Exhibit No. Ex-99.h(2)
THE JAPAN FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the October 4, 2002, by and between The Japan Fund,
Inc., a Maryland Corporation, with its principal office and place of business at
Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust"), and Forum
Shareholder Services, LLC, a Delaware limited liability company with its
principal office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
00000 ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company and
may issue its shares of beneficial interest, no par value (the "Shares"), in
separate series and classes; and
WHEREAS, the Trust offers shares in various series as listed in Appendix A
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust may in the future offer shares of various classes of each
Fund as listed in Appendix A hereto (each such class together with all other
classes subsequently established by the Trust in a Fund being herein referred to
as a "Class," and collectively as the "Classes");
WHEREAS, the Trust desires that Forum perform as the transfer agent and
dividend disbursing agent for each Fund and Forum is willing to provide these
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust, on behalf of the Funds, hereby appoints Forum to act as,
and Forum agrees to act as, (i) transfer agent for the authorized and issued
shares of beneficial interest of the Trust representing interests in each of the
respective Funds and Classes thereof ("Shares"), (ii) dividend disbursing agent
and (iii) agent in connection with any accumulation, open-account or similar
plans provided to the registered owners of shares of any of the Funds
("Shareholders") and set out in the currently effective prospectuses and
statements of additional information (collectively "prospectus") of the
applicable Fund, including, without limitation, any periodic investment plan or
periodic withdrawal program.
(b) In connection therewith, the Trust has delivered to Forum copies of:
(i) the Trust's Articles of Incorporation and Bylaws (collectively, as amended
from time to time, "Organic Documents"); (ii) the Trust's Registration Statement
and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Trust's current Prospectus and Statement of Additional Information of each Fund
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"); (iv) each current plan of distribution or similar document
adopted by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by the Trust
("Service Plan"); and (v) all applicable procedures adopted by the Trust with
respect to the Funds, and shall promptly furnish Forum with all amendments of or
supplements to the foregoing. The Trust shall deliver to Forum a certified copy
of the resolution of the Board of Directors of the Trust (the "Board")
appointing Forum and authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from time
to time by agreement between the Trust on behalf of each of the Funds, as
applicable, and Forum, Forum will perform the following services:
(i) provide the services of a transfer agent, dividend disbursing agent
and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan
or periodic withdrawal program) that are customary for open-end management
investment companies including: (A) maintaining all Shareholder accounts,
(B) preparing Shareholder meeting lists, (C) mailing proxies and related
materials to Shareholders, (D) mailing Shareholder reports and
prospectuses to current Shareholders, (E) withholding taxes on U.S.
resident and non-resident alien accounts, (F) preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required by
federal authorities with respect to distributions for Shareholders, (G)
preparing and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, (H) preparing and
mailing activity statements for Shareholders, and (I) providing
Shareholder account information;
(ii) receive for acceptance orders for the purchase of Shares and promptly
deliver payment and appropriate documentation therefor to the custodian of
the applicable Fund (the "Custodian") or, in the case of Fund's operating
in a master-feeder or fund of funds structure, to the transfer agent or
interestholder recordkeeper for the master portfolios in which the Fund
invests;
(iii) pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
Fund's operating in a master-
feeder structure, to the transfer agent or interestholder recordkeeper for
the master fund in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as required by the
prospectus pursuant to which the redeemed Shares were offered and as
instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate instructions
from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the Trust
with respect to Shares;
(viii) issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or destroyed
upon receipt by Forum of indemnification satisfactory to Forum and
protecting Forum and the Trust and, at the option of Forum, issue
replacement certificates in place of mutilated share certificates upon
presentation thereof without requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and prepare and
transmit payments to underwriters, selected dealers and others for
commissions and service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements to
the Trust and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Trust and maintain pursuant to
Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as amended
("1934 Act") a record of the total number of Shares of the Trust, each
Fund and each Class thereof, that are authorized, based upon data provided
to it by the Trust, and are issued and outstanding and provide the Trust
on a regular basis a report of the total number of Shares that are
authorized and the total number of Shares that are issued and outstanding;
(xiii) provide a system which will enable the Trust to calculate the total
number of Shares of each Fund and Class thereof sold in each State;
(xiv) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes, coordinate the
tabulation of proxy and shareholder meeting votes and perform such other
additional services as may be specified from time to time by the Trust, all
pursuant to mutually acceptable compensation and implementation agreements.
(c) The Trust or its administrator or other agent (i) shall identify to
Forum in writing those transactions and assets to be treated as exempt from
reporting for each state and territory of the United States and for each foreign
jurisdiction (collectively "States") and (ii) shall monitor the sales activity
with respect to Shareholders domiciled or resident in each State. The
responsibility of Forum for the Trust's State registration status is solely
limited to the reporting of transactions to the Trust, and Forum shall have no
obligation, when recording the issuance of Shares, to monitor the issuance of
such Shares or to take cognizance of any laws relating to the issue or sale of
such Shares, which functions shall be the sole responsibility of the Trust or
its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures
reasonably acceptable to the Trust for the safekeeping, control, preparation and
use of share certificates, check forms, and facsimile signature imprinting
devices. Forum shall establish and maintain facilities and procedures reasonably
acceptable to the Trust for safekeeping of all records maintained by Forum
pursuant to this Agreement.
(e) Forum shall cooperate with each Fund's independent public accountants
and shall take reasonable action to make all necessary information available to
the accountants for the performance of the accountants' duties.
(f) Except with respect to Forum's duties as set forth in this Section 2
and except as otherwise specifically provided herein, the Trust assumes all
responsibility for ensuring that the Trust complies with all applicable
requirements of the Securities Act, the 1940 Act and any laws, rules and
regulations of governmental authorities with jurisdiction over the Trust. All
references to any law in this Agreement shall be deemed to include reference to
the applicable rules and regulations promulgated under authority of the law and
all official interpretations of such law or rules or regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, the Trust shall deliver or cause to be delivered over
to Forum (i) an accurate list of Shareholders of the Trust, showing each
Shareholder's address of record, number of Shares owned and whether such Shares
are represented by outstanding share certificates and (ii) all Shareholder
records, files, and other materials necessary or appropriate for proper
performance of the functions assumed by Forum under this Agreement (collectively
referred to as the "Materials"). The Trust shall on behalf of each applicable
Fund or Class indemnify and hold Forum harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to any error, omission, inaccuracy or other
deficiency of the Materials, or out of the failure of the Trust to provide any
portion of
the Materials or to provide any information in the Trust's possession or control
reasonably needed by Forum to perform the services described in this Agreement.
(b) Forum shall keep records relating to the services to be performed
under this Agreement, in the form and manner as it may deem advisable and as
required by applicable law. To the extent required by Section 31 of the 1940
Act, and the rules thereunder, Forum agrees that all such records prepared or
maintained by Forum relating to the services to be performed by Forum under this
Agreement are the property of the Trust and will be preserved, maintained and
made available in accordance with Section 31 of the 1940 Act and the rules
thereunder, and will be surrendered promptly to the Trust on and in accordance
with the Trust's request. The Trust and the Trust's authorized representatives
shall have access to Forum's records relating to the services to be performed
under this Agreement at all times during Forum's normal business hours. Upon the
reasonable request of the Trust, copies of any such records shall be provided
promptly by Forum to the Trust or the Trust's authorized representatives.
(c) Forum and the Trust agree that all books, records, information, and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
(d) In case of any requests or demands for the inspection of the
Shareholder records of the Trust, Forum will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. Forum shall abide by the Trust's instructions for granting or
denying the inspection; provided, however, that Forum may grant the inspection
without instructions if Forum is advised by counsel to Forum that failure to do
so will result in liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each Fund and Class
thereof in accordance with the Trust's then current prospectus only upon receipt
of (i) instructions requesting the issuance, (ii) a certified copy of a
resolution of the Board authorizing the issuance, (iii) necessary funds for the
payment of any original issue tax applicable to such Shares, and (iv) an opinion
of the Trust's counsel as to the legality and validity of the issuance, which
opinion may provide that it is contingent upon the filing by the Trust of an
appropriate notice with the SEC, as required by Section 24 of the 1940 Act or
the rules thereunder. If the opinion described in (iv) above is contingent upon
a filing under Section 24 of the 1940 Act, the Trust shall indemnify Forum for
any liability arising from the failure of the Trust to comply with that section
or the rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be registered
on the Shareholder records maintained by Forum. In registering transfers of
Shares, Forum may rely upon the Uniform Commercial Code as in effect in the
State of Delaware or any other statutes that, in the opinion of Forum's counsel,
protect Forum and the Trust from liability arising from (i) not requiring
complete documentation, (ii) registering a transfer without an adverse claim
inquiry, (iii) delaying registration for purposes of such inquiry or (iv)
refusing registration
whenever an adverse claim requires such refusal. As transfer agent, Forum will
be responsible for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) The Trust shall furnish to Forum a supply of blank share certificates
of each Fund and Class thereof and, from time to time, will renew such supply
upon Forum's request. Blank share certificates shall be signed manually or by
facsimile signatures of officers of the Trust authorized to sign by the Organic
Documents of the Trust and, if required by the Organic Documents, shall bear the
Trust's seal or a facsimile thereof. Unless otherwise directed by the Trust,
Forum may issue or register Share certificates reflecting the manual or
facsimile signature of an officer who has died, resigned or been removed by the
Trust.
(b) New Share certificates shall be issued by Forum upon surrender of
outstanding Share certificates in the form deemed by Forum to be properly
endorsed for transfer and satisfactory evidence of compliance with all
applicable laws relating to the payment or collection of taxes. Forum shall
forward Share certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means Forum deems equally reliable and expeditious. Forum
shall not mail Share certificates in "negotiable" form unless requested in
writing by the Trust and fully indemnified by the Trust to Forum's satisfaction.
(c) In the event that the Trust informs Forum that any Fund or Class
thereof does not issue share certificates, Forum shall not issue any such share
certificates and the provisions of this Agreement relating to share certificates
shall not be applicable with respect to those Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's or
Class' prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class, (B) a
check (other than a third party check) or a wire or other electronic
payment in the amount designated in the instruction and (C), in the case
of an initial purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time specified in
the prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds no later than
on the day indicated below unless other times are noted in the prospectus of the
applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the next Fund business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
Trust, on behalf of each Fund, agrees to pay Forum the fees set forth in Clauses
(i) and (ii) of Appendix B hereto. Fees will begin to accrue for each Fund on
the latter of the date of this Agreement or the date of commencement of
operations of the Fund. If fees begin to accrue in the middle of a month or if
this Agreement terminates before the end of any month, all fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement with respect to a
Fund, the Trust shall pay to Forum such compensation as shall be payable prior
to the effective date of termination. The Trust acknowledges that Forum may from
time to time earn money on amounts in the deposit accounts maintained by Forum
to service the Funds (and other clients serviced by Forum).
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in Appendix B hereto. In addition, the Trust, on behalf of
the applicable Fund, shall reimburse Forum for all reasonable incurred expenses
and employee time (at 150% of salary) attributable to any review of the Trust's
accounts and records by the Trust's independent accountants or any regulatory
body outside of routine and normal periodic reviews.
(c) All fees and reimbursements shall be payable monthly in advance on the
first day of each calendar month for services to be performed during the
following calendar month. The Trust, on behalf of the applicable Fund, agrees to
pay all fees and reimbursable expenses within five (5) business days following
receipt of the respective billing notice.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of Maine;
(iii) It is empowered under applicable laws and by its Operating Agreement
to enter into this Agreement and perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize it
to enter into this Agreement and perform its duties under this Agreement;
(v) It has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Forum, enforceable against Forum in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx xxx 0000
Xxx.
(x) The Trust represents and warrants to Forum that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of Maryland;
(ii) It is empowered under applicable laws and by its Organic Documents to
enter into this Agreement and perform its duties under this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize it
to enter into this Agreement and perform its duties under this Agreement;
(iv) It is an open-end management investment company registered under the
1940 Act;
(v) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(vi) A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate State securities law
filings have been made and will continue to be made, with respect to all
Shares of the Funds and Classes of the Trust being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) The Trust acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals maintained by Forum on databases under the control and ownership of
Forum or a third party constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of
substantial value to Forum or the third party. The Trust agrees to treat all
Proprietary Information as proprietary to Forum and further agrees that it shall
not divulge any Proprietary Information to any person or organization except as
may be provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum by the Trust or by a Shareholder in
connection with this Agreement (collectively, "Customer Data") constitute
proprietary information of substantial value to the Trust. In no event shall
Proprietary Information be deemed Customer Data. Forum agrees to treat all
Customer Data as proprietary to the Trust and further agrees that it shall not
divulge any Customer Data to any person or organization except as may be
provided under this Agreement or as may be directed by the Trust.
SECTION 10. INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as specifically
set forth herein or as may be specifically agreed to by Forum in writing. Forum
shall use its best judgment and efforts in rendering the services described in
this Agreement. Forum shall not be liable to the Trust or any of the Trust's
shareholders for any action or inaction of Forum relating to any event
whatsoever in the absence of bad faith, willful misfeasance or gross negligence
in the performance of Forum's duties or obligations under this Agreement or by
reason of Forum's reckless disregard of its duties and obligations under this
Agreement.
(b) Forum shall not be responsible for, and the Trust shall on behalf of
each applicable Fund or Class thereof indemnify and hold Forum, its employees,
directors, officers and managers and any person who controls Forum within the
meaning of section 15 of the Securities Act or section 20 of the 1934 Act
("Forum Indemnitees") harmless from and against, any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising out of or attributable to:
(i) all actions of Forum or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions (or omissions
to act) are taken in good faith and without gross negligence or reckless
disregard by Forum of its duties and obligations under this Agreement;
(ii) the Trust's lack of good faith or the Trust's gross negligence or
willful misconduct;
(iii) the reliance on or use by Forum or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Trust or any other person or firm on behalf
of the Trust, including but not limited to any previous transfer agent or
registrar;
(iv) the reasonable reliance on, or the carrying out by Forum or its
agents or subcontractors of, any instructions or requests of the Trust on
behalf of the applicable Fund; and
(v) the offer or sale of Shares in violation of any requirement under the
Federal securities laws or regulations or the securities laws or
regulations of any State that such Shares be registered in such State or
in violation of any stop order or other determination or ruling by any
federal agency or any State with respect to the offer or sale of such
Shares in such State.
(c) Forum shall indemnify and hold the Trust and each Fund or Class
thereof harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributed to any action or failure or omission to act by Forum as a result of
Forum's bad faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement.
(d) At any time Forum may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to Forum with
respect to any matter arising in connection with the services to be performed by
Forum under this Agreement, and, notwithstanding anything herein to the
contrary, Forum and any Forum Indemnitee shall not be liable and shall be
indemnified by the Trust on behalf of the applicable Fund for any action taken
or omitted by it in reasonable reliance upon such instructions or upon the
advice of such counsel. Forum, its agents and subcontractors shall be protected
and indemnified in acting upon (i) any paper or document furnished by or on
behalf of the Trust, reasonably believed by Forum to be genuine and to have been
signed by the proper person or persons, (ii) any instruction, information, data,
records or documents provided to Forum or its agents or subcontractors by (A)
electronic message, machine readable input, telex, CRT data entry or (B) other
similar means authorized by the Trust, and (iii) any authorization, instruction,
approval, item or set of data, or information of any kind transmitted to Forum
in person or by telephone, vocal telegram, electronic message or other
electronic means, reasonably believed by Forum to be genuine and to have been
given by the proper person or persons. Forum shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Trust. Forum, its agents and subcontractors shall also be protected and
indemnified in recognizing share certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the Trust, and
the proper countersignature of any former transfer agent or former registrar or
of a co-transfer agent or co-registrar of the Trust.
(e) If the Trust has the ability to originate electronic instructions to
Forum in order to (i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in such event Forum
shall be entitled to rely on the validity and authenticity of such instruction
without undertaking any further inquiry as long as such instruction is
undertaken in conformity with reasonable security procedures established by
Forum from time to time.
(f) The Trust has authorized or in the future may authorize Forum to act
as a "Mutual Fund Services Member" for the Trust or various Funds. Fund/SERV and
Networking are services sponsored by the National Securities Clearing
Corporation ("NSCC") and as used herein have the meanings as set forth in the
then current edition of NSCC RULES AND PROCEDURES published by NSCC or such
other similar publication as may exist from time to time. The Trust shall
indemnify and hold Forum harmless from and against any and all losses, damages,
costs,
charges, reasonable counsel fees, payments, expenses and liability arising
directly or indirectly out of or attributed to any action or failure or omission
to act by NSCC.
(g) In order that the indemnification provisions contained in this Section
shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim or to defend against
said claim in its own name or in the name of the other party. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) EFFECTIVENESS. This Agreement shall become effective as between Forum
and the Trust on the date first above written, and shall become effective with
respect to a Fund or a Class on the later of the date on which the Trust's
Registration Statement with respect to such Fund or Class becomes effective or
the date of the commencement of operations of the Fund or Class. Upon
effectiveness of this Agreement, it shall supersede all previous agreements
between the parties hereto covering the subject matter hereof insofar as such
Agreement may have been deemed to relate to the Trust or the Funds.
(b) DURATION. This Agreement shall continue in effect until terminated,
either in its entirety or with respect to a Fund, as applicable; PROVIDED,
HOWEVER, that its continuance shall be specifically approved or ratified with
such frequency and in the manner required by applicable law.
(c) TERMINATION. This Agreement shall continue in effect until terminated,
either in its entirety or with respect to a Fund, as applicable; PROVIDED,
HOWEVER, that its continuance shall be specifically approved or ratified with
such frequency and in the manner required by applicable law. This Agreement may
be terminated at any time, in its entirety or with respect to a Fund, without
the payment of any penalty:
(i) with or without cause, by either party on at least sixty [60] days'
written notice to the other party.
(ii) for cause, by the non breaching party on at least thirty (30) days'
written notice thereof to the other party, if the other party has
materially breached any of its obligations hereunder including, with
respect to Forum, the failure by Forum to act consistently with the
standard of care set forth in Section 10(a)(i); PROVIDED, HOWEVER, that
(A) the termination notice shall describe the breach, and (B) no such
termination shall be effective if, with respect to any breach that is
capable of being cured prior to the date set forth in the termination
notice, the breaching party has cured such breach to the reasonable
satisfaction of the non-breaching party.
(d) COOPERATION WITH SUCCESSORS; COSTS. Upon notice of termination of this
Agreement by either party, Forum shall promptly transfer to the successor
transfer agent the original or copies of all books and records maintained by
Forum under this Agreement including, in the case of records maintained on
computer systems, copies of such records in machine-readable form, and shall
cooperate with, and provide reasonable assistance to, the successor transfer
agent in the establishment of the books and records necessary to carry out the
successor transfer agent's responsibilities. Should the Trust exercise its right
to terminate this Agreement, the Trust shall reimburse Forum for Forum's costs
associated with the copying and movement of records and material to any
successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities ("termination costs"); PROVIDED, HOWEVER, that, notwithstanding
anything herein to the contrary, the Trust shall have no obligation to reimburse
Forum for such expenses and employee time if the Trust has terminated this
Agreement pursuant to clause (ii) of subsection (c) above. Forum and the Trust
agree that to cover termination costs, Forum shall receive an amount equal to
the average monthly fees and expenses paid to Forum under this Agreement for the
six full months preceding such termination.
(e) SURVIVAL. The provisions of Sections 7, 9 and 10 shall survive any
termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES. IN THE EVENT THAT THE TRUST
ESTABLISHES ONE OR MORE SERIES OF SHARES OR ONE OR MORE CLASSES OF SHARES AFTER
THE EFFECTIVENESS OF THIS AGREEMENT, SUCH SERIES OF SHARES OR CLASSES OF SHARES,
AS THE CASE MAY BE, SHALL BECOME FUNDS AND CLASSES UNDER THIS AGREEMENT. FORUM
OR THE TRUST MAY ELECT NOT TO MAKE AND SUCH SERIES OR CLASSES SUBJECT TO THIS
AGREEMENT.
SECTION 13. ASSIGNMENT. Except as otherwise provided in this Agreement,
neither this Agreement nor any rights or obligations under this Agreement may be
assigned by any party without the written consent of the other party. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns. Forum may, without further
consent on the part of the Trust, (i) assign this agreement to any affiliate of
Forum or (ii) subcontract for the performance hereof with any entity, including
an affiliate of Forum; PROVIDED HOWEVER, that Forum shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as
Forum is for its own acts and omissions.
SECTION 14. FORCE MAJEURE
FORUM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OR DELAY IN
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT ARISING OUT OF OR CAUSED,
DIRECTLY OR INDIRECTLY, BY CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL
INCLUDING, WITHOUT LIMITATION, ACTS OF CIVIL OR MILITARY AUTHORITY, NATIONAL
EMERGENCIES, LABOR DIFFICULTIES, FIRE, MECHANICAL BREAKDOWNS, FLOOD OR
CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOTS OR FAILURE OF THE MAILS OR
ANY TRANSPORTATION MEDIUM, COMMUNICATION SYSTEM OR POWER SUPPLY.
SECTION 15. LIMITATION OF SHAREHOLDER AND DIRECTOR LIABILITY
The Directors of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and Forum agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
Forum's rights or claims relate in settlement of such rights or claims, and not
to the Directors of the Trust or the shareholders of the Funds.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with the Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) Notwithstanding any other provisions hereof to the contrary, neither
party to this Agreement shall be liable to the other party for consequential
damages under any provision of this Agreement.
(b) Except for Appendix A, to add new Funds and Classes in accordance with
Section 12, no provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both Forum
and Trust and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable at law or
in equity for Forum's obligations under this Agreement.
(l) Each of the undersigned expressly warrants and represents that they
have full power and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party indicated to the terms
hereof and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
persons, as of the day and year first above written.
THE JAPAN FUND, INC.
By: /S/XXXX X. XXXXX
-------------------------
Xxxx X. Xxxxx
Vice President & Secretary
FORUM SHAREHOLDER SERVICES, LLC
By: /S/XXXX X. XXXXXXXX
-------------------------
Xxxx X. Xxxxxxxx
Director
THE JAPAN FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX A
FUNDS OF THE TRUST:
THE JAPAN FUND
CLASSES OF THE TRUST:
CLASS S
THE JAPAN FUND, INC.
By: /S/XXXX X. XXXXX
----------------
Xxxx X. Xxxxx
Vice President & Secretary
FORUM SHAREHOLDER SERVICES, LLC
By: /S/XXXX X. XXXXXXXX
----------------
Xxxx X. Xxxxxxxx
Director
THE JAPAN FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
Appendix B
Fees and Expenses
(I) BASE FEES
$1,800 per month per CUSIP (share class).
(II) ACCOUNT FEES
$1.50 per month per open direct shareholder account.
$1.25 per month per open NSCC Networked shareholder account.
$0.25 per month per closed shareholder account.
(III) INTERNET FEES
Client and Financial Intermediary Remote Inquiry provided at no cost.
Shareholder Remote Inquiry/Trading/Account Opening - $500 per Fund per month.
(IV) OUT-OF-POCKET EXPENSES
The Trust, on behalf of the applicable Fund, shall reimburse Forum for all
reasonable out-of-pocket or advances incurred in providing the services
described in this Agreement, including but not limited to the reasonable cost of
(or appropriate share of the cost of): (i) statement, confirmation, envelope and
stationary stock, (ii) share certificates, (iii) printing of checks and drafts,
(iv) postage, (v) telecommunications, (vi) NSCC Mutual Fund Service Member fees
and expenses, (vii) banking charges, (viii) outside proxy solicitors and
tabulators, (ix) proxy solicitation fees and (x) record storage, document
imaging, microfilm and microfiche. In addition, any other expenses incurred by
Forum at the request or with the consent of the Trust, will be reimbursed by the
Trust on behalf of the applicable Fund.
