EX-99.B(9)
MASTER SERVICES AGREEMENT
THIS AGREEMENT is made as of the first day of January, 1994 by and
between FLAG INVESTORS EMERGING GROWTH 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.
(b) This Agreement shall be construed in accordance with the laws
of the State of Maryland.
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(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 EMERGING GROWTH FUND, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President & Secretary
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 EMERGING GROWTH 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 February 28, 1994 (the "Master Services
Agreement") between FLAG INVESTORS EMERGING GROWTH 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 of 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
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recordholder unless third party payment authorizations have been signed by the
recordholder and delivered to ICC.
(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.
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(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.
(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 EMERGING GROWTH 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 1, 1994 (the "Master Services Agreement")
between FLAG INVESTORS EMERGING GROWTH 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;
(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:
o Schedule of Investments;
o Statement of Net Assets and Liabilities;
o Statement of Operations;
o Statement of Changes in Net Assets;
o Cash Statement;
o Schedule of Capital Gains and Losses;
(r) Assist in the preparation of:
o Federal and State Tax Returns;
o Excise Tax Returns;
o Annual, Semi-Annual and Quarterly Shareholder Reports;
o Rules 24 (e)-2 and 24 (f)-2 Notices;
o Annual and Semi-Annual Reports on Form N-SAR;
o 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.
