THE JAPAN FUND, INC.
COMPLIANCE SERVICES AGREEMENT
AGREEMENT made as of the 26th day of April, 2007 by and among THE JAPAN FUND,
INC., a Maryland corporation, with its principal office and place of business at
c/o SEI, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, XX 00000 (the "Fund"), and FORESIDE
COMPLIANCE SERVICES, LLC ("FCS") and FORESIDE MANAGEMENT SERVICES, LLC ("FMC"),
each of which is a Delaware limited liability company with a principal office
and place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000
(collectively, "Foreside").
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue its shares of beneficial interest, of $0.001 per share (the
"Shares");
WHEREAS, the Fund desires to appoint a Chief Compliance Officer, in
accordance with Rule 38a-1 under the 1940 Act ("Rule 38a-1"); and
WHEREAS, the Fund desires that Foreside perform certain other
compliance services, including providing an Anti-Money Laundering Compliance
Officer and a Principal Financial Officer for each Fund and Foreside is willing
to provide those services on the terms and conditions set forth in this
Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Fund and Foreside hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Fund hereby retains FCS to facilitate the provision of
compliance services by the FCS employee designated on Appendix B hereto, whom
the Board of Directors of the Fund (the "Board") has duly appointed to serve as
the Fund's CCO, in accordance with Rule 38a-1, for the period and on the terms
and conditions set forth in this Agreement. In addition, FCS hereby agrees to
provide an Anti-Money Laundering Compliance Officer ("AMLCO") to initially serve
as Co-AML Officer and effective upon the termination of the Administration
Agreement with SEI Investments Mutual Funds Services ("SEI"), to serve as AMLCO,
and FMC agrees to provide a Principal Financial Officer ("PFO"), effective upon
the termination of the Administration Agreement with SEI, to be duly appointed
by the Fund for the period and on the terms and conditions set forth in this
Agreement.
(b) In connection therewith, the Fund has delivered to Foreside
copies of: (i) the Fund's Declaration of Fund and Bylaws (collectively, as
amended from time to time, "Organizational Documents"); (ii) the Fund's current
Registration Statement, as amended or supplemented, filed with the U.S.
Securities and Exchange Commission ("SEC") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), and the 1940 Act (the "Registration
Statement"); (iii) the Fund's current Prospectus and Statement of Additional
Information of the Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus" or "SAI", as the case may be, or the "Disclosure
Documents"); (iv) each plan of distribution or similar document adopted by the
Fund under Rule 12b-1 under the 1940 Act ("Plan") and each current shareholder
service plan or similar document adopted by the Fund ("Service Plan"); and (v)
all policies and procedures adopted by the Fund with respect to the Fund, and
shall promptly furnish Foreside with all amendments of or supplements to the
foregoing. The Fund shall deliver to Foreside a certified copy of resolutions of
the Board appointing the CCO, AMLCO and PFO and retaining Foreside hereunder and
authorizing the execution and delivery of this Agreement. In addition, the Fund
shall deliver, or cause to deliver, to Foreside upon Foreside's reasonable
request any other documents that would enable Foreside to perform the services
described in this Agreement.
SECTION 2. DUTIES OF THE CCO AND FORESIDE
(a) Subject to the approval of the Board, FCS shall make available
to act as the Fund's CCO an employee or agent of FCS who is qualified to be
responsible for administering the Fund's compliance program as provided in Rule
38a-1. Such employee or agent shall be competent and knowledgeable regarding the
federal securities laws and shall, in the exercise of his or her duties to the
Fund, act in good faith and in a manner reasonably believed by him or her to be
in the best interests of the Fund. FCS's responsibility for the activities of
the CCO are limited to the extent that the Board shall make all decisions
regarding the designation, termination and level of compensation of the CCO as
provided by Rule 38a-1. FCS shall oversee the activities of such employee as CCO
of the Fund and shall determine that such employee (A) is familiar with FCS's
operations regarding oversight of Funds' policies and procedures for compliance
programs under Rule 38a-1, (B) has ongoing access to FCS's offices and senior
employees regarding compliance issues, (C) is promptly made aware of any changes
to FCS's operations regarding oversight of Funds' policies and procedures for
compliance programs and (D) is qualified to service as a CCO as described under
Rule 38a-1.
(b) With respect to the Fund, the CCO shall:
(i) Report directly to the Board and respond to
compliance related inquiries and requests made by the Board;
(ii) Review the Fund's compliance program policies and
procedures including those policies and procedures of the
Fund's adviser, administrator, principal underwriter,
custodian, and transfer agent, as applicable, (collectively,
"Service Providers") that relate to the Fund;
(iii) Conduct periodic reviews of the Fund's compliance
program to incorporate any new or changed regulations, best
practice recommendations or other guidelines that may be
appropriate;
(iv) Review no less frequently than annually, the adequacy
of the policies and procedures of the Fund and its Service
Providers and the effectiveness of their implementation;
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(v) Apprise the Board of significant compliance events at
the Fund or its Service Providers;
(vi) Design testing methods for the Fund's compliance
program policies and procedures;
(vii) Perform and document periodic testing of certain key
control procedures (as appropriate to the circumstances),
including reviewing reports, investigating exceptions, and
making inquiries of Fund management and Service Providers;
(viii) Conduct periodic site visits of the Service
Providers, as necessary;
(ix) Deliver updates to the Fund or its Service Providers
and provide training, as necessary;
(x) Establish a quarterly reporting process to the Board,
including both written and oral reports. The CCO will attend
regularly scheduled Board meetings as well as special meetings
on an as-needed basis;
(xi) Prepare a written annual report for the Board and
attend Board meetings annually and as requested. Such report
shall, at a minimum, address: (A) the operation of the Fund's
and the Service Providers' policies and procedures since the
last report to the Board; (B) any material changes to such
policies and procedures since the last report; (C) any
recommendations for material changes to the policies and
procedures as a result of the periodic or annual reviews
referred to in Sections 2(b)(iii) and (iv) above; and (D) any
"material compliance matters" (as defined in Rule 38a-1) since
the date of the last report;
(xii) No less frequently than annually, meet separately
with the Directors of the Fund who are not "interested
persons" (as defined in the 0000 Xxx) of the Fund (the
"Independent Directors"); and
(xiii) Maintain the Fund's current policies and procedures
compliance manual.
(c) With respect to the Fund, FCS shall, subject to the approval
of the Board, make available a qualified person to act as the Fund's Anti-Money
Laundering Compliance Officer who is competent and knowledgeable regarding the
anti-money laundering rules and regulations applicable to mutual funds.
(d) With respect to the Fund, FMS shall, subject to the approval
of the Board, make available qualified persons who are competent and
knowledgeable regarding the management and internal controls of the Fund to
serve as the Fund's PFO, who will have the authority normally incident to such
office, including the authority to execute documents required to be executed by
the Fund's "principal financial officer" (PFO) in accordance with the Board's
authorization and the Fund's procedures.
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(e) Foreside shall provide such other services and assistance
relating to the affairs of the Fund as the Fund may, from time to time,
reasonably request pursuant to mutually acceptable compensation and
implementation agreements.
(f) Foreside shall maintain records relating to its services, such
as compliance policies and procedures, Board presentations, annual reviews, and
other records, as are required to be maintained under the 1940 Act and Rule
38a-1 thereunder. Such reports shall be maintained in the manner and for the
periods as are required under the applicable rule or regulation. The books and
records pertaining to the Fund that are in possession of Foreside shall be the
property of the Fund. The Fund, or the Fund's authorized representatives, shall
have access to such books and records at all times during Foreside's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided promptly by Foreside to the Fund or the
Fund's authorized representatives at the Fund's expense. In the event the Fund
designates a successor that shall assume any of Foreside's obligations
hereunder, Foreside shall, at its own cost and at the direction of the Fund,
transfer to such successor all relevant books, records and other data
established or maintained by Foreside under this Agreement. Such expenses shall
be subject to a maximum dollar amount as set forth in Appendix C.
(g) Nothing contained herein shall be construed to require
Foreside to perform any service that could cause Foreside to be deemed an
investment adviser for purposes of the 1940 Act or the Investment Advisers Act
of 1940, as amended, ("Advisers Act"), or that could cause a Fund to act in
contravention of the Fund's Disclosure Documents or any provision of applicable
law. Except with respect to Foreside's duties as set forth in this Section 2 and
except as otherwise specifically provided herein, the Fund assumes all
responsibility for ensuring that the Fund complies with all applicable
requirements of the Securities Act, the 1940 Act, the 1934 Act and any laws,
rules and regulations of governmental authorities with jurisdiction over the
Fund. All references to any law in this Agreement shall be deemed to include
reference to the applicable rules and regulations promulgated under authority of
the law and all official interpretations of such law or rules or regulations.
(h) In order for Foreside to perform the services required by this
Section 2, the Fund: (i) shall take reasonable steps to encourage the meaningful
and timely cooperation of all Service Providers to furnish any and all
information (including books and records of the Fund maintained by the Service
Providers) to Foreside as reasonably requested by Foreside, and assist Foreside
as may be required; and (ii) shall take reasonable steps to obtain the result
that Foreside has access to all relevant records and documents maintained by the
Fund or any Service Provider.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Foreside shall be under no duty to take any action except as
set forth in Section 2 hereof, as specifically set forth herein, or as may be
specifically agreed to by Foreside in writing. Foreside shall use its best
judgment and efforts in rendering the services described in this Agreement.
Foreside shall not be liable to the Fund or any of the Fund's shareholders for
any action or inaction of Foreside relating to any event whatsoever in the
absence of bad faith, willful misfeasance or negligence in the performance of
Foreside's duties or obligations under this Agreement or by reason of Foreside's
reckless disregard of its duties and obligations under this Agreement.
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(b) The Fund agrees to indemnify and hold harmless each of FCS and
FMS and their employees and agents, directors and officers, including without
limitation, the CCO, AMLCO and the PFO ("Foreside Indemnitees"), against and
from any and all claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, and reasonable counsel fees arising out of
Foreside's actions taken or failures to act with respect to a Fund that are
consistent with the standard of care set forth in Section 3(a) or based, if
applicable, on good faith reliance upon an item described in Section 3(d) (an
"Foreside Claim"), so long as such actions or inactions do not constitute a
breach of this Agreement or any representation or warranty contained herein. The
Fund shall not be required to indemnify any Foreside Indemnitee if the Foreside
Indemnitee does not give the Fund written notice of and reasonable opportunity
to defend against the Foreside Claim in its own name or in the name of the
Foreside Indemnitee.
(c) Foreside agrees to indemnify and hold harmless the Fund, its
employees, Directors and officers ("Fund Indemnitees"), against and from any and
all claims, demands, actions, suits, judgments, liabilities, losses, damages,
costs, charges, reasonable counsel fees and other expenses of every nature and
character arising out of: (i) Foreside's actions taken or failures to act with
respect to a Fund that are not consistent with the standard of care set forth in
Section 3(a) or based, if applicable, on good faith reliance upon an item
described in Section 3(d); (ii) any breach of Foreside's representation set
forth in Section 13 (a "Fund Claim"); (iii) any breach of this Agreement, or any
representation or warranty contained herein, by Foreside or (iv) Foreside's
violation of law. Foreside shall not be required to indemnify any Fund
Indemnitee if, prior to confessing any Fund Claim against the Fund Indemnitee,
the Fund or the Fund Indemnitee does not give Foreside written notice of and
reasonable opportunity to defend against the Fund Claim in its own name or in
the name of the Fund Indemnitee.
(d) A Foreside Indemnitee shall not be liable for any action taken
or failure to act in reasonable and good faith reliance upon, and in its
performance of its duties hereunder:
(i) the advice of the Fund, the Fund's outside counsel,
Independent Director counsel or the Fund's independent
accountants;
(ii) any oral instruction that it receives and that it
reasonably believes in good faith was transmitted by a person
or persons authorized by the Board to give such oral
instruction. Provided that Foreside has such reasonable belief
in good faith, Foreside shall have no duty or obligation to
make any inquiry or effort of certification of such oral
instruction;
(iii) any written instruction or certified copy of any
resolution of the Board, and Foreside may rely upon the
genuineness of any such document or copy thereof reasonably
believed in good faith by Foreside to have been validly
executed; or
(iv) as to genuineness, any signature, instruction,
request, letter of transmittal, certificate, opinion of
counsel, statement, instrument, report, notice, consent,
order, or other document reasonably believed in good faith by
Foreside to be genuine and to have been signed or presented by
or on behalf of the Fund;
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and no Foreside Indemnitee shall be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Foreside reasonably believes in good
faith to be genuine.
(e) Foreside shall not be liable for the errors of other Service
Providers or their systems, except to the extent such Service Provider is an
affiliate of Foreside.
(f) The Fund, and not Foreside, shall be solely responsible for
the designation and level of compensation of the Fund CCO, as well as for
removing the CCO from his or her responsibilities related to the Fund, in
accordance with Rule 38a-1. Therefore, notwithstanding the provisions of this
Section 3, the Fund shall supervise the activities of the Fund CCO with regard
to such activities.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) FCS and FMS each represents and warrants to the Fund that:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of
Delaware;
(ii) It is duly qualified to carry on its business in the
State of Maine;
(iii) It is empowered under applicable laws and by its
Operating Agreement to enter into this Agreement and perform
its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken
to authorize it to enter into this Agreement and perform its
duties under this Agreement;
(v) It has access to the necessary facilities, equipment,
and personnel to assist the CCO in the performance of his or
her duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of FCS and
FMS, enforceable against FCS and FMS in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties and will
not violate any agreement between FCS or FMS and any third
party;
(vii) The individuals designated on Appendix B hereto each
of whom is competent and knowledgeable regarding the federal
securities laws and is otherwise reasonably qualified to act
as a CCO, AMLCO and PFO, respectively, and who will, in the
exercise of his or her duties to the Fund, act in good faith
and in a manner reasonably believed by him or her to be in the
best interests of the Fund;
(viii) FCS shall compensate the CCO, AMLCO and PFO,
respectively, fairly, subject to the Board's right under any
applicable regulation (e.g., Rule 38a-1) to approve the
designation, termination and level of compensation of the CCO,
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AMLCO and PFO, respectively. In addition, FCS shall not
retaliate against the CCO, AMLCO or PFO should the CCO, AMLCO
or PFO inform the Board of a compliance failure or take
aggressive action to ensure compliance with the federal
securities laws by the Fund or a Service Provider;
(ix) FCS shall report to the Board promptly if Foreside
learns about CCO, AMLCO or PFO malfeasance or in the event the
CCO, AMLCO or PFO is terminated as a CCO, AMLCO or PFO by
another fund;
(x) FCS shall report to the Board if at any time the CCO,
AMLCO or PFO is subject to the "bad boy" disqualifications as
set forth in Section 15(b)(4) of the Exchange Act, or Section
9 of the 1940 Act; and
(xi) The various procedures and systems which Foreside has
implemented with regard to safekeeping from loss or damage
attributable to fire, theft or any other cause of the records
and other data of the Fund and Foreside's records, data,
equipment, facilities and other property used in the
performance of its obligations hereunder are adequate and
Foreside will make such changes therein from time to time as
are reasonably required for the performance of its obligations
hereunder.
(xii) The CCO, AMLCO and PFO, respectively, shall disclose
to and obtain Board approval of any compensation received in
any non-cash compensation program (i.e., stock option plans,
stock awards, stock purchase plans) or similar program related
to the Fund;
(xiii) The CCO, AMLCO, PFO and Foreside shall disclose to
the Fund any potential conflicts of interest that may arise
when the CCO, AMLCO, PFO or Foreside serves multiple clients;
(xiv) As an officer of the Fund, the CCO, AMLCO and PFO,
respectively, will be subject to the Fund's code of ethics and
must report to the Fund's code of ethics review officer or as
otherwise provided under the Fund's code of ethics; and
(xv) Foreside shall have adequate processes and procedures
to address all aspects of services it provides to the Fund.
(b) The Fund represents and warrants to FCS and FMS that:
(i) It is a corporation duly organized and existing and
in good standing under the laws of the State of Maryland;
(ii) It is empowered under applicable laws and by its
Organizational Documents to enter into this Agreement and
perform its duties under this Agreement;
(iii) All requisite corporate proceedings have been taken
to authorize it to enter into this Agreement and perform its
duties under this Agreement;
(iv) It is an open-end management investment company
registered under the 1940 Act;
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(v) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the Fund,
enforceable against the Fund in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and
remedies of creditors and secured parties;
(vi) The CCO, AMLCO and PFO shall be covered by the Fund's
Directors & Officers/Errors & Omissions Policy (the "Policy"),
and the Fund shall use commercially reasonable efforts to
ensure that the CCO's coverage be: (a) reinstated should the
Policy be cancelled or terminated; (b) continued after the CCO
ceases to serve as the Fund's CCO to the same extent that such
coverage is provided for the Fund's other officers after such
persons are no longer officers of the Fund; or (c) continued
in the event the Fund merges or terminates to the extent that
such coverage is provided for the Fund's other officers after
such merger or termination. The Fund shall provide Foreside
with proof of current coverage, including a copy of the
Policy, and shall notify Foreside immediately should the
Policy be cancelled or terminated; and
(viii) The CCO, AMLCO and PFO will each, upon commencement
of their respective officerships, be a named officer in
accordance with the Fund's by-laws and subject to the
provisions of the Fund's Organizational Documents regarding
indemnification of its officers.
SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the compliance services provided by
Foreside pursuant to this Agreement, the Fund shall pay Foreside the fees set
forth in Appendix C hereto pro rated for service during part of the year.
All fees payable hereunder shall be accrued daily by the Fund. The fees
listed in Appendix C hereto shall be payable monthly on the first business day
of each calendar month for services to be performed during the following
calendar month. If fees listed in Appendix C begin to accrue in the middle of a
month or if this Agreement terminates before the end of any month, all fees for
the period from that date to the end of that month or from the beginning of that
month to the date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this Agreement with
respect to a Fund, the Fund shall pay to Foreside such compensation as shall be
payable prior to the effective date of termination.
(b) In connection with the services provided by Foreside pursuant
to this Agreement, the Fund agrees to reimburse Foreside for any out of pocket
charges reasonably incurred and adequately documented as set forth on Appendix C
hereto. Reimbursements shall be payable as incurred. Should the Fund exercise
its right to terminate this Agreement, the Fund shall reimburse Foreside for all
reasonably incurred and adequately documented out-of-pocket expenses and
employee time associated with the copying and movement of records and material
to any successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities. Any such expenses and charges shall be subject to a maximum
dollar amount as set forth in Appendix C, and shall be documented fully in the
invoice submitted to the Fund for payment.
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(c) Foreside may, with respect to questions of law relating to its
services hereunder, apply to and obtain the advice of counsel to the Fund or
counsel to the Independent Directors; provided, however, that Foreside shall in
all cases first reasonably attempt to apply to and obtain the advice of in-house
counsel to Foreside, at no additional expense to the Fund. The costs of any such
advice of counsel to the Fund or counsel to the Independent Directors shall be
borne by the Fund.
(d) The Fund shall be responsible for and assumes the obligation
for payment of all of its expenses, including: (i) the fee payable under this
Agreement; (ii) the fees payable to the investment adviser under an agreement
between the investment adviser and the Fund; (iii) expenses of issue, repurchase
and redemption of Shares; (iv) interest charges, taxes and brokerage fees and
commissions and short sale fees; (v) premiums of insurance for the Fund, the
Directors, the CCO and other officers and fidelity bond premiums; (vi) fees,
interest charges and expenses of third parties, including the Fund's independent
accountants, custodians, transfer agents, dividend disbursing agents and fund
accountants; (vii) fees of pricing, interest, dividend, credit and other
reporting services; (viii) costs of membership in trade associations; (ix)
telecommunications expenses; (x) funds transmission expenses; (xi) auditing,
legal and compliance expenses; (xii) costs of forming the Fund and maintaining
its existence; (xiii) costs of preparing, filing and printing the Fund's
Prospectuses, subscription application forms and shareholder reports and other
communications and delivering them to existing shareholders, whether of record
or beneficial; (xiv) expenses of meetings of shareholders and proxy
solicitations therefor; (xv) costs of maintaining books of original entry for
portfolio and fund accounting and other required books and accounts, of
calculating the net asset value of Shares and of preparing tax returns; (xvi)
costs of reproduction, stationery, supplies and postage; (xvii) fees and
expenses of the Fund's Directors and officers; (xviii) costs of Board, Board
committee, and other corporate meetings; (xix) SEC registration fees and related
expenses; (xx) state, territory or foreign securities laws registration fees and
related expenses; and (xxi) all fees and expenses paid by the Fund in accordance
with any Plan or Service Plan or agreement related to similar matters.
(e) If the employment of the individual designated on Appendix B
hereto is terminated by FCS or FMC, the Fund may continue to retain the
individual as the Fund's CCO, AMLCO and/or PFO. In that case, Foreside may elect
to terminate this Agreement pursuant to Section 6(c).
SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective on the date first
written above. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund
until terminated and shall be renewed annually, the first renewal occurring no
later than April 26, 2008, provided that such renewal is approved by a majority
vote of the Board, including a majority of the Independent Directors.
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(c) This Agreement may be terminated at any time, without the
payment of any penalty: (i) by the Board on sixty (60) days' written notice to
Foreside; or (ii) by Foreside on sixty (60) days' written notice to the Fund;
provided, however, that the Board will have the right and authority to remove
the individual designated on Appendix B as the Fund's CCO, AMLCO and/or PFO at
any time, with or without cause, without payment of any penalty. In this case,
FCS will designate another employee of FCS, subject to approval of the Board and
the Independent Directors, to serve as temporary CCO, AMLCO and/or PFO until the
earlier of: (i) the designation of a new permanent CCO, AMLCO and/or PFO; or
(ii) the termination of this Agreement.
(d) Should the employment of an individual designated in Appendix
B be terminated by Foreside, the Board retains the right to remove the
individual as the Fund's CCO, AMLCO and/or PFO, as described in (c) above,
although the Board may exercise its right to retain the individual as CCO, AMLCO
and/or PFO. If the Board removes the individual as the Fund's CCO, AMLCO and/or
PFO, FCS or FMC will designate another employee of FCS or FMC, subject to
approval of the Board and the Independent Directors, to serve as temporary CCO,
AMCLCO and/or PFO until the earlier of: (i) the designation of a new permanent
CCO, AMLCO and/or PFO; or (ii) the termination of this Agreement. If the Board
retains the individual, Foreside agrees that it will continue to provide the
services described in Sections 2(c) through (f) of this Agreement until such
time as either party terminates the Agreement, in accordance with this Section
6.
(e) The provisions of Sections 2(d), 3, 5(b), 6(e), 6(f), 8, 9,
11, 13, 14(a) and 14(i) shall survive any termination of this Agreement.
(f) This Agreement and the rights and duties under this Agreement
otherwise shall not be assignable by either Foreside or the Fund except by the
specific written consent of the other party. If the parties to this Agreement
consent to assignment of all or any part of this Agreement, all terms and
provisions of this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto.
SECTION 7. INTENTIONALLY OMITTED
SECTION 8. CONFIDENTIALITY
Foreside agrees to treat all records and other information related to
the Fund as proprietary information of the Fund and, on behalf of itself and its
employees, to keep confidential all such information, except that Foreside may:
(a) release such other information as approved by the Fund, which
approval shall not be unreasonably withheld where Foreside is advised by counsel
that it may be exposed to civil or criminal contempt proceedings for failure to
release the information (provided, however, that Foreside shall seek the
approval of the Fund as promptly as possible so as to enable the Fund to pursue
such legal or other action as it may desire to prevent the release of such
information) or when so requested by the Fund; and
(b) Foreside shall abide by the Fund's privacy policy pursuant to
Regulation S-P promulgated under Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act.
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SECTION 9. FORCE MAJEURE
Foreside shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, strikes or other industrial action, fire, mechanical breakdowns,
flood or catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply; provided, however, that
Foreside shall have reasonable disaster recovery plans in place. In addition, to
the extent Foreside's obligations hereunder are to oversee or monitor the
activities of third parties, Foreside shall not be liable for any failure or
delay in the performance of Foreside's duties caused, directly or indirectly, by
the failure or delay of such third parties in performing their respective duties
or cooperating reasonably and in a timely manner with Foreside.
SECTION 10. ACTIVITIES OF FORESIDE
(a) Except to the extent necessary to perform Foreside's
obligations under this Agreement, nothing herein shall be deemed to limit or
restrict Foreside's right, or the right of any of Foreside's managers, officers
or employees who also may be a Director, officer or employee of the Fund
(including, without limitation, the CCO identified in Appendix B hereto), or
persons who are otherwise affiliated persons of the Fund to engage in any other
business or to devote time and attention to the management or other aspects of
any other business, whether of a similar or dissimilar nature, or to render
services of any kind to any other corporation, trust, firm, individual or
association.
(b) Subject to prior written approval of the Fund, Foreside may
subcontract any or all of its functions or responsibilities pursuant to this
Agreement to one or more persons, which may be affiliated persons of Foreside,
who agree to comply with the terms of this Agreement; provided, that any such
subcontracting shall not relieve Foreside of its responsibilities hereunder.
Foreside may pay those persons for their services, but no such payment will
increase Foreside's compensation or reimbursement of expenses from the Fund.
SECTION 11. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Foreside shall cooperate, if applicable, with each Fund's independent
public accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the accountants'
duties.
SECTION 12. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require
Foreside, in any capacity under this Agreement, to perform any functions or
duties on any day other than a business day of the Fund. Functions or duties
normally scheduled to be performed on any day which is not a business day of the
Fund shall be performed on, and as of, the next business day, unless otherwise
required by law.
SECTION 13. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Directors of the Fund and the shareholders of each Fund shall not
be liable for any obligations of the Fund under this Agreement, and Foreside
agrees that, in asserting any rights or claims under this Agreement, it shall
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look only to the assets and property of the Fund or the Fund to which Foreside's
rights or claims relate in settlement of such rights or claims, and not to the
Directors of the Fund or the shareholders of the Fund.
SECTION 14. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement.
(b) No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) This Agreement shall be governed by, and the provisions of
this Agreement shall be construed and interpreted under and in accordance with,
the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) 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. This Agreement shall be construed as if drafted jointly by both
Foreside and the Fund and no presumptions shall arise favoring any party by
virtue of authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by
the parties at their respective principal places of business set forth above, or
at such other address as a party may have designated in writing, shall be deemed
to have been properly given.
(i) Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each Fund of the Fund are
separate and distinct from the assets and liabilities of each other Fund and
that no Fund shall be liable or shall be charged for any debt, obligation or
liability of any other Fund, whether arising under this Agreement or otherwise.
(j) Each of the undersigned warrants and represents that they have
full power and authority to sign this Agreement on behalf of the party indicated
and that their signature will bind the party indicated to the terms hereof.
(k) The term "affiliated person" shall have the meanings ascribed
thereto in the 1940 Act.
(l) This Agreement may be assigned by Foreside with the Fund's
prior written consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
THE JAPAN FUND, INC.
By: /S/ XXXXXXX X. XXXXXX
---------------------
By: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
FORESIDE COMPLIANCE SERVICES, LLC
By: /S/ XXXXX X. XXXXXXX
--------------------
Xxxxx X. Xxxxxxx
Managing Partner
FORESIDE MANAGEMENT SERVICES, LLC
By: /S/ XXXXX X. XXXXXXX
--------------------
Xxxxx Xxxxxxx
Managing Partner
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THE JAPAN FUND, INC.
COMPLIANCE SERVICES AGREEMENT
APPENDIX A
AS OF APRIL 26, 2007
THE JAPAN FUND, INC.:
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XXX XXXXX FUND, INC.
COMPLIANCE SERVICES AGREEMENT
APPENDIX B
AS OF APRIL 26, 2007
FCS EMPLOYEE DESIGNATED AS THE FUND'S CCO:
The Fund's Board of Directors has designated Xxxxxxx Xxxx, Jr. as the
Fund's CCO, with effect from April 26, 2007.
FCS EMPLOYEE DESIGNATED AS THE FUND'S AMLCO:
The Fund's Board of Directors has designated Xxxxxxx Xxxxx as the
Fund's Co-AMLCO, with effect from April 26, 2007 and effective upon the
termination of the Administration Agreement with SEI Investments Mutual
Funds Services ("SEI"), which date shall be confirmed to FCS in writing
by the Fund, to be the AMLCO.
FCS EMPLOYEE DESIGNATED AS THE FUND'S PFO:
The Fund's Board of Directors has designated Xxxxx Xxxxxxx as the
Fund's PFO, effective upon the termination of the Administration
Agreement with SEI, which date shall be confirmed to FMS in writing by
the Fund.
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XXX XXXXX FUND, INC.
COMPLIANCE SERVICES AGREEMENT
APPENDIX C
AS OF APRIL 26, 2007
(1) COMPLIANCE SERVICES
Fees are as follows:
--------------------------------------------------------------------------------
Fees to FCS: Independent Compliance Officer fee $80,000
consisting of a flat fee per annum (to be
charged pro rata commencing April 26, 2007)
--------------------------------------------------------------------------------
Fees to FMS: PFO -Treasurer Services fee $60,000
consisting of a flat fee per annum (to be charged
pro rata commencing upon the termination of the
Administration Agreement with SEI Investments
Mutual Funds Services, which date shall be
confirmed to FMS by the Fund
--------------------------------------------------------------------------------
TOTAL FEES PER ANNUM $140,000
--------------------------------------------------------------------------------
(2) OUT-OF-POCKET AND RELATED EXPENSES
The Fund shall reimburse Foreside for the following out-of-pocket and ancillary
expenses:
(i) communications
(ii) postage and delivery services
(iii) record storage and retention (imaging, microfilm and
shareholder record storage)
(iv) reproduction
(v) reasonable travel expenses for the CCO, AMLCO and PFO
(including business-class level service for foreign travel)
incurred in connection with oversight of the compliance
programs of the Fund and the Service Providers
(vi) reasonable travel expenses (including business-class level
service for foreign travel) incurred in connection with travel
requested by the Board and agreed in advance
(vii) other expenses incurred in connection with providing the
services described in this Agreement if approved by the Fund's
CEO
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