AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 28th day of July, 2004 between The
Japan Fund, Inc. (the "Fund"), a Maryland corporation and SEI Investments
Distribution Co. (the "Distributor"), a Pennsylvania corporation.
WHEREAS, the Fund is registered as an investment company with the
Securities and Exchange Commission (the "SEC") under the Investment Company Act
of 1940, as amended (the "1940 Act"), and its shares are registered with the SEC
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Distributor hereby agree as follows:
ARTICLE 1. SALE OF SHARES. The Fund grants to the Distributor the
exclusive right to sell shares (the "Shares") of the portfolios (the
"Portfolios") of the Fund at the net asset value per Share, plus any applicable
sales charges in accordance with the current prospectus, as agent and on behalf
of the Fund, during the term of this Agreement and subject to the registration
requirements of the 1933 Act, the rules and regulations of the SEC and the laws
governing the sale of securities in the various states ("Blue Sky Laws").
ARTICLE 2. SOLICITATION OF SALES. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable efforts
in connection with the distribution of Shares of the Fund; provided, however,
that the Distributor shall not be prevented from entering into like arrangements
with other issuers. The provisions of this paragraph do not obligate the
Distributor to register as a broker or dealer under the Blue Sky Laws of any
jurisdiction when it determines it would be uneconomical for it to do so or to
maintain its registration in any jurisdiction in which it is now registered or
obligate the Distributor to sell any particular number of Shares.
ARTICLE 3. AUTHORIZED REPRESENTATIONS. The Distributor is not
authorized by the Fund to give any information or to make any representations
other than those contained in the current registration statements and
prospectuses of the Fund filed with the SEC or contained in shareholder reports
or other material that may be prepared by or on behalf of the Fund for the
Distributor's use. The Distributor may prepare and distribute sales literature
and other material as it may deem appropriate, provided that such literature and
materials have been prepared in accordance with applicable rules and
regulations.
ARTICLE 4. REGISTRATION OF SHARES. The Fund agrees that it will take
all action necessary to register Shares under the federal and state securities
laws so that there will be available for sale the number of Shares the
Distributor may reasonably be expected to sell and to pay all fees associated
with said registration. The Fund shall make available to the Distributor such
number of copies of its
currently effective prospectus and statement of additional information as the
Distributor may reasonably request. The Fund shall furnish to the Distributor
copies of all information, financial statements and other papers which the
Distributor may reasonably request for use in connection with the distribution
of Shares of the Fund.
ARTICLE 5. COMPENSATION. As compensation for providing the services\
under this Agreement:
(a) The Distributor shall receive from the Fund:
(1) all distribution and service fees, as applicable, at the
rate and under the terms and conditions set forth in each
distribution and/or shareholder services plan applicable to
the appropriate class of shares of each Portfolio, as such
plans may be adopted or amended from time to time, and subject
to any further limitations on such fees as the Board of
Directors of the Fund may impose;
(2) all front-end sales charges, if any, on purchases of
Shares of each Portfolio sold subject to such charges as
described in the Fund's registration statement and current
prospectuses, as amended from time to time. The Distributor,
or brokers, dealers and other financial institutions and
intermediaries that have entered into sub-distribution
agreements with the Distributor, may collect the gross
proceeds derived from the sale of such Shares, remit the net
asset value thereof to the Fund upon receipt of the proceeds
and retain the applicable sales charge; and
(3) all contingent deferred sales charges ("CDSCs") applied on
redemptions of Shares subject to such charges on the terms and
subject to such waivers as are described in the Fund's
registration statement and current prospectuses, as amended
from time to time, or as otherwise required pursuant to
applicable law.
(b) The Distributor may re-allow any or all of the distribution or
service fees, front-end sales charges and contingent deferred sales
charges which it is paid by the Fund to such brokers, dealers and other
financial institutions and intermediaries as the Distributor may from
time to time determine.
ARTICLE 6. INDEMNIFICATION OF THE DISTRIBUTOR. The Fund agrees to
indemnify and hold harmless the Distributor and each of its directors and
officers and each person, if any, who controls the Distributor within the
meaning of Section 15 of the 1933 Act against any loss, liability, claim,
damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages, or expense and reasonable counsel
fees and disbursements incurred in connection therewith), arising by reason of
any person acquiring any Shares, based upon the ground that the registration
statement, prospectus, shareholder reports or other information filed or made
public by the Fund (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements made not misleading. However, the Fund
does not agree to indemnify the Distributor or hold it harmless to the extent
that the statements or omission was made in reliance upon, and in conformity
with, information furnished to the Fund by or on behalf of the Distributor.
In no case (i) is the indemnity of the Fund to be deemed to protect the
Distributor against any liability to the Fund or its shareholders to which the
Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Fund to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Fund of any claim shall not relieve the Fund from any liability which
it may have to the Distributor or any person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph.
The Fund shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Fund elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Fund and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Fund
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Fund does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Fund agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or Directors
in connection with the issuance or sale of any of its Shares.
ARTICLE 7. INDEMNIFICATION OF THE FUND. The Distributor covenants and
agrees that it will indemnify and hold harmless the Fund and each of its
Directors and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and reasonable counsel
fees incurred in connection therewith) based upon the 1933 Act or any other
statute or common law and arising by reason of any person acquiring any Shares,
and alleging a wrongful act of the Distributor or any of its employees or
alleging that the registration statement, prospectus, shareholder reports or
other information filed or made public by the Fund (as from time to time
amended) included an untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make the statements
not misleading, insofar as the statement or omission was made in reliance upon
and in conformity with information furnished to the Fund by or on behalf of the
Distributor.
In no case (i) is the indemnity of the Distributor in favor of the Fund
or any other person indemnified to be deemed to protect the Fund or any other
person against any liability to which the Fund or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or upon any person (or after the
Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Fund or any
person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants whose approval shall not be unreasonably withheld.
In the event that the Distributor elects to assume the defense of any suit and
retain counsel, the defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Fund promptly of the commencement
of any litigation or proceedings against it or any of its officers in connection
with the issue and sale of any of the Fund's Shares.
ARTICLE 8. ANTI-MONEY LAUNDERING. The Distributor represents that it is
in compliance and will continue to be in compliance with all applicable
anti-money laundering laws and regulations, including the Bank Secrecy Act
("BSA") and applicable guidance issued by the SEC and the guidance and rules of
National Association of Securities Dealers, Inc. (the "NASD").
The Distributor represents that it has in place an anti-money
laundering program that complies with the law in jurisdictions in which Shares
are distributed, including applicable provisions of the BSA, the USA Patriot Act
of 2001 and programs administered by the U.S. Department of the Treasury's
Office of Foreign Assets Control.
ARTICLE 9. CONSEQUENTIAL DAMAGES. In no event and under no
circumstances shall either party to this Agreement be liable to anyone,
including, without limitation, the other party, for consequential damages for
any act or failure to act under any provision of this Agreement.
ARTICLE 10. EFFECTIVE DATE. This Agreement shall be effective upon its
execution, and, unless terminated as provided, shall continue in force for two
years from the effective date and thereafter from year to year, provided that
such annual continuance is approved by (i) either the vote of a majority of the
Directors of the Fund, or the vote of a majority of the outstanding voting
securities of the Fund, and (ii) the vote of a majority of those Directors of
the Fund who are not parties to this Agreement or the Fund's distribution plan
or interested persons of any such party ("Qualified Directors"), cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities,"
"assignment" and
"interested person" shall have the respective meanings specified in the 1940
Act. In addition, this Agreement may at any time be terminated without penalty
by the Distributor, by a vote of a majority of Qualified Directors or by vote of
a majority of the outstanding voting securities of the Fund upon not less than
sixty days prior written notice to the other party.
ARTICLE 11. NOTICES. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Fund, at The Japan Fund, Inc., x/x Xxxxx, Xxxx & Xxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 00000, Attn.: Xxxx Xxxxxx, and if to the
Distributor, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000.
ARTICLE 12. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes
the entire agreement between the parties hereto and supersedes any prior
agreement, draft or agreement or proposal with respect to the subject matter
hereof. This Agreement or any part hereof may be changed or waived only by an
instrument in writing signed by the party against which enforcement of such
change or waiver is sought.
ARTICLE 13. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
ARTICLE 14. MULTIPLE ORIGINALS. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 15. SEVERABILITY. 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.
IN WITNESS WHEREOF, the Fund and Distributor have each duly executed
this Agreement, as of the day and year above written.
THE JAPAN FUND, INC.
By: _____________________
Name: XXXXXXX X. XXXXXXX, XX.
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Title: VICE PRES. & ASST. SECRETARY
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SEI INVESTMENTS DISTRIBUTION CO.
By: _____________________
Name: XXXX X. XXXXX
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Title: VICE PRES. & SECRETARY
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