EX-99.B(9)
MASTER SERVICES AGREEMENT
THIS AGREEMENT is made as of the 31st day of January, 1995 by and
between FLAG INVESTORS EQUITY PARTNERS FUND, INC., a Maryland corporation
(the "Fund"), and INVESTMENT COMPANY CAPITAL CORP., a Maryland corporation
("ICC").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain ICC to provide certain services
on behalf of the Fund, as set forth in the Appendices to this Agreement, and
ICC is willing so to serve.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. Appointment. The Fund hereby appoints ICC to perform such
services and to serve such functions on behalf of the Fund as set forth in
the Appendices to this Agreement, on the terms set forth in this Agreement
and the Appendices hereto. ICC accepts such appointment and agrees to
furnish such services and serve such functions. The Fund may have currently
outstanding one or more series or classes of its shares of common stock, par
value $.001 per share ("Shares") and may from time to time hereafter issue
separate series or classes of its Shares or classify and reclassify Shares of
any series or class, and the appointment effected hereby shall constitute
appointment for the provision of services with respect to all existing series
and classes and any additional series and classes unless the parties shall
otherwise agree in writing.
2. Delivery of Documents. The Fund has furnished ICC with copies
properly certified or authenticated of the following documents and will
furnish ICC from time to time with copies, properly certified or
authenticated, of all amendments of or supplements thereto, if any:
(a) Resolutions of the Fund's Board of Directors authorizing
the appointment of ICC to act in such capacities on behalf of the Fund as set
forth in the Appendices to this Agreement, and the entering into of this
Agreement by the Fund;
(b) The Fund's Articles of Incorporation and all amendments
thereto (the "Charter") and the Fund's By-Laws and all amendments thereto
(the "By-Laws");
(c) The Fund's most recent Registration Statement on Form N-
1A under the Securities Act of 1933, as amended (the "1933 Act") and under
the 1940 Act as filed with the Securities and Exchange Commission (the "SEC")
relating to the Shares; and
(d) Copies of the Fund's most recent prospectus or
prospectuses, including amendments and supplements thereto (collectively, the
"Prospectus").
3. Services to be Provided; Fees. During the term of this
Agreement, ICC shall perform the services and act in such capacities on
behalf of the Fund as set forth herein and in the Appendices to this
Agreement. For the services performed by ICC for the Fund, the Fund will
compensate ICC in such amounts as may be agreed to from time to time by the
parties in writing.
4. Records. The books and records pertaining to the Fund which
are in the possession of ICC shall be the property of the Fund. Such books
and records shall be prepared and maintained as required by the 1940 Act and
other applicable securities laws and rules and regulations. The Fund, or the
Fund's authorized representatives, shall have access to such books and
records at all times during ICC's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided
by ICC to the Fund or the Fund's authorized representative at the Fund's
expense.
5. Cooperation With Accountants. In addition to any obligations
set forth in an Appendix hereto, ICC shall cooperate with the Fund's
independent accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of such accountants' opinion of the Fund's financial statements or
otherwise, as such may be required by the Fund from time to time.
6. Compliance with Governmental Rules and Regulations. The Fund
assumes full responsibility for insuring that the Fund complies with all
applicable requirements of the 1933 Act, the Securities Exchange Act of 1934
(the "1934 Act"), the 1940 Act, and any laws, rules and regulations of
governmental authorities having jurisdiction. ICC undertakes to comply with
all applicable requirements of the 1933 Act, the 1934 Act, the 1940 Act, the
Commodities Exchange Act (if applicable), and all laws, rules and regulations
of governmental authorities having jurisdiction with respect to the
performance by ICC of its duties under this Agreement, including the
Appendices hereto.
7. Expenses.
(a) ICC shall bear all expenses of its employees and overhead
incurred in connection with its duties under this Agreement and shall pay all
salaries and fees of the Fund's directors and officers who are employees of
ICC.
(b) The Fund assumes and shall pay or cause to be paid all
other expenses of the Fund, including, without limitation: the fees of the
Fund's investment advisor, administrator and distributor; the charges and
expenses of any registrar, any custodian or depositary appointed by the Fund
for the safekeeping of its cash, portfolio securities and other property, and
any stock transfer, dividend or accounting agent or agents appointed by the
Fund; brokers' commissions chargeable to the Fund in connection with
portfolio securities transactions to which the Fund is a party; all taxes,
including securities issuance and transfer taxes, and corporate fees payable
by the Fund to federal, state or other governmental agencies; the cost and
expense of engraving or printing of stock certificates representing Shares;
all costs and expenses in connection with maintenance of registration of the
Fund and its Shares with the SEC and various states and other jurisdictions
(including filing fees and legal fees and disbursements of counsel); the
expenses of printing, including typesetting, and distributing prospectuses of
the Fund and supplements thereto to the Fund's shareholders; all expenses of
shareholders' and directors' meetings and of preparing, printing and mailing
of proxy statements and reports to shareholders; fees and travel expenses of
directors or members of any advisory board or committee other than such
directors or members who are "interested persons" of the Fund (as defined in
the 1940 Act); all expenses incident to the payment of any dividend,
distribution, withdrawal or redemption, whether in Shares or in cash; charges
and expenses of any outside service used for pricing of the Shares; charges
and expenses of legal counsel, including counsel to the directors of the Fund
who are not "interested persons" of the Fund (as defined in the 1940 Act),
and of independent accountants, in connection with any matter relating to the
Fund; a portion of membership dues of industry associations; interest payable
on Fund borrowings; postage; insurance premiums on property or personnel
(including officers and directors) of the Fund which inure to its benefit;
extraordinary expenses (including, but not limited to, legal claims and
liabilities and litigation costs and any indemnification related thereto);
and all other charges and costs of the Fund's operation unless otherwise
explicitly provided herein.
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8. Liability; Indemnification. Neither ICC nor any of its
officers, directors or employees shall be liable for any error of judgment or
for any loss suffered by the Fund in connection with the matters to which
this Agreement, including the Appendices hereto, relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on its or
their part in the performance of, or from reckless disregard by it or them
of, its or their obligations and duties under this Agreement. The Fund
agrees to indemnify and hold harmless ICC and its nominees from all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, liabilities arising under the 1933 Act, the 1934 Act, the 1940
Act, and any state and foreign securities and blue sky laws, all as currently
in existence or as amended from time to time) and expenses, including
(without limitation) attorneys' fees and disbursements, arising directly or
indirectly from any action or thing which ICC takes or does or omits to take
or do at the request or on the direction of or in reliance on the advice of
the Fund; provided, that neither ICC nor any of its nominees shall be
indemnified against any liability to the Fund or to its shareholders (or any
expenses incident to such liability) arising out of ICC's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties
and obligations under this Agreement. Notwithstanding anything else in this
Agreement or any Appendix hereto to the contrary, ICC shall have no liability
to the Fund for any consequential, special or indirect losses or damages
which the Fund may incur or suffer as a consequence of ICC's performance of
the services provided in this Agreement or any Appendix hereto.
9. Responsibility of ICC. ICC shall be under no duty to take any
action on behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by ICC in writing. In the performance of its
duties hereunder, ICC shall be obligated to exercise care and diligence and
to act in good faith and to use its best efforts within reasonable limits in
performing services provided for under this Agreement, but ICC shall not be
liable for any act or omission which does not constitute willful misfeasance,
bad faith or gross negligence on the part of ICC or reckless disregard by ICC
of its duties under this Agreement. Notwithstanding anything in this
Agreement to the contrary, ICC shall have no liability to the Fund for any
consequential, special or indirect losses or damages which the Fund may incur
or suffer by or as a consequence of ICC's performance of the services
provided hereunder.
10. Non-Exclusivity. The services of ICC to the Fund are not to
be deemed exclusive and ICC shall be free to render accounting or other
services to others (including other investment companies) and to engage in
other activities. It is understood and agreed that directors, officers or
employees of ICC may serve as directors or officers of the Fund, and that
directors or officers of the Fund may serve as directors, officers and
employees of ICC to the extent permitted by law; and that directors, officers
and employees of ICC are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as
partners, directors or officers of any other firm or corporation, including
other investment companies.
11. Notice. Any notice or other communication required to be
given pursuant to this Agreement shall be deemed duly given if delivered or
mailed by registered mail, postage prepaid, to the Fund at
, Attention: , or to ICC
at 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxxx
X. Xxxxxxxx.
00. Miscellaneous.
(a) This Agreement shall become effective as of the date
first above written and shall remain in force until terminated. This
Agreement, or any Appendix hereto, may be terminated at any time without the
payment of any penalty, by either party hereto on sixty (60) days' written
notice to the other party.
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(b) This Agreement shall be construed in accordance with the
laws of the State of Maryland.
(c) If any provisions of this Agreement shall be held or made
invalid in whole or in part, the other provisions of this Agreement shall
remain in force. Invalid provisions shall, in accordance with the intent and
purpose of this Agreement, be replaced by mutual consent of the parties with
such valid provisions which in their economic effect come as close as legally
possible to such invalid provisions.
(d) Except as otherwise specified in the Appendices hereto,
ICC shall be entitled to rely on any notice or communication believed by it
to be genuine and correct and to have been sent to it by or on behalf of the
Fund.
(e) ICC agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Fund and its
prior, present, or potential shareholders, except, after prior notification
to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where ICC may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested
to divulge such information by duly constituted authorities, or when so
requested by the Fund.
(f) Any part of this Agreement or any Appendix attached
hereto may be changed or waived only by an instrument in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: VP
INVESTMENT COMPANY CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: President
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Appendix I
TRANSFER AGENCY SERVICES APPENDIX
to
MASTER SERVICES AGREEMENT
between
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
and
INVESTMENT COMPANY CAPITAL CORP.
This Appendix is hereby incorporated into and made a part of the Master
Services Agreement dated as of January 31, 1995 (the "Master Services
Agreement") between FLAG INVESTORS EQUITY PARTNERS FUND, INC. and INVESTMENT
COMPANY CAPITAL CORP. Defined terms not otherwise defined herein shall have
the meaning set forth in the Master Services Agreement.
1. Definitions.
(a) "Authorized Person". The term "Authorized Person" shall mean
any officer of the Fund and any other person, who is fully authorized by the
Fund's Board of Directors, to give Oral and Written Instructions on behalf of
the Fund. Such persons are listed in the Certificate attached hereto.
(b) "Oral Instructions". The term "Oral Instructions" shall mean
oral instructions received by ICC from an Authorized Person or from a person
reasonably believed by ICC to be an Authorized Person.
(c) "Written Instructions". The term "Written Instructions" shall
mean written instructions signed by two Authorized Persons and received by
ICC. The instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. Instructions. Unless otherwise provided in this Appendix, ICC
shall act only upon Oral and Written Instructions. ICC shall be entitled to
rely upon any Oral and Written Instruction it receives from an Authorized
Person (or from a person reasonably believed by ICC to be an Authorized
Person) pursuant to this Agreement. ICC may assume that any Oral or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of the Fund's Articles of Incorporation, the Master Services
Agreement, or any Appendix attached thereto, or of any vote, resolution or
proceeding of the Fund's Board of Directors or shareholders.
The Fund agrees to forward to ICC Written Instructions confirming
Oral Instructions so that ICC receives the Written Instructions by the close
of business on the same day that such Oral Instructions are received. The
fact that such confirming Written Instructions are not received by ICC shall
in no way invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. The Fund further agrees that ICC shall
incur no liability to the Fund in acting upon Oral or Written Instructions
provided such instructions reasonably appear to have been received from an
Authorized Person.
If ICC is in doubt as to any action it should or should not take,
ICC may request directions or advice, including Oral or Written Instructions,
from the Fund. ICC shall be protected in any action it takes or does not
take in reliance upon directions, advice or Oral or Written Instructions it
receives from the Fund or from counsel and which ICC believes, in good faith,
to be consistent with those directions, advice or Oral or Written
Instructions. Notwithstanding the foregoing, ICC shall have no obligation
(i) to seek such directions, advice or Oral or Written Instructions, or (ii)
to act in accordance with such directions, advice or Oral or Written
Instructions unless, under the terms of other provisions of this Appendix,
the same is a condition of ICC's properly taking or not taking such action.
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3. Description of Services.
(a) General Services To be Provided. ICC shall provide to the
Fund the following services on an ongoing basis:
(i) Calculate 12b-1 payments;
(ii) Maintain proper shareholder registrations;
(iii) Review new applications and correspond with shareholders,
if necessary, to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction with
proxy solicitations; solicit and tabulate proxies;
receive and tabulate proxy cards for meetings of the
Fund's shareholders;
(vi) Countersign securities;
(vii) Direct shareholder confirmation of activity;
(viii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(ix) Mail duplicate confirmation to broker-dealers of their
clients' activity, whether executed through the broker-
dealer or directly with ICC;
(x) Provide periodic shareholder lists and statistics to the
Fund;
(xi) Provide detail for underwriter/broker confirmations;
(xii) Mail periodic year-end tax and statement information;
(xiii) Provide timely notification to investment advisor,
accounting agent, and custodian of Fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Purchase of Shares. ICC shall issue and credit an account of
an investor, in the manner described in the Prospectus, once it receives:
(i) a purchase order; (ii) proper information to establish a shareholder
account; and (iii) confirmation of receipt by, or crediting of funds for such
order to, the Fund's custodian.
(c) Redemption of Shares. ICC shall redeem the Fund's shares only
in accordance with the provisions of the Prospectus and each shareholder's
individual directions. Shares shall be redeemed at such time as the
shareholder tenders his or her shares and directs the method of redemption in
accordance with the terms set forth in the Prospectus. If securities are
received in proper form, Shares shall be redeemed before the funds are
provided to ICC. When the Fund provides ICC with funds, redemption proceeds
will be wired (if requested) or a redemption check issued. All redemption
checks shall be drawn to the recordholder unless third party payment
authorizations have been signed by the recordholder and delivered to ICC.
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(d) Dividends and Distributions. Upon receipt of certified
resolutions of the Fund's Board of Directors authorizing the declaration and
payment of dividends and distributions, ICC shall issue the dividends and
distributions in shares, or, upon shareholder election, pay such dividends
and distributions in cash. Such issuance or payment shall be made after
deduction and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules or regulations.
The Fund's shareholders shall receive tax forms and other information, or
permissible substitute notice, relating to dividends and distributions, paid
by the Fund as are required to be filed and mailed by applicable law, rule or
regulation. ICC shall maintain and file with the IRS and other appropriate
taxing authorities reports relating to all dividends and distributions paid
by the Fund to its shareholders as required by tax or other law, rule or
regulation.
(e) Shareholder Account Services. If authorized in the
Prospectus, ICC shall arrange for the following services, in accordance with
the applicable terms set forth in the Prospectus: (i) the issuance of Shares
obtained through any pre-authorized check plan and direct purchases through
broker wire orders, checks and applications; (ii) exchanges of shares of any
fund for Shares of the Fund with which the Fund has exchange privileges;
(iii) automatic redemption from an account where that shareholder
participates in an automatic redemption plan; and (iv) redemption of Shares
from an account with a check writing privilege.
(f) Communications to Shareholders. Upon timely Written
Instructions, ICC shall mail all communications by the Fund to its
shareholders, including, reports to shareholders, confirmations of purchases
and sales of Shares, monthly or quarterly statements, dividend and
distribution notices, and proxy material.
(g) Records. ICC shall maintain records of the accounts for each
shareholder showing the following information: (i) name, address and U.S.
Tax Identification or Social Security number; (ii) number and class of Shares
held and number and class of Shares for which certificates, if any, have been
issued, including certificate numbers and denominations; (iii) historical
information regarding the account of each shareholder, including dividends
and distributions paid and the date and price for all transactions on a
shareholder's account; (iv) any stop or restraining order placed against a
shareholder's account; (v) any correspondence relating to the current
maintenance of a shareholder's account; (vi) information with respect to
withholdings; and (vii) any information required in order for ICC to perform
any calculations contemplated or required by this Appendix or the Master
Services Agreement.
(h) Lost or Stolen Certificates. ICC shall place a stop notice
against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or alleged
misappropriation. A new certificate shall be registered and issued upon:
(i) the shareholder's pledge of a lost instrument bond or such other
appropriate indemnity bond issued by a surety company approved by ICC; and
(ii) completion of a release and indemnification agreement signed by the
shareholder to protect ICC.
(i) Shareholder Inspection of Stock Records. Upon requests from
Fund shareholders to inspect stock records, ICC will notify the Fund and the
Fund shall deliver Oral or Written Instructions granting or denying each such
request. Unless ICC has acted contrary to the Fund's Instructions, the Fund
agrees to release ICC from any liability for refusal or permission for a
particular shareholder to inspect the Fund's shareholder records.
(j) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, ICC shall cancel outstanding certificates
surrendered by the Fund to reduce the total amount of outstanding shares by
the number of shares surrendered by the Fund.
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(k) Telephone Transactions. In accordance with the terms of the
Prospectus, ICC shall act upon shareholder requests made by telephone for
redemption or exchange of ISI shares; provided that (i) the shareholder has
authorized telephone transactions on the Fund's Account Application or
otherwise in writing, (ii) if the request is a redemption, the amount to be
redeemed does not exceed $50,000 and (iii) ICC has complied with the
identification and other security procedures required by the Fund in
connection with telephone transactions.
4. Fees. As compensation for the services performed by ICC for the
Fund pursuant to this Appendix, the Fund will pay to ICC such amounts as may
be agreed to from time to time by the parties in writing.
5. Delegation of Responsibilities. ICC may subcontract to any third
party all or any part of its obligations under this Appendix; provided that
any such subcontracting shall not relieve ICC of any of its obligations under
this Appendix. All subcontractors shall be paid by ICC.
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Appendix II
ACCOUNTING SERVICES APPENDIX
to
MASTER SERVICES AGREEMENT
between
FLAG INVESTORS EQUITY PARTNERS FUND, INC.
and
INVESTMENT COMPANY CAPITAL CORP.
This Appendix is hereby incorporated into and made a part of the
Master Services Agreement dated as of January 31, 1995 (the "Master Services
Agreement") between FLAG INVESTORS EQUITY PARTNERS FUND, INC. and INVESTMENT
COMPANY CAPITAL CORP. Defined terms not otherwise defined herein shall have
the meaning set forth in the Master Services Agreement.
1. Accounting Services to be Provided. ICC will perform the following
accounting functions if required:
(a) Journalize investment, capital share and income and expense;
(b) Verify investment buy/sell trade tickets when received from
the Fund's investment advisor and transmit trades to the Fund's custodian for
proper settlement;
(c) Maintain individual ledgers for investment securities;
(d) Maintain tax lots for each security;
(e) Reconcile cash and investment balances with the custodian, and
provide the Fund's investment advisor with the beginning cash balance
available for investment purposes;
(f) Update the cash availability throughout the day as required by
the Fund's investment advisor;
(g) Post to and prepare the Fund's Statement of Net Assets and
Liabilities and the Statement of Operations;
(h) Calculate various contractual expenses (e.g., advisor and
custody fees);
(i) Monitor the expense accruals and notify Fund management of any
proposed adjustments;
(j) Control all disbursements from the Fund and authorize such
disbursements upon written instructions from the President or any other
officer of the Fund or the investment advisor;
(k) Calculate capital gains and losses;
(l) Determine the Fund's net income;
(m) Obtain security market quotes from independent pricing
services approved by the investment advisor, or if such quotes are
unavailable, then obtain such prices from the investment advisor, and in
either case calculate the market value of portfolio investments;
(n) Transmit or mail a copy of the daily portfolio valuation to
the Fund's investment advisor;
(o) Compute the Fund's net asset value;
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(p) As appropriate, compute the yields, total return, expense
ratios, portfolio turnover rate;
(q) Prepare a monthly financial statement, which will include the
following items:
. Schedule of Investments;
. Statement of Net Assets and Liabilities;
. Statement of Operations;
. Statement of Changes in Net Assets;
. Cash Statement;
. Schedule of Capital Gains and Losses;
(r) Assist in the preparation of:
. Federal and State Tax Returns;
. Excise Tax Returns;
. Annual, Semi-Annual and Quarterly Shareholder Reports;
. Rules 24(e)-2 and 24(f)-2 Notices;
. Annual and Semi-Annual Reports on Form N-SAR;
. Monthly and Quarterly Statistical Data Information
Reports Sent to Performance Tracking Companies;
(s) Assist in the Blue Sky and Federal registration and compliance
process;
(t) Assist in the review of registration statements; and
(u) Assist in monitoring compliance with Sub-Chapter M of the
Internal Revenue Code.
2. Records. ICC shall keep the following records: (a) all books and records
with respect to the Fund's books of account; and (b) records of the Fund's
securities transactions.
3. Liaison With Accountants. In addition to ICC's obligations relating to
the Fund's independent accountants set forth in the Master Services
Agreement, ICC shall act as liaison with the Fund's independent accountants
and shall provide account analyses, fiscal year summaries, and other audit
related schedules.
4. Compensation. For services performed by ICC pursuant to this Appendix,
the Fund will pay to ICC compensation for such services as the parties may
agree to from time to time in writing.
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