Preview | Share Exchange Agreement


		Page

ARTICLE I. Certain Definitions and Other Matters			2
	Section 1.1 Certain Definitions		2
	Section 1.2 Terms Defined in Other Sections		9
	Section 1.3 Interpretation		10
ARTICLE II. Exchange of Stock; Closing; Consideration Adjustment			10
	Section 2.1 Exchange of Stock		10
	Section 2.2 Closing		11
	Section 2.3 DSTs Deliveries at the Closing		11
	Section 2.4 Janus Deliveries at the Closing		12
	Section 2.5 Post-Closing Adjustments		12
ARTICLE III. Reorganization			13
	Section 3.1 Reorganization		13
	Section 3.2 Assets and Liabilities		14
ARTICLE IV. Representations and Warranties of DST			15
	Section 4.1 Organization and Standing		15
	Section 4.2 Capitalization of OMS		16
	Section 4.3 Corporate Power and Authority		16
	Section 4.4 Conflicts; Consents and Approvals		17
	Section 4.5 Proxy Statement		18
	Section 4.6 Board Approval		18
	Section 4.7 Required Vote		18
	Section 4.8 No Material Adverse Effect		19
	Section 4.9 Taxes		19
	Section 4.10 Compliance with Law		20
	Section 4.11 Intellectual Property		20
	Section 4.12 Title to Assets; Condition and Sufficiency of Assets		21
	Section 4.13 Environmental Matters		21
	Section 4.14 Litigation		22
	Section 4.15 Employee Benefit Plans		23
	Section 4.16 Contracts		24
	Section 4.17 Labor and Employment Matters		26
	Section 4.18 Financial Statements		27
	Section 4.19 Permits; Compliance		27
	Section 4.20 Real Estate		27
	Section 4.21 Intercompany Services		28
	Section 4.22 Relationships with Customers		28
	Section 4.23 Guaranties		29
	Section 4.24 Certain Other Tax Matters		29


ARTICLE V. Representations and Warranties of Janus		29
	Section 5.1 Organization and Standing	29
	Section 5.2 Corporate Power and Authority	29
	Section 5.3 Conflicts; Consents and Approvals	30
	Section 5.4 Janus DST Shares	30
	Section 5.5 Board and Stockholder Approval	31
	Section 5.6 Litigation	31
	Section 5.7 No Material Adverse Effect	31
	Section 5.8 Investment Representation	31
	Section 5.9 Certain Tax Matters	31
	Section 5.10 Governmental Actions	31
ARTICLE VI. Covenants and Agreements		32
	Section 6.1 Proxy Statement	32
	Section 6.2 Stockholder Meeting; Board Recommendation	32
	Section 6.3 Access and Information	33
	Section 6.4 Conduct of Business	33
	Section 6.5 Closing Documents	33
	Section 6.6 Efforts to Consummate; Further Assurances	33
	Section 6.7 Certain Covenants	35
	Section 6.8 Notification by the Parties	36
	Section 6.9 Additional Covenants	36
	Section 6.10 [Reserved]	36
	Section 6.11 Insurance Policies	36
	Section 6.12 Confidentiality; Access to Records after Closing	37
	Section 6.13 Release of Restrictions; Intercompany Accounts	38
	Section 6.14 Options to Purchase DST Stock Held By Business and Former Business Employees Accounts	38
	Section 6.15 Cooperation with Respect to Financial Reporting	39
	Section 6.16 Non-Solicitation of Employees	39
	Section 6.17 [***]	39
	Section 6.18 [Reserved]	39
	Section 6.19 No Solicitation	39
	Section 6.20 Use of Names	39
	Section 6.21 [Reserved]	40
	Section 6.22 DST Share Value Determination Period	40
	Section 6.23 Waiver	40
	Section 6.24 Certain Tax Matters	40
	Section 6.25 DST Shares Retained by Janus	41
	Section 6.26 Financing	41
ARTICLE VII. Tax Matters		42
ARTICLE VIII. Conditions to Closing		42
	Section 8.1 Mutual Conditions	42
	Section 8.2 Conditions to Janus Obligations	43


	Section 8.3 Conditions to DSTs and OMSs Obligations	44
	Section 8.4 Frustration of Closing Conditions	44
ARTICLE IX. Termination		45
	Section 9.1 Termination	45
	Section 9.2 Effect of Termination	45
ARTICLE X. Survival of Representations and Warranties; Indemnification		46
	Section 10.1 Survival of Representations and Warranties	46
	Section 10.2 Indemnification by DST	46
	Section 10.3 Indemnification by Janus	47
	Section 10.4 Definition of Damage; Determination of Indemnification	48
	Section 10.5 Notice	49
	Section 10.6 Third Party Claim	50
	Section 10.7 Exclusivity	51
ARTICLE XI. Miscellaneous		51
	Section 11.1 Notices	51
	Section 11.2 Expenses	52
	Section 11.3 Governing Law; Consent to Jurisdiction	52
	Section 11.4 Waiver of Jury Trial	52
	Section 11.5 Assignment; Successors and Assigns; No Third Party Rights	53
	Section 11.6 Counterparts	53
	Section 11.7 Titles and Headings	53
	Section 11.8 Entire Agreement	53
	Section 11.9 Amendment and Modification	53
	Section 11.10 Publicity; Public Announcements	53
	Section 11.11 Waiver	53
	Section 11.12 Severability	54
	Section 11.13 No Strict Construction	54
	Section 11.14 Knowledge	54
	Section 11.15 Affiliate Status	54
	Section 11.16 Tax Consequences	54
Exhibit A [***]
Exhibit B Forms of Tax Opinions

This SHARE EXCHANGE AGREEMENT, dated as of August 25, 2003 (this Agreement), is entered into by and among DST SYSTEMS, INC., a Delaware corporation having its principal place of business at 333 West 11th Street, Kansas City, Missouri, 64105 (DST), DST OUTPUT MARKETING SERVICES, INC., a New York corporation and an indirect wholly owned subsidiary of DST having its principal place of business at 333 West 11th Street, Kansas City, Missouri, 64105 (OMS), and JANUS CAPITAL GROUP INC., a Delaware corporation having its principal place of business at 100 Fillmore Street, Denver, Colorado 80206 (Janus).

WHEREAS, the Business (as defined in Article I) is conducted by OMS and the DST Entities (as defined in Article I);

WHEREAS, prior to the Closing (as defined in Section 2.2), DST will complete the Reorganization (as defined in Section 3.1), pursuant to which the Business as a going concern and the Additional Assets (as defined in Article I) will be consolidated, whether by merger or contribution or otherwise, into OMS, and thereafter at the Closing the Business will be operated solely by OMS and OMS will hold the Additional Assets;

WHEREAS, immediately following the Reorganization, OMS shall be a direct, wholly owned subsidiary of DST;

WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, (a) DST desires to exchange the OMS Shares (as defined in Article I) for the Janus DST Shares (as defined in Article I), and (b) Janus desires to exchange the Janus DST Shares for the OMS Shares;

WHEREAS, immediately following the Exchange, Janus shall continue to own, subject to certain restrictions, the shares of DST Common Stock (as defined in Article I) (other than the Janus DST Shares) which Janus owned immediately prior to the Closing;

WHEREAS, the parties hereto intend the Exchange (as defined in Section 2.1) to qualify as a tax-free exchange under Section 355(a) of the Code (as defined in Article I); and

WHEREAS, the Boards of Directors of DST and Janus have, in each case, determined that it is in the best interests of their respective corporations to enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and intending to be legally bound, the parties hereto agree as follows:

End of Preview