DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT is made as of this 26 day of April, 2007, between The
Japan Fund, Inc. (the "FUND"), a Maryland corporation and Foreside Fund
Services, LLC, a Delaware limited liability company with its principal office
and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (the
"DISTRIBUTOR"). The effective date of this agreement will be October 1, 2007 or
such other date as is mutually agreed by the Fund and the Distributor.
WHEREAS, the Fund is registered as an open-end management 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");
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended; and
WHEREAS, the Board of Directors of the Fund (the "BOARD") has adopted a
Rule 12b-1 Distribution and Shareholder Servicing Plan (the "PLAN") pursuant to
Rule 12b-1 under the 1940 Act that, among other things, authorizes the Fund to
enter into this Agreement with Distributor, as principal underwriter of the
shares of the Fund, so that Distributor may provide distribution and shareholder
services (collectively, "SERVICES") for the benefit of the Fund and its
shareholders.
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 of the Fund (the "SHARES") 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 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. SHAREHOLDER SERVICING. The Distributor shall provide, or
shall arrange for the provision of, shareholder services and/or account
maintenance services to Fund shareholders who may from time to time directly or
indirectly beneficially own shares of the Fund. The Distributor will not be
obligated to provide services which are provided by a transfer agent for the
Fund.
ARTICLE 6. SERVICES. In fulfilling the Distributor's obligations under
Article 2 and Article 5 of this Agreement, it is contemplated that the Services
provided by the Distributor, whether provided directly by the Distributor or
through arrangement by the Distributor with a third party, may include, but
shall not necessarily be limited to:
(a) receiving, aggregating and processing purchase, exchange and
redemption orders of shareholders;
(b) communicating periodically with shareholders concerning
administrative issues relating to their accounts, and answering
questions and handling correspondence from shareholders about
their accounts;
(c) maintaining account records and providing beneficial owners with
account statements;
(d) processing dividend payments for Shares held beneficially;
(e) providing sub-accounting services for Shares held beneficially;
(f) disseminating tax information and issuing and mailing shareholder
reports, other Fund information, and transaction confirmations to
beneficial owners of Shares;
(g) forwarding shareholder communications to beneficial owners of
Shares;
(h) receiving, tabulating and transmitting proxies executed by
beneficial owners of Shares;
(i) general account administration activities, including crediting
distributions from the Fund to shareholder accounts and
determining amounts to be reinvested in the Fund;
(j) advertising, preparing sales literature and other promotional
materials, undertaking related printing and distribution services,
and, as necessary, making payments (including incentive
compensation) to third parties, including, wholesalers and
consultants, that provide distribution, marketing, advertising or
shareholder related services;
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(k) paying employees or agents of the Distributor, other securities
broker-dealers, sales personnel, or "associated persons" of the
Fund who engage in or support the provision of services to
investors and/or distribution of the Shares, including salary,
commissions, telephone, travel and related overhead expenses;
(l) training sales personnel regarding the Fund;
(m) preparing, printing and distributing prospectuses, statements of
additional information and reports to prospective investors;
(n) organizing and conducting sales seminars and meetings;
(o) paying fees to one or more sub-distributors in respect of the
average daily value of Shares beneficially owned by investors for
whom the sub-distributor is the dealer of record or holder of
record, or beneficially owned by shareholders with whom the
Distributor has a servicing relationship;
(p) incurring costs and expenses in implementing and operating the
Plan, including capital or other expenses of associated equipment,
rent, salaries, bonuses, interest, and other overhead or financing
charges; and
(q) providing such other administrative and personal services as may
be reasonably requested and which are deemed necessary and
beneficial to the holders of the Shares.
ARTICLE 7. REIMBURSEMENT FOR SERVICES. (a) The Fund shall, subject to
the terms of this Agreement, reimburse the Distributor on a monthly basis for
its expenses incurred in providing the Services under this Agreement. The
Distributor shall be entitled to no compensation from Fund for the services
provided by the Distributor pursuant to this Agreement.
(b) Regardless of the amount of expenses incurred by the Distributor,
the maximum annual amount of expenses reimbursable by the Fund pursuant to this
Agreement and the Plan shall not exceed the lesser of (i) the expenses incurred
by the Distributor for that period that would be reimbursable under the terms of
the Plan and this Agreement if this section 7(b) were not given effect and (ii)
the Maximum Reimbursable Amount. The term "MAXIMUM REIMBURSABLE AMOUNT" means:
0.15% of the Fund's average daily net assets on an annual basis or such other
amount as is agreed to from time to time by the Board and the Distributor
in accordance with this Agreement and subject to the Plan.
(c) At least a reasonable amount of time prior to the first quarterly
meeting of the Board following (i) approval of this Agreement by the Board, and
(ii) the end of each quarter of each fiscal year of the Fund in which this
Agreement is in effect (each such meeting described in clauses (i), and (ii), a
"BUDGET MEETING"), the Distributor shall submit to the Board a proposed budget
describing (as provided in section 7(d) hereof) the expenses that the
Distributor proposes to incur under this Agreement during the period of time
between (A) the Budget Meeting for which the proposed budget is being submitted
and (B) the next succeeding Budget Meeting (such period of time, a "BUDGET
PERIOD").
(d) Each proposed budget shall describe in detail the identity of the
recipient (if known) of any payments proposed to be made under this Agreement,
the purpose for which the expenses are proposed to be incurred, the
Distributor's estimated cost in providing the services to which the proposed
expenses relate, and such other information as the Board may reasonably request.
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(e) At the Budget Meeting for which a proposed budget is submitted, the
Board shall either (X) approve the proposed budget in whole or in part with such
modifications as the Board and the Distributor shall agree (any such proposed
budget as approved in whole or in part, an "APPROVED BUDGET") or (Y) disapprove
the proposed budget.
(f) During the period between (A) approval of this Agreement by the
Board and (B) the date the first Approved Budget is approved (the "INITIAL
PERIOD"), the Distributor shall incur under this Agreement only those expenses
that are reasonable and incurred in good faith. During any Budget Period for
which an Approved Budget is in effect, the Distributor shall incur expenses
under this Agreement only in accordance with such Approved Budget. During any
period for which an Approved Budget is not in effect (other than the Initial
Period), the Distributor shall incur expenses under this Agreement as if the
Approved Budget most recently in effect had been reapproved for such period. The
expenses (i) that the Distributor is permitted to incur under this section 7(f)
and (ii) that do not exceed either the Maximum Reimbursable Amount or the
maximum amount of expenses reimbursable under the Plan are referred to herein as
"ALLOWED EXPENSES."
(g) The Distributor shall be reimbursed (subject to sections 7(b) and
7(l) hereof) at the end of each month for the expenses it has incurred under
this Agreement during such month, PROVIDED that such reimbursements are subject
to repayment to the Fund in accordance with sections 7(h) and 7(i) hereof.
(h) At least a reasonable amount of time prior to each quarterly
meeting of the Board, the Distributor shall submit to the Board (and the Board
shall review) a written report (a "REPORT") of all expenses for which the
Distributor has been reimbursed under this Agreement since the immediately
preceding Report, if any, was submitted to the Board (such expenses with respect
to any Report, the "REIMBURSED EXPENSES"). Each Report shall include:
(i) such information as is necessary for the Board to determine
whether the Reimbursed Expenses are Allowed Expenses;
(ii) the identity of the recipient of any payment made by the
Distributor for which the Distributor was reimbursed;
(iii) the purpose for which the Reimbursed Expenses were incurred;
(iv) the Distributor's cost in providing the services to which the
Reimbursed Expenses relate; and
(v) such other information as the Board may reasonably request.
(i) At each quarterly meeting of the Board following the submission of
a Report, the Board shall review the Report and shall determine in good faith
whether the Reimbursed Expenses described in the Report are Allowed Expenses. A
decision by the Board that an expense is an Allowed Expense is binding and final
to the extent that the information provided about the expense by the Distributor
was accurate and complete. Any Reimbursed Expenses that
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the Board determines are not Allowed Expenses are referred to herein as
"DISALLOWED EXPENSES."
(j) When the Distributor submits a proposed budget to the Board, the
Distributor may condition the proposed budget on the Board's agreement that the
Chief Executive Officer of the Fund have the authority to approve expenses
during the relevant Budget Period that were not contemplated when the proposed
budget was submitted. To the extent the Board agrees to this condition, expenses
approved by the Chief Executive Officer shall be deemed to be Allowed Expenses
unless reimbursement of such expenses would cause the Fund to exceed the fee
limit under the 12b-1 Plan.
(k) Within 30 days of the date of the Board's determination that a
Reimbursed Expense is a Disallowed Expense, the Distributor shall repay the
Fund, without interest, the total amount of reimbursement payments it has
received from the Fund with respect to such Disallowed Expense; PROVIDED that
during such 30-day period, the Distributor may submit to the Chairman of the
Board such materials as the Distributor deems appropriate to demonstrate that
the Disallowed Expense was incorrectly determined by the Board to be a
Disallowed Expense. In the event of a submission to the Chairman, the Chairman
may either (i) refer to the full Board for consideration at the next meeting of
the Board the question of whether the Disallowed Expense was incorrectly
determined to be a Disallowed Expense or (ii) affirm the Board's determination
that the expense is a Disallowed Expense, in which case the Distributor shall
have 10 days from the date of the Chairman's affirmation to repay the Fund for
such expense. If the Chairman refers the question to the Board in accordance
with clause (i) of the preceding sentence, the Board, in its discretion, shall
either (X) deem the expense to be an Allowed Expense (and therefore not subject
to repayment by the Distributor), PROVIDED that the expense may be deemed an
Allowed Expense only if doing so would not cause either the Maximum Reimbursable
Amount or the maximum amount of expenses reimbursable under the Plan to be
exceeded; or (Y) affirm its earlier determination that the expense is a
Disallowed Expense, in which case the Distributor shall have 10 days from the
date of the Board's affirmation to repay the Fund for such expense.
(l) Any expense incurred by the Distributor that is not reimbursable
pursuant to this Article 7 at the time such expense is incurred (including
expenses not reimbursable due to the Maximum Reimbursable Amount limit or the
limitations imposed by the Plan) and any Disallowed Expense may not be carried
forward for future payment. All such expenses shall be the sole responsibility
of the Distributor. Nothing in this Agreement shall be construed to require the
Distributor to make an expenditure for which it cannot be reimbursed.
(m) Expenses shall be deemed incurred by the Distributor whether paid
directly by the Distributor or by a third party to the extent reimbursable by
the Distributor.
(n) For any expense incurred by the Distributor due to a payment to a
third party, the Distributor shall be reimbursed only to the extent of the
Distributor's payment to the third party.
ARTICLE 8. OTHER PAYMENTS. For providing the Services under this
Agreement, the Distributor shall also:
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(a) receive from the Fund all front-end sales charges, if any, on
purchases of Shares of the Fund 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
(b) receive from the Fund all contingent deferred sales charges
("CDSCS"), if any, 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.
ARTICLE 9. REALLOWANCE. The Distributor may reallow 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 10. INDEMNIFICATION OF 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, sales material 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.
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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 11. INDEMNIFICATION OF 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, sales
material 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
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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 12. 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 13. EFFECTIVE DATE AND TERM. This Agreement shall become
effective upon the later of (i) its approval by the Board in accordance with
Rule 12b-1 and its execution and (ii) the approval of the Plan by both the Board
and shareholders in accordance with Rule 12b-1. Unless terminated as provided,
this Agreement shall continue in force for one year from the date of its
execution and thereafter from year to year, PROVIDED that such annual
continuance is approved by a vote of the Board, and of the directors of the Fund
who are not interested persons of the Fund and have no direct or indirect
financial interest in the operation of the Plan or any agreements related to the
Plan ("QUALIFIED DIRECTORS"), cast in person at a meeting called for the purpose
of voting on the approval.
ARTICLE 14. TERMINATION. This Agreement shall automatically terminate
in the event of its assignment. 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 on sixty days' written notice to the other party.
ARTICLE 15. 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, c/o Xxxxx Xxxx & Xxxxxxxx, Counsel to The Japan Fund,
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn.: Xxxx X. Xxxxxx, Partner;
and if to the Distributor, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn: Chief
Compliance Officer
ARTICLE 16. LIMITATION OF LIABILITY. A copy of the charter of the Fund
is on file with the Secretary of State of the State of Maryland, and notice is
hereby given that this Agreement is executed on behalf of the Directors of the
Fund as Directors and not individually and that the obligations of this
instrument are not binding upon any of the Directors, officers or shareholders
of the Fund individually but binding only upon the assets and property of the
Fund.
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ARTICLE 17. 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.
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 18. 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 rules of the
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 U.S. 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 19. Proprietary Information of Distributor. The Fund
acknowledges that the databases, computer programs, screen formats, report
formats, interactive design techniques, and documentation manuals maintained by
Distributor on databases under the control and ownership of Distributor or a
third party constitute copyrighted, trade secret, or other proprietary
information (collectively, "PROPRIETARY INFORMATION") of substantial importance
to Distributor or the third party. The Fund agrees to treat all Proprietary
Information as proprietary to Distributor and further agrees that it shall
maintain as confidential any Proprietary Information, except as may be provided
under this Agreement, and that breach by the Fund of this confidentiality
obligation would cause irreparable injury to Distributor.
ARTICLE 20. Confidentiality. (a) Each of the Fund and the Distributor
(each a "Party") (for purposes of this Article 20, a "RECEIVING PARTY") agrees
to keep confidential all information disclosed by the other Party (for purposes
of this Article 20, a "DISCLOSING PARTY"), including, without limitation all
forms and types of financial, business, marketing, operations, technical,
economic and engineering information of the Disclosing Party, whether tangible
or intangible.
(b) Notwithstanding any provision of this Agreement to the contrary, the Parties
agree that the following information shall not be deemed confidential
information: (i) information that was known to the receiving Party before
receipt thereof from or on behalf of the Disclosing Party; (ii) information that
is disclosed to the Receiving Party by a third person who has a right to make
such disclosure without any obligation of confidentiality to the Party seeking
to enforce its rights under this Section 3; (iii) information that is or becomes
generally known in the trade without violation of this Agreement by the
Receiving Party; or (iv) information that is independently developed by the
Receiving Party or its employees or affiliates without reference to the
Disclosing Party's information.
(c) Notwithstanding any provision of this Agreement to the contrary, the
Distributor may: (i) provide information to the Distributor's counsel and to
Persons engaged by the Distributor or the
9
Fund to provide services with respect to the Fund; (ii) provide information
consistent with the procedures or with operating procedures that are customary
with respect to the services in the industry; (iii) identify the Fund as a
client of the Distributor for the Distributor's sales and marketing purposes;
and (iv) provide information as approved by an Authorized Person, provided, that
(A) such approval shall not be unreasonably withheld or delayed, and (B) the
Distributor may release information without approval of the Fund if the
Distributor is advised by counsel to the Distributor or the Fund that failure to
do so will result in liability to the Distributor; and provided, further, that,
in such event the Distributor shall endeavor promptly to advise the Fund of such
advice, to the extent practicable in advance of any actual release of
information.
(d) the Distributor acknowledges that certain Shareholder information made
available by the Fund to the Distributor or otherwise maintained by the
Distributor under this Agreement may be deemed nonpublic personal information
under the Xxxxx-Xxxxx-Xxxxxx Act and other applicable privacy Laws
(collectively, "PRIVACY LAWS"). The Distributor agrees (i) not to disclose or
use such information except as required to carry out its duties under the
Agreement or as otherwise permitted by law in the ordinary course of business;
(ii) to limit access to such information to authorized representatives of the
Distributor and the Fund; (iii) to establish and maintain reasonable physical,
electronic and procedural safeguards to protect such information; and (iv) to
cooperate with the Fund and provide reasonable assistance in ensuring compliance
with such Privacy Laws to the extent applicable to either or both of the
Parties.
ARTICLE 21. 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 22. 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 23. 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.
ARTICLE 24. MEANING OF CERTAIN TERMS. As used in this Agreement, the
terms "assignment," "interested person," and "the vote of a majority of the
outstanding voting securities" shall have the respective meanings specified in
the 1940 Act and the rules and regulations thereunder, subject to such
exemptions as may be granted by the Securities and Exchange Commission.
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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: /S/ XXXXXXX X. XXXXXX
----------------------
Attest:XXXXXXX X. XXXXXX, CHIEF EXECUTIVE OFFICER
------------------------------------------
FORESIDE FUND SERVICES, LLC
By: /S/ XXXXXXX X. XXXXXX
---------------------
Attest: XXXXXXX X. XXXXXX, VICE PRESIDENT
---------------------------------
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