Exhibit 9(b)(1)
SHAREHOLDER SERVICE AGREEMENT
between
THE JAPAN FUND, INC.
and
XXXXXXX SERVICE CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE 1 Terms of Appointment; Duties of
Service ................................................... 1
ARTICLE 2 Fees and Expenses ......................................... 4
ARTICLE 3 Representations and Warranties of Service ................. 4
ARTICLE 4 Representations and Warranties of the Fund ................ 5
ARTICLE 5 Indemnification ........................................... 6
ARTICLE 6 Covenants of the Fund and Service ......................... 10
ARTICLE 7 Termination of Agreement .................................. 11
ARTICLE 8 Assignment ................................................ 12
ARTICLE 9 Amendment ................................................. 12
ARTICLE 10 Massachusetts Law to Apply ................................ 12
ARTICLE 11 Entire Agreement .......................................... 13
ARTICLE 12 Form N-SAR ................................................ 13
ARTICLE 13 Further Actions ........................................... 13
ARTICLE 14 Interpretive Provisions ................................... 13
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SHAREHOLDER SERVICE AGREEMENT
THIS AGREEMENT made as of this 14th day of AUGUST, 1987 by and between
XXXXXXX SERVICE CORPORATION, a Massachusetts Corporation ("Service") and THE
JAPAN FUND, INC., a Maryland corporation (the "Fund").
WITNESSETH:
WHEREAS, Service is engaged in the business of providing certain
recordkeeping, shareholder servicing and other services; and
WHEREAS, the Fund is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940, as amended; and
WHEREAS, Service is willing to provide to the Fund certain shareholder
servicing and other services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
Article 1. Terms of Appointment; Duties of Service
1.01 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints Service to act as, and Service agrees to act
as, shareholder servicing agent with respect to the authorized and issued shares
of common
stock of the Fund ("Shares") which are held in accounts (individually an
"Account" or collectively the "Accounts") for shareholders of the Fund (the
"Shareholders").
1.02 Service agrees that it will perform the following services in
accordance with procedures established from time to time by agreement between
the Fund and Service. Subject to such procedures, Service shall:
(i) respond to all telephone inquiries from Shareholders or
their authorized representatives regarding the status of Shareholder Accounts;
(ii) receive and record all telephone orders in appropriate form for
redemption or repurchase (including a redemption or repurchase and the
investment of the proceeds thereof in the shares of another investment company
advised by the Fund's investment adviser, which transaction is sometimes
referred to as an "exchange") of Shares from Shareholders or their authorized
representatives, and transmit such orders to the Fund's transfer agent on the
business day received;
(iii) respond to correspondence from Shareholders or their
authorized representatives regarding the status of Accounts or information
related to Accounts; provided, however, that Service shall not be responsible
for processing written orders to purchase, redeem or repurchase Shares, whether
or not in "good order" as defined in the Fund's registration statement as from
time to time in effect under the Securities Act of 1933, for the purchase or
redemption of Shares;
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(iv) perform Account maintenance updates, including minor
corrections and adjustments to Account information when requested by a
Shareholder or his authorized representative; provided, however, that the term
"Account maintenance updates" shall not include: (a) changing the number of
shares in an account, (b) changing the taxpayer identification number of the
Shareholder, except for obvious typographical or data entry errors, (c) changing
the Shareholder's name, or any portion of it, or address, except for obvious
typographical or data entry errors, (d) changing the bank account to which
redemption proceeds are to be wired in the case of telephone redemption, or (e)
changing any other information in the Account which cannot be changed in the
absence of a signature guarantee pursuant to the policies of the Fund as from
time to time in effect; and
(v) cooperate with the Fund's transfer agent for the purpose of
establishing and implementing procedures to ensure that the Fund's transfer
agency and shareholder relations functions are efficiently carried out.
Nothwithstanding anything to the contrary in this Agreement, Service shall not
be responsible for the performance of any duties which are required to be
performed by State Street Bank and Trust Company (the "Bank") pursuant to a
Transfer Agency and Service Agreement dated as of _______, 1987 between the Fund
and the Bank.
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Article 2 Fees and Expenses
2.01 For performance by Service of services pursuant to this Agreement,
the Fund agrees to pay Service an annual maintenance fee for each Account as set
out in the fee schedule attached hereto as Exhibit A. Such fee schedule and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time by mutual agreement between the Fund and Service, as
approved by a majority of the disinterested Trustees of the Fund.
2.02 In addition to the fee paid under Section 2.01 above, the Fund agrees
to reimburse Service for out-of-pocket expenses or advances incurred by Service
for the items set out in the fee schedule attached hereto as Exhibit A. In
addition, any other expenses incurred by Service, at the request or with the
consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses promptly.
Postage and the cost of materials for mailing shall be advanced to Service by
the Fund at least two (2) days prior to the mailing date of such materials or
paid within two (2) days of the receipt by the Fund of a xxxx therefor.
Article 3 Representations and Warranties of Service
Service represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of The Commonwealth of
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Massachusetts.
3.02 It has the legal power and authority to carry on its business in The
Commonwealth of Massachusetts.
3.03 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It is duly registered as transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended.
3.06 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to Service that:
4.01 It is a corporation duly organized and existing under the laws of
Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All proceedings required by said Articles of Incorporation and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an investment company registered under the Investment Company
Act of 1940, as amended (the "Act").
4.05 A majority of the Directors of the Fund who are not interested
persons have made findings to the effect that:
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(a) the services to be performed pursuant to the Agreement are
services required for the operation of the Fund;
(b) Service can provide services the nature and quality of which are
at least equal to those provided by others offering the same or similar
services; and
(c) the fees charged by Service for such services are fair and
reasonable in the light of the usual and customary charges made by others for
services of the same nature and quality.
4.06 A registration statement under the Securities Act of 1933, as
amended, has been filed and has become effective, and appropriate state
securities law filings have been made with respect to all Shares of the Fund
being offered for sale. The Fund shall notify Service if such registration
statement or any state securities registration or qualification has been
terminated or a stop order has been entered with respect to the Shares.
Article 5 Indemnification
5.01 Service shall not be responsible for, and the Fund shall indemnify
and hold Service harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of Service or its agents required to be taken
pursuant to this Agreement, provided that such actions are taken in good faith
and without negligence or willful misconduct.
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(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The reliance on or use by Service or its agents of information,
records and documents which (i) are received by Service or its agents and
furnished to it by or on behalf of the Fund, and (ii) have been prepared and/or
maintained by the Fund or any other person or firm (except Service) on behalf of
the Fund.
(d) The reliance on or the carrying out by Service or its agents of
any written instructions or requests of the Fund or any person acting on behalf
of the Fund.
(e) 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.
5.02 Service shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liabilities arising out of or attributable to Service's refusal or failure
to comply with the terms of this Agreement (whether as a result of the acts or
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omissions of Service or of its agents or subcontractors) or which arises out of
Service's or its agent's or subcontractor's lack of good faith, negligence or
willful misconduct or which arises out of the breach of any representation or
warranty of Service hereunder.
5.03 At any time Service may apply to any officer of the Fund for
instructions, and may consult with legal counsel (which may also be legal
counsel for the Fund) with respect to any matter arising in connection with the
services to be performed by Service under this Agreement, and Service 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.
Service and its agents 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 or records or documents provided Service or its
agents 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.
5.04 Service may at any time or times in its discretion appoint (and may
at any time remove) another individual, corporation, partnership, trust or
company as its agent to carry out such of the provisions of this Agreement as
Service shall from time to time direct.
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5.05 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 to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
5.06 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.
Article 6 Covenants of the Fund and Service
6.01 Service hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of records and for
the preparation or use, and for keeping account of, such records.
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6.02 Service shall at all times maintain insurance coverage which is
reasonable and customary in light of its duties hereunder and its other
obligations and activities and shall notify the Fund of any changes in its
insurance coverage.
6.03 Service 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 Act and the Rules thereunder, Service agrees that
all such records, and those records that the Fund and Service agree from time to
time to be the records of the Fund, will be preserved, maintained at the expense
of the Fund and made available in accordance with such Section and Rules and
this Agreement, and will be surrendered promptly to the Fund at its request.
Records surrendered hereunder shall be in machine readable form, except to the
extent that Service has maintained such a record only in paper form.
6.04 Service 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.
6.05 In case of any requests or demands for the inspection of the
records relating to Accounts with the Fund, Service will endeavor to notify
the Fund and to secure instructions from an authorized officer of the Fund as
to such inspection. Service
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reserves the right, however, to exhibit such records to any person whenever it
is advised by counsel to the Fund that it may be held liable for the failure to
exhibit such records to such person.
6.06 Service acknowledges that the Fund, as a registered investment
company under the Act, is subject to the provisions of the Act and the rules and
regulations thereunder, and that the offer and sale of the Fund's Shares are
subject to the provisions of federal and state laws and regulations applicable
to the offer and sale of securities. The Fund acknowledges that Service is not
responsible for the Fund's compliance with such laws, rules and regulations. If
the Fund advises Service that a procedure of Service related to the discharge of
its obligations hereunder has or may have the effect of causing the Fund to
violate any of such laws, rules or regulations, Service shall use its best
efforts to develop a mutually agreeable alternative procedure which does not
have such effect.
Article 7. Termination of Agreement
7.01 This Agreement may be terminated by the Fund on the last day of the
month next commencing after thirty (30) days written notice to Service. This
agreement may be terminated by Service upon one hundred twenty (120) days
written notice to the Fund.
7.02 Upon termination of this Agreement, the Fund shall pay to Service
such fees and expenses as may be due as of the date of such termination.
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7.03 Should the Fund exercise its right to terminate this Agreement, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund. Additionally, Service reserves the right to charge for any
other reasonable expenses associated with such termination.
Article 8. Assignment
8.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
Article 9. Amendment
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 10. Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 11. Entire Agreement
11.01 This Agreement constitutes the entire agreement between the
parties hereto.
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Article 12. Form N-SAR
12.01 Service shall maintain such records as shall enable the Fund to
fulfill the requirements of Form N-SAR.
Article 13. Further Actions
13.01 Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
Article 14. Interpretive Provisions
14.01 In connection with the operation of this Agreement, Service and the
Fund may agree from time to time on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions are to be signed by the parties and annexed hereto, but no
such provision shall contravene any applicable federal or state law or
regulation and no such interpretive or additional provision shall be deemed to
be an amendment of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
XXXXXXX SERVICE CORPORATION
By: /s/ Xxxxx X. Xxx
-------------------------------
Title: President & Director
THE JAPAN FUND, INC.
By: /s/ [Illegible]
-------------------------------
Title: President
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