquiring Fund.
b. In exchange therefor, each Acquiring Fund will (i) deliver to the
Transferring Retirement Fund a number of full and fractional
Acquiring Fund Shares equal to the number of full and fractional
Retirement Shares of the corresponding Transferring Retirement
Fund outstanding as of the Valuation Time and (ii) take certain
other actions, as set forth in paragraph 2.3. In lieu of
delivering certificates for the Acquiring Fund Shares, each
Acquiring Fund shall cause its transfer agent to credit the
Acquiring Fund Shares to the corresponding Transferring
Retirement Fund's account on the books of the Acquiring Fund and
shall deliver a confirmation thereof to the corresponding
Transferring Retirement Fund.
2.3. Liabilities. Each Transferring Fund will endeavor to discharge all of
its known liabilities and obligations attributable to its Retirement
Shares prior to the Closing Date to the extent reasonably practicable.
2.4. Delivery of Retirement Assets. Each Transferring Retirement Fund shall
deliver the Retirement Assets at the closing provided for in paragraph
4.1 (the "Closing") to the custodian for the corresponding Acquiring
Fund (each, a "Custodian"), for the account of the corresponding
Acquiring Fund, all securities not in bearer form duly endorsed, or
accompanied by duly executed separate assignments or stock powers, in
proper form for transfer, with signatures guaranteed, and with all
necessary stock transfer stamps, sufficient to transfer good and
marketable title thereto (including all accrued interest and dividends
and rights pertaining thereto) to the Custodian for the account of the
corresponding Acquiring Fund free and clear of all liens,
encumbrances, rights, restrictions and claims. All cash delivered
shall be in the form of immediately available
22
<PAGE>
funds payable to the order of the Custodian for the account of the
corresponding Acquiring Fund.
2.5. Subsequent Dividends or Interest Payments. Each Transferring Fund will
pay or cause to be paid to the corresponding Acquiring Fund any
dividends or interest received on or after the Closing Date with
respect to any of the Retirement Assets. The Transferring Fund will
transfer to the corresponding Acquiring Fund any distributions, rights
or other assets received by the Transferring Fund on or after the
Closing Date as distributions on or with respect to any of the
Retirement Assets. Such assets shall be deemed included in the
Retirement Assets and shall not be separately valued.
2.6. Distribution of Acquiring Fund Shares. As soon after the Closing as is
conveniently possible, the Transferring Retirement Fund will
distribute in kind pro rata to the holders of record of the Retirement
Shares of the Transferring Fund, determined as of the Valuation Time,
in redemption of such Retirement Shares, the Acquiring Fund Shares
received by the Transferring Retirement Fund pursuant to paragraph
2.2. Such distribution will be accomplished by the transfer agent of
each Acquiring Fund transferring the Acquiring Fund Shares then
credited to the account of the corresponding Transferring Retirement
Fund on the books of the Acquiring Fund to open accounts on such books
in the names of the holders of the Transferring Retirement Fund's
shares and representing the respective pro rata number of the
Acquiring Fund Shares due each such shareholder. All issued and
outstanding Retirement Shares of each Transferring Retirement Fund
will simultaneously be canceled on the books of the Transferring
Retirement Fund.
2.7. Transfer Taxes. Any transfer taxes payable upon issuance of the
Acquiring Fund Shares in a name other than the registered holder of
the redeemed Retirement Shares on the books of the Transferring Fund
shall, as a condition of such issuance and transfer, be paid by the
person to whom such Acquiring Fund Shares are to be issued and
transferred.
2.8. Reporting Responsibilities. Any reporting responsibility of the
Transferring Fund is and shall remain the responsibility of the
Transferring Fund after the Reorganization.
2.9. Expenses. Janus Capital Corporation shall bear all expenses incurred
in connection with the Agreement and the transactions contemplated
herein.
3. VALUATION
3.1. Valuation of the Retirement Assets. The value of the Retirement Assets
of each Transferring Fund shall be their values computed as of the
close of the regular trading session on the New York Stock Exchange
(normally 4:00 p.m., New York City time) on the Closing Date (the
"Valuation Time") based on the Transferring Fund's valuation
procedures set forth in the Transferring Fund's then-current
Prospectus and Statement of Additional Information and the
Transferring Fund's procedures under Rule 17a-7 under
23
<PAGE>
the 1940 Act. The aggregate net asset value of the Retirement Shares
of each Transferring Fund, both full and fractional, issued and
outstanding, shall be equal to (a) the number of Retirement Shares
issued and outstanding at the Valuation Time, multiplied by (b) the
net asset value per share of a Retirement Share computed as of the
Valuation Time, based on the Transferring Fund's valuation procedures
set forth in the Transferring Fund's then-current Prospectus and
Statement of Additional Information and the Transferring Fund's
procedures under Rule 17a-7 under the 1940 Act.
3.2. Net Asset Values of the Acquiring Funds. The net asset value of a
share of an Acquiring Fund as of the Valuation Time shall be the same
as net asset value per share of the Retirement Shares of the
corresponding Transferring Fund computed as of the Valuation Time in
accordance with paragraph 3.1.
4. CLOSING AND CLOSING DATE
4.1. Closing Time and Place. Subject to the provisions of Section 8 of this
Agreement, the Closing Date shall be August 1, 2000, or such other
date as the parties may mutually agree. All acts taking place on the
Closing Date, other than the acts called for by paragraph 1.3 hereof,
shall be deemed to take place simultaneously as of the close of the
regular trading session on the New York Stock Exchange on the Closing
Date unless otherwise provided, notwithstanding that the Closing shall
be held at 4:30 p.m., Mountain time, on the Closing Date at the
offices of Janus Capital Corporation, 100 Fillmore Street, Denver,
Colorado, 80206, or at such other time and/or place as the parties may
mutually agree.
4.2. Custodian Certificate. Each Custodian shall deliver at the Closing a
certificate of an authorized officer stating that (a) the Retirement
Assets for each Transferring Retirement Fund have been delivered in
proper form to each Acquiring Fund for which the Custodian acts as
custodian and (b) all necessary taxes including all applicable stock
transfer stamps have been paid, or provision for payment shall have
been made, in conjunction with the delivery of portfolio securities.
4.3. Delay in Valuation. If at the Valuation Time (a) the trading market or
markets for portfolio securities of any Transferring Retirement Fund
shall be closed to trading or trading thereon shall be restricted, or
(b) trading or the reporting of trading in such market or markets
shall be disrupted so that accurate appraisal of the value of the net
assets of the Retirement Assets is impracticable, the Closing Date
shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been
restored.
4.4. Transfer Agent Certificates. The transfer agent for the Old Trust
shall deliver at the Closing a certificate of an authorized officer
stating that its records contain the names and addresses of all the
shareholders of each Transferring Retirement Fund and the number and
percentage ownership of outstanding shares owned by each such
shareholder immediately prior to the Closing. The transfer agent for
the New Trust shall
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<PAGE>
issue and deliver to the Secretary of the Old Trust a confirmation, or
other evidence satisfactory to the Old Trust, that the shares of each
Acquiring Fund to be transferred to the corresponding Transferring
Retirement Fund on the Closing Date have been credited to the
Transferring Retirement Fund's account on the books of the Acquiring
Fund.
4.5. Other Documents. At the Closing, each party shall deliver to the other
such bills of sale, checks, assignments, receipts or other documents
as such other party or its counsel may reasonably request.
5. REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties of the Old Trust. The Old Trust
represents and warrants to the New Trust as follows:
a. Structure and Standing. The Old Trust is a business trust duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has power to own all of its
properties and assets and to carry out this Agreement.
b. SEC Registration. The Old Trust is registered under the 1940 Act
as an open-end, non-diversified, management investment company,
and such registration has not been revoked or rescinded and is in
full force and effect.
c. Series. Each Transferring Fund is a duly established and
designated series of the Old Trust. On or before the Closing
Date, the Old Trust will designate each Transferring Retirement
Fund as a duly established and designated series of the Old
Trust.
d. Prospectus. The current prospectus and statement of additional
information of the Retirement Shares of the Transferring Fund,
conform in all material respects to the applicable requirements
of the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act and the rules and regulations of the Securities and
Exchange Commission (the "SEC") thereunder and do not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
e. Trust Instrument. The Old Trust is not, and the execution,
delivery and performance of this Agreement will not result, in
material violation of the Old Trust's Trust Instrument dated May
19, 1993, as amended (the "Trust Instrument") or the Trust's
By-Laws or of any agreement, indenture, instrument, contract,
lease or other undertaking to which the Old Trust or any
Transferring Fund is a party or by which it is bound.
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<PAGE>
f. Contracts. The Old Trust has no material contracts or other
commitments outstanding (other than this Agreement) that will be
terminated with liability to any Transferring Fund's Retirement
Shares on or prior to the Closing Date.
g. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is
currently pending or to its knowledge threatened against the Old
Trust with respect to its Transferring Funds or any of their
properties or assets that, if adversely determined, would
materially and adversely affect its financial condition or the
conduct of its business. The Old Trust knows of no facts that
might form the basis for the institution of such proceedings and
is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body that
materially and adversely affects its business or its ability to
consummate the transactions herein contemplated.
h. Financial Statements. The Statements of Assets and Liabilities of
each Transferring Fund for the fiscal years ended December 31,
1997, 1998 and 1999, have been audited by PricewaterhouseCoopers,
LLP, independent auditors, or its predecessors; such financial
statements are in accordance with generally accepted accounting
principles, consistently applied; such statements (copies of
which have been furnished to the New Trust) fairly reflect the
financial condition of the Transferring Funds as of such dates;
and there are no known contingent liabilities of the Transferring
Funds as of such dates not disclosed therein.
i. No Material Changes. Since December 31, 1999, there has not been
any material adverse change in the Transferring Funds' financial
condition, assets, liabilities or business other than changes
occurring in the ordinary course of business nor any incurrence
by any Transferring Fund of indebtedness maturing more than one
year from the date such indebtedness was incurred.
j. Tax Returns. At the Closing Date, all Federal and other tax
returns and reports of the Transferring Funds required by law to
have been filed by such date shall have been filed, and all
Federal and other taxes shall have been paid so far as due, or
provision shall have been made for the payment thereof; and to
the best of the Old Trust's knowledge, no such return is
currently under audit and no assessment has been asserted with
respect to any such return.
k. RIC Status. For each taxable year of the Transferring Funds ended
on or prior to the Closing Date, they have met the requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code"), for qualification and treatment as a regulated
investment company, and will continue to meet all such
requirements for the taxable year that includes the Closing Date.
l. Shares. All issued and outstanding shares of each Transferring
Fund are duly and validly issued and outstanding, fully paid and
non-assessable by the Transferring Fund, except to the extent
that under Delaware law shareholders of a business trust
26
<PAGE>
may, under certain circumstances, be held personally liable for
its obligations. All of the issued and outstanding shares of the
Transferring Retirement Funds, at the Valuation Time, will be
held by the persons and in the amounts set forth in the records
of the transfer agent as provided in paragraph 4.4. The
Transferring Retirement Funds do not have outstanding any
options, warrants or other rights to subscribe for or purchase
any shares of any Transferring Retirement Fund, nor is there
outstanding any security convertible into any share of any of the
Transferring Retirement Funds, except such as are contemplated
herein.
m. Authority to Transfer Retirement Assets. On the Closing Date,
each Transferring Retirement Fund will have full right, power and
authority to sell, assign, transfer and deliver the Retirement
Assets.
n. Authorization. The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing
Date by all necessary action on the part of the Old Trust's Board
of Trustees; and, subject to the approval of the shareholders of
the Retirement Shares of each Transferring Fund and assuming due
execution and delivery hereof by the New Trust, this Agreement
will constitute the valid and legally binding obligation of the
Old Trust on behalf of its series, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, and to general
principles of equity and the discretion of the court (regardless
of whether the enforceability is considered in a proceeding in
equity or at law).
o. Proxy Statement. The proxy statement and referred to in paragraph
6.3 hereof (the "Proxy Statement") (other than information that
relates to or has been furnished by the New Trust) will, on the
mailing date of the Proxy Statement and on the Closing Date, not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which such statements were made, not misleading.
5.2. Representations and Warranties of the New Trust. The New Trust
represents and warrants to the Old Trust as follows:
a. Structure and Standing. The New Trust is a business trust duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has power to own its properties and
assets and to carry out this Agreement.
b. SEC Registration. On the Closing Date, the New Trust will be
registered under the 1940 Act as an open-end, non-diversified,
management investment company, and such registration will not
been revoked or rescinded and will be in full force and effect.
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<PAGE>
c. Prospectus. The New Trust prospectus and statement of additional
information that is or will be included in its registration
statement will, at the time the registration statement becomes
effective, conform in all material respects to the applicable
requirements of the 1933 Act, the 1940 Act and the rules and
regulations of the SEC thereunder and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
d. Trust Instrument. The New Trust is not, and the execution,
delivery and performance of this Agreement will not result, in
material violation of its Trust Instrument or its By-Laws or of
any agreement, indenture, instrument, contract, lease or other
undertaking to which it is a party or by which it is bound.
e. Litigation. No litigation or administrative proceeding or
investigation of or before any court or governmental body is
currently pending or to its knowledge threatened against the New
Trust or any of its properties or assets that, if adversely
determined, would materially and adversely affect its financial
condition or the conduct of its business. The New Trust knows of
no facts that might form the basis for the institution of such
proceedings and is not a party to or subject to the provisions of
any order, decree or judgment of any court or governmental body
that materially and adversely affects its business or its ability
to consummate the transactions herein contemplated.
f. Shares. All shares of the New Trust issued in connection with the
Reorganization will be duly and validly issued and outstanding,
fully paid and non-assessable by the New Trust, except to the
extent that under Delaware law shareholders of a business trust
may, under certain circumstances, be held personally liable for
its obligations. The New Trust does not have outstanding any
options, warrants or other rights to subscribe for or purchase
any shares of the New Trust, nor is there outstanding any
security convertible into any shares of the New Trust, except
such as are contemplated herein.
g. Authorization. The execution, delivery and performance of this
Agreement will have been duly authorized prior to the Closing
Date by all necessary action, if any, on the part of the New
Trust's Board of Trustees; and, assuming due execution and
delivery hereof by the Old Trust, this Agreement will constitute
the valid and legally binding obligation of the New Trust on
behalf of the Acquiring Funds, enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, and to general
principles of equity and the discretion of the court (regardless
of whether the enforceability is considered in a proceeding in
equity or at law).
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<PAGE>
h. Proxy Statement. The Proxy Statement (only insofar as it relates
to the New Trust and is based on information furnished by the New
Trust) will, on the mailing date of the Proxy Statement and on
the Closing Date, not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which such statements were made, not
misleading.
6. COVENANTS OF THE OLD TRUST AND THE NEW TRUST
6.1. Ordinary Course. The Old Trust will operate its business in the
ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include the
declaration and payment of customary dividends and other distributions
in the ordinary course and on the Closing Date.
6.2. Shareholder Meeting. The Old Trust shall call a meeting of its
Retirement Shares shareholders to consider and act upon this Agreement
and to take all other action necessary to obtain approval of the
transactions contemplated herein.
6.3. Proxy Statement. The Old Trust and the New Trust shall cooperate in
the provision of all information reasonably necessary for the
preparation, filing and mailing of the proxy statement in connection
with the meeting of the Retirement Share shareholders to consider
approval of this Agreement and the transactions contemplated herein
(the "Proxy Statement").
6.4. Approvals. The New Trust shall use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the 1940
Act and such of the state Blue Sky or securities laws as it may deem
appropriate in order to continue its operations after the Closing
Date.
6.5. Additional Actions. Subject to the provisions of this Agreement, the
Old Trust and the New Trust will each take, or cause to be taken, all
action and do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated herein.
7. CONDITIONS PRECEDENT
7.1. Conditions Precedent to Obligation of the New Trust. The obligations
of the New Trust to consummate the transactions provided for herein
shall be subject, at its election, to the performance by the Old Trust
of all the obligations to be performed by it hereunder on or before
the Closing Date and, in addition thereto, the following conditions:
a. Representation and Warranties. All representations and warranties
of the Old Trust contained in this Agreement shall be true and
correct in all material respects as of the date hereof and,
except as they may be affected by the transactions contemplated
29
<PAGE>
herein, as of the Closing with the same force and effect as if
made on the Closing Date and as of the Closing.
b. Certificates. The Old Trust shall have delivered to the New Trust
at the Closing a certificate executed in its name by its
President and a Vice President, in form and substance reasonably
satisfactory to the New Trust, to the effect that the
representations and warranties of the Old Trust made in this
Agreement are true and correct at and as of the Closing, except
as they may be affected by the transactions contemplated herein,
and as to such other matters as the New Trust shall reasonably
request.
7.2. Conditions Precedent to Obligations of the Old Trust. The obligations
of the Old Trust to consummate the transactions provided for herein
shall be subject, at its election, to the performance by the New Trust
of all the obligations to be performed by it hereunder on or before
the Closing Date and, in addition thereto, the following conditions:
a. Representations and Warranties. All representations and
warranties of the New Trust contained in this Agreement shall be
true and correct in all material respects as of the date hereof
and, except as they may be affected by the transactions
contemplated herein, as of the Closing with the same force and
effect as if made on the Closing Date and as of the Closing.
b. Certificate. The New Trust shall have delivered to the Old Trust
at the Closing a certificate executed in its name by its
President and a Vice President, in form and substance reasonably
satisfactory to the Old Trust, to the effect that the
representations and warranties of the New Trust made in this
Agreement are true and correct at and as of the Closing, except
as they may be affected by the transactions contemplated herein,
and as to such other matters as the Old Trust shall reasonably
request.
7.3. Further Conditions Precedent to Obligations of the Old Trust and the
New Trust. If any of the conditions set forth below does not exist on
or before the Closing Date with respect to the Old Trust or the New
Trust, the other party to this Agreement, at its option, shall not be
required to consummate the transactions contemplated herein.
a. Shareholder Approval. This Agreement and the transactions
contemplated herein shall have been approved by the requisite
vote of the holders of the outstanding Retirement Shares of each
of the Transferring Funds in accordance with the provisions of
the Trust Instrument and the 1940 Act. If the shareholders of
Retirement Shares class of some but not all of the Transferring
Funds approve this Agreement and the transactions contemplated
herein, the Board of Trustees of the Old Trust or of the New
Trust may terminate this Agreement pursuant to Section 8 or may
determine to proceed with the Agreement and the transactions with
respect to the Transferring Funds for which a necessary
shareholder approval was obtained.
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<PAGE>
b. Litigation. On the Closing Date, no action, suit or other
proceeding shall be pending before any court or governmental
agency in which it is sought to restrain or prohibit, or obtain
damages or other relief in connection with, this Agreement or the
transactions contemplated herein.
c. Consents and Approvals. All consents of other parties and all
other consents, orders and permits of Federal, state and local
regulatory authorities (including those of the SEC and of state
Blue Sky and securities authorities) deemed necessary by the Old
Trust or the New Trust to permit consummation, in all material
respects, of the transactions contemplated herein shall have been
obtained, except where failure to obtain any such consent, order
or permit would not involve a risk of a material adverse effect
on the assets or properties of the Old Trust or the New Trust.
d. Distribution. The Transferring Fund shall have declared a
dividend or dividends that, together with all previous dividends,
shall have the effect of distributing to the Transferring Fund's
shareholders all of its investment company taxable income, and
net interest income excludable from gross income under Section
103(a) of the Code, for all its taxable years ended on or prior
to the Closing Date and for its current taxable year through the
Closing Date (computed without regard to any deduction for
dividends paid) and any net capital gain realized in all such
taxable years (after reduction for any capital loss
carryforward).
e. Tax Ruling or Opinion. The Old Trust has received either an
Internal Revenue Service private letter ruling or an opinion from
Shea & Gardner regarding the tax effects of the Reorganization
and the Old Trust has taken any actions contemplated, recommended
or required by the private letter ruling or opinion.
8. TERMINATION OF AGREEMENT
8.1. Termination. This Agreement and the transactions contemplated herein
may be terminated and abandoned by resolution of the Board of Trustees
of the Old Trust or of the New Trust, as the case may be, at any time
at or prior to the Closing Date (notwithstanding any vote of
shareholders) if: (a) circumstances should develop that, in the
opinion of either such Board, make proceeding with this Agreement
inadvisable; (b) a material breach by the other party of any
representation, warranty, or agreement contained therein has occurred;
or (c) a condition to the obligation of the terminating party cannot
reasonably be met.
8.2. Effect of Termination. If this Agreement is terminated and the
Reorganization is abandoned pursuant to the provisions of this Section
8, this Agreement shall become void and have no effect, without any
liability on the part of either party hereto or the Trustees, officers
or shareholders of the Old Trust or of the New Trust, as the case may
be, in respect of this Agreement. If this Agreement is terminated or
the exchange contemplated herein is abandoned, Janus Capital
Corporation shall bear all expenses
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<PAGE>
incurred in connection with this Agreement and the transactions
contemplated herein up to the time of such termination or abandonment.
9. MISCELLANEOUS
9.1. Waiver. At any time prior to the Closing Date, any of the conditions
set forth in Section 7 may be waived by the Board of Trustees of the
Old Trust or of the New Trust, as the case may be, if, in the judgment
of either, such waiver will not have a material adverse effect on the
benefits intended under this Agreement to the shareholders of the Old
Trust or of the New Trust as the case may be.
9.2. Captions. The captions contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.3. Survival of Representations and Warranties. None of the
representations and warranties included or provided for herein shall
survive consummation of the Reorganization.
9.4. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter
hereof and merges and supersedes all prior discussions, agreements and
understandings of every kind and nature between them relating to the
subject matter hereof. Neither party shall be bound by any condition,
definition, warranty or representation other than as set forth or
provided in this Agreement or as may be, on or subsequent to the date
hereof, set forth in a writing signed by the party to be bound
thereby.
9.5. Authorizations. All agreements, representations, actions and
obligations described herein made or to be taken or undertaken by a
Transferring Fund or a Transferring Retirement Fund are made and shall
be taken or undertaken by the Old Trust on behalf of the Transferring
Fund or the Transferring Retirement Fund. All agreements,
representations, actions and obligations described herein made or to
be taken or undertaken by an Acquiring Fund are made and shall be
taken or undertaken by the New Trust on behalf of the Acquiring Fund.
9.6. Trust Disclosure. Copies of the Trust Instruments of the Old Trust and
the New Trust are on file with the Secretary of the State of Delaware.
This Agreement is executed by the undersigned officers on behalf of
the Old Trust and the New Trust, respectively, and not on behalf of
such officers or the Trustees of either the Old Trust or the New Trust
as individuals. The respective obligations of the Old Trust and the
New Trust under this Agreement are not binding upon any of their
respective Trustees, officers, shareholders or partners individually.
9.7. Choice of Law. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Delaware, without
giving effect to principles of conflict of laws.
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<PAGE>
9.8. Counterparts. This Agreement may be executed in counterparts, each of
which, when executed and delivered, shall be deemed to be an original.
9.9. Assignment. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, but no
assignment or transfer hereof or of any rights or obligations
hereunder shall be made by either party without the written consent of
the other party. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give any person, firm or
corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of
this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Old Trust, on behalf of the Transferring Funds,
and the New Trust, on behalf of the Acquiring Funds have caused this Agreement
and Plan of Reorganization to be executed and attested on its behalf by its duly
authorized representatives as of the date first above written.
JANUS ASPEN SERIES on behalf of Growth Portfolio, Aggressive Growth
Portfolio, Capital Appreciation Portfolio, International Growth
Portfolio, Worldwide Growth Portfolio, Balanced Portfolio, Equity
Income Portfolio, Growth and Income Portfolio, Flexible Income
Portfolio, and Money Market Portfolio.
ATTEST: By:
------------------------------- --------------------------------
Secretary Vice President
JANUS ADVISER SERIES on behalf of Janus Adviser Growth Fund,
Janus Adviser Aggressive Growth Fund, Janus Adviser Capital
Appreciation Fund, Janus Adviser International Fund, Janus
Adviser Worldwide Fund, Janus Adviser Balanced Fund, Janus
Adviser Equity Income Fund, Janus Adviser Growth and Income
Fund, Janus Adviser Flexible Income Fund, and Janus Adviser
Money Market Fund.
ATTEST: By:
------------------------------- --------------------------------
Secretary Vice President
34
<PAGE>
EXHIBIT A TO AGREEMENT AND PLAN OF REORGANIZATION
<TABLE>
<CAPTION>
CORRESPONDING CORRESPONDING
TRANSFERRING FUND TRANSFERRING RETIREMENT FUND ACQUIRING FUND
- ----------------- ---------------------------- --------------
<S> <C> <C>
Janus Aspen Series Growth Portfolio Janus Aspen Series Growth Retirement Janus Adviser Growth Fund
Portfolio
Janus Aspen Series Aggressive Growth Janus Aspen Series Aggressive Growth Janus Adviser Aggressive Growth
Portfolio Retirement Portfolio Fund
Janus Aspen Series Capital Janus Aspen Series Capital Janus Adviser Capital Appreciation
Appreciation Portfolio Appreciation Retirement Portfolio Fund
Janus Aspen Series International Janus Aspen Series International Janus Adviser International Fund
Growth Portfolio Growth Retirement Portfolio
Janus Aspen Series Worldwide Growth Janus Aspen Series Worldwide Growth Janus Adviser Worldwide Fund
Portfolio Retirement Portfolio
Janus Aspen Series Balanced Portfolio Janus Aspen Series Balanced Retirement Janus Adviser Balanced Fund
Portfolio
Janus Aspen Series Equity Income Janus Aspen Series Equity Income Janus Adviser Equity Income Fund
Portfolio Retirement Portfolio
Janus Aspen Series Growth and Income Janus Aspen Series Growth and Income Janus Adviser Growth and Income
Portfolio Retirement Portfolio Fund
Janus Aspen Series Flexible Income Janus Aspen Series Flexible Income Janus Adviser Flexible Income Fund
Portfolio Retirement Portfolio
Janus Aspen Series Money Market Janus Aspen Series Money Market Janus Adviser Money Market Fund
Portfolio Retirement Portfolio
</TABLE>
35
<PAGE>
Janus Aspen Series Retirement Shares
The 1999 Annual Report to Shareholders for Janus Aspen Series Retirement Shares
is incorporated by reference into this document (which means it is legally part
of this document).
36
<PAGE>
JANUS ASPEN SERIES
________ PORTFOLIO - RETIREMENT SHARES
THIS PROXY IS BEING SOLICITED BY THE TRUSTEES OF JANUS ASPEN SERIES. THE
TRUSTEES RECOMMEND VOTING FOR THE PROPOSAL.
The undersigned hereby appoints ____________, or any or all of them, as
attorneys, with full power of substitution, to vote the shares of Janus Aspen
Series ________ Portfolio - Retirement Shares which the undersigned is entitled
to vote at the Special Meeting of Shareholders of the Retirement Shares Class to
be held at 3773 Cherry Creek North Drive, Denver, Colorado 80209 on July 20,
2000 at 10:00 a.m. Mountain Time, and at any adjournments. This Proxy shall be
voted on the Proposal described in the accompanying Proxy Statement as specified
on the reverse side. As to any other matter that comes before the meeting, the
persons appointed above will vote in accordance with their best judgment. The
undersigned hereby acknowledges receipt of the accompanying Proxy Statement and
Notice of Special Meeting.
Note: Please sign exactly as your name appears on this Proxy. If you are signing
this Proxy in a fiduciary capacity, for example as a trustee, please state that
capacity along with your signature.
- -------------------------------
Signature
- --------------------------------
Date
Please vote by filling in the appropriate box below and signing and dating the
other side of the card. Please use blue or black ink or dark pencil. Please do
not use red ink.
Proposal For Against Abstain
To approve a reorganization that would [ ] [ ] [ ]
transfer the assets relating to the
Retirement Shares class to a
corresponding fund of Janus Adviser Series.
If you sign, date and return this Proxy but do not fill in a box above, we will
vote your shares "FOR" the Proposal.
