Exhibit (k)
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
between
JAPAN OTC EQUITY FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 13th day of March , 1990 , by and between
JAPAN OTC EQUITY FUND, INC., a Maryland corporation, having its principal
office and place of business at 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000
(the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar,
transfer agent, dividend disbursing agent, custodian of certain retirement
plans and agent in connection with certain other activities and the Bank
desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Terms of Appointment; Duties of the Bank
Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Bank to act as, and the Bank agrees to
act as registrar, transfer agent for the Fund's authorized and issued shares
of its common stock ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any dividend
reinvestment plan as set out in the prospectus of the Fund, corresponding to
the date of this Agreement.
The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to
time by agreement between the Fund and the Bank, the Bank shall:
Issue and record the appropriate number of Shares as authorized and
hold such Shares in the appropriate Shareholder account;
Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate documentation;
Execute transactions directly with broker-dealers authorized by the
Fund who shall thereby be deemed to be acting on behalf of the Fund;
Prepare and transmit payments for dividends and distributions
declared by the Fund;
Act as agent for Shareholders pursuant to the dividend reinvestment
and cash purchase plan as amended from time to time in accordance with the
terms of the agreement to be entered into between the Shareholders and the
Bank in substantially the form attached as Exhibit A hereto;
Issue replacement certificates for those certificates alleged to have
been lost, stolen or destroyed upon receipt by the Bank of indemnification
satisfactory to the Bank and protecting the Bank and the Fund, and the Bank as
its option, may issue replacement certificates in place of mutilated stock
certificates upon presentation thereof and without such indemnity; and
Report abandoned property to the various states as authorized by the
Fund per policies and principals agreed upon by the Fund and the Bank.
In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: (i) perform all
of the customary services of a registrar, transfer agent, dividend disbursing
agent, custodian of certain retirement plans and agent of the dividend
reinvestment and cash purchase plan as described in Article 1 consistent with
those requirements in effect as at the date of this Agreement. The detailed
definition, frequency, limitations and associated costs (if any) set out in
the attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
receiving and tabulating proxies and mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts where applicable, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all registered Shareholders.
Fees and Expenses
For the performance by the Bank pursuant to this Agreement, the Fund
agrees to pay the Bank an annual maintenance fee as set out in the initial fee
schedule attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time subject
to mutual written agreement between the Fund and the Bank.
In addition to the fee paid under Section 2.01 above, the Fund agrees
to reimburse the Bank for out-of-pocket expenses or advances incurred by the
Bank for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by the Bank at the request or with the consent of
the Fund, will be reimbursed by the Fund.
The Fund agrees to pay all fees and reimbursable expenses within five
days following the receipt of the respective billing notice. Postage and the
cost of materials for mailing of dividends, proxies, Fund reports and other
mailings to all Shareholder accounts shall be advanced to the Bank by the Fund
at least seven (7) days prior to the mailing date of such materials.
Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that:
It is a corporation duly organized and existing and in good standing
under the laws of Maryland.
It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
All corporate proceedings required by said Articles of Incorporation
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
It is a closed-end, diversified investment company registered under
the Investment Company Act of 1940, as amended.
To the extent required by federal securities laws a registration
statement under the Securities Act of 1933, as amended is currently effective
and appropriate state securities law filings have been made with respect to
all Shares of the Fund being offered for sale; information to the contrary
will result in immediate notification to the Bank.
It shall make all required filings under federal and state securities
laws.
Indemnification
The Bank shall not be responsible for, and the Fund shall indemnify
and hold the Bank harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of
or attributable to:
All actions of the Bank or its agents or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are taken in
good faith and without negligence or willful misconduct.
The Fund's lack of good faith, negligence or willful misconduct which
arise out of the breach of any representation or warranty of the Fund
hereunder.
The reliance on or use by the Bank or its agents or subcontractors of
information, records and documents which (i) are received or relied upon by
the Bank or its agents or subcontractors and/or furnished to it or performed
by or on behalf of the Fund, and (ii) have been prepared, maintained and/or
performed by the Fund or any other person or firm on behalf of the Fund.
The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Fund.
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.
The Bank shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or failure or
omission to act by the Bank as a result of the Bank's lack of good faith,
negligence or willful misconduct.
At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by the Bank under this
Agreement, and the Bank and its agents or subcontractors shall not be liable
and shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Bank,
its agents and subcontractors shall be protected and indemnified in acting
upon any paper or document furnished by or on behalf of the Fund, reasonably
believed to be genuine and to have been signed by the proper person or
persons, or upon any instruction, information, data, records or documents
provided the Bank or its agents or subcontractors by telephone, in person,
machine readable input, telex, CRT data entry or other similar means
authorized by the Fund, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the
Fund. The Bank, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the Fund,
and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to
the other for any damages resulting from such failure to perform or otherwise
from such causes.
Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
In order that the indemnification provisions contained in this
Article 5 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. 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.
Covenants of the Fund and the Bank
The Fund shall promptly furnish to the Bank the following:
A certified copy of the resolution of the Board of Directors of the
Fund authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
A copy of the Articles of Incorporation and By-Laws of the Fund and
all amendments thereto.
The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the. Investment Company Act of 1940, as amended, and
the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
The Bank and the Fund 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.
In cases of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instruct ions from an authorized officer of the Fund as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be
held liable for the failure to exhibit the Shareholder records to such person.
Termination of Agreement
This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Fund. Additionally, the Bank reserves the right to charge for any other
reasonable expenses associated with such termination and/or a charge
equivalent to the average of three (3) month's fees.
Assignment
Except as provided in Section 3.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either 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.
The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered
as a transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(l)"), (ii) a BFDS subsidiary duly
registered as a transfer agent pursuant to Section 17A(c)(1) or (iii) a BFDS
affiliate; provided, however, that the Bank shall be as fully responsible to
the Fund for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
Amendment
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Board of Directors of the Fund.
Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Merger of Agreement
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
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 officers, as of the day and year first above written.
JAPAN OTC EQUITY FUND, INC.
BY:________________________
ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY:________________________________
Vice President
ATTEST:
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Assistant Secretary
