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Exhibit 2(d)6
STATE STREET BANK AND TRUST COMPANY
SUBSCRIPTION DISTRIBUTION AND ESCROW AGENCY AGREEMENT
This Subscription, Distribution and Escrow Agency Agreement (the
"Agreement") is made as of November , 1996 between Fidelity Advisor Korea
Fund, Inc. (the "Fund"), a Maryland corporation and State Street Bank and Trust
Company, a Massachusetts Trust Company, as subscription, distribution and escrow
agent (the "Agent").
WHEREAS, the Fund proposes to make a subscription offer by issuing
certificates or other evidence of subscription rights, in the form designated by
the Fund ("Subscription Certificates") to shareholders of record ("Record Date
Shareholders") of its Common Stock as of a record date specified by the Fund
(the "Record Date"), pursuant to which each Record Date Shareholder will have
certain non-transferable rights (the "Rights") to subscribe to shares of the
Fund's Common Stock, par value $.001 ("Common Stock"), as described in and upon
such terms as are set forth in the prospectus (the "Prospectus") included in the
Form N-2 Registration Statement filed by the Fund with the Securities and
Exchange Commission on November , as amended by any amendment filed with
respect thereto (the "Registration Statement");
WHEREAS, the Fund wishes the Agent to perform certain acts on behalf of
the Fund and the Agent is willing to so act, in connection with the distribution
of the Subscription Certificates and the issuance and exercise of the Rights to
subscribe therein set forth, all upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Pursuant to the resolutions of its Board of Directors, the Fund hereby
appoints and authorizes the Agent to act on its behalf in accordance
with the provisions hereof, and the Agent hereby accepts such
appointment and agrees to so act.
2. (a) Each Subscription Certificate shall evidence the Rights of the
Record Date Shareholder therein named to purchase Common Stock
upon the terms and conditions therein and herein set forth.
(b) Upon the written advice of the Fund signed by its Senior Vice
President, Treasurer, Secretary or Assistant Secretary, as to
the Record Date, the Agent shall, from a list of the Fund's
Shareholders as of the Record Date, prepare and record
Subscription Certificates in the names of the Record Date
Shareholders, setting forth the number of Rights to subscribe
for shares of the Fund's Common Stock, par value $0.001 per
share, calculated on the basis of right(s) for each share
recorded on the Fund's books in the name of each such Record
Date Shareholder as of the Record Date. Each Subscription
Certificate shall be dated as of the Record Date and shall be
executed manually or by facsimile signature of a duly
authorized Officer of the Fund. Upon the written advice,
signed as aforesaid, as to the effective date of the
Registration Statement, the Agent shall as promptly as
practicable countersign and deliver the Subscription
Certificates, together with a copy of the Prospectus, to all
Record Date Shareholders. No Subscription Certificate shall be
valid for any purpose unless so executed. Should any Officer
whose signature has been placed upon any Subscription
Certificate cease to
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hold such office at any time thereafter, such event shall have
no effect on the validity of such Subscription Certificate.
3. (a) Each Subscription Certificate shall be irrevocable and
non-transferable. The Agent shall maintain a register of
Subscription Certificates and the holders of record thereof
(each of whom shall be deemed a "Record Date Shareholder"
hereunder for purposes of determining the rights of holders of
Subscription Certificates). Each Subscription Certificate
shall, subject to the provisions thereof, entitle the Record
Date Shareholder in whose name it is recorded to the
following:
(1) The right (the "Basic Subscription Right") to
purchase a number of shares of Common Stock equal to
____ share(s) of Common Stock for every ___
Subscription Rights; provided, however, that no
factional shares of Common Stock shall be issued; and
(2) The right (the "Oversubscription Right") to purchase
from the Fund additional shares of Common Stock,
subject to the availability of such shares and to
allotment of such shares as may be available among
Record Date Shareholders who exercise
Oversubscription Rights on the basis specified in the
Prospectus; provided, however, that a Record Date
Shareholder who has not exercised his Basic
Subscription Rights with respect to the full number
of shares that such Record Date Shareholder is
entitled to purchase by virtue of his Basic
Subscription Rights as of the Expiration Date, if
any, shall not be entitled to any Oversubscription
Rights.
(b) A Record Date Shareholder may exercise his Basic Subscription
Rights and Oversubscription Rights by delivery to the Agent at
its corporate office specified in the Prospectus of (i) the
Subscription Certificate with respect thereto, duly executed
by such Record Date Shareholder in accordance with and as
provided by the terms and conditions of the Subscription
Certificate, together with (ii) the purchase price of each
share of Common Stock subscribed for by exercise of such
Rights, in United States dollars in cash, by check, or bank
draft drawn on a bank in the continental United States or by
postal, telegraphic, or express money order, in each case
payable to the order of the Fund.
(c) Rights may be exercise at any time after the date of issuance
of the Subscription Certificates with respect thereto but no
later than 5:00 P.M. New York City Time on such date as the
Fund shall designate to the agent in writing (the "Expiration
Date"). For the purpose of determining the time of the
exercise of any Rights, delivery of any material to the Agent
shall be deemed to occur when such materials are received at
the corporate office of the Agent specified in the Prospectus.
(d) Notwithstanding the provisions of Section 3(b) and 3(c)
regarding delivery of any executed Subscription Certificate to
the Agent prior to 5:00 P.M. New York City Time on the
Expiration Date, if prior to such time the Agent receives
notice of guaranteed delivery by telegram or otherwise from a
bank, trust company or a New York Stock Exchange member
guaranteeing delivery of (i) full payment for shares purchased
and subscribed for by virtue of a Rights Holder's Rights, and
(ii) a properly completed and executed Subscription
Certificate, then such exercise of Basic Subscription Rights
and Oversubscription Rights shall be regarded as timely,
subject, however, to receipt of
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the duly executed Subscription Certificate and full payment
for the Common Stock by the Agent within three business days
after the Expiration Date (as defined in the Prospectus).
(e) Following the Expiration Date (the "Confirmation Date"), the
Agent shall send a confirmation to each Shareholder (or, if
shares of Common Stock on the Record Date are held by Cede &
Co. or any other depository or nominee, to Cede & Co. or such
other depository or nominee), showing (i) the number of shares
acquired pursuant to the Basic Subscription Rights, (ii) the
number of shares, if any, acquired pursuant to the
Oversubscription Rights, (iii) the per share and total
purchase price for the shares, (iv) any amount payable to the
Shareholder pursuant to Section 9, and (v) any excess to be
refunded by the Fund to such Shareholder, in each case based
on the Subscription Price. Any excess payment to be refunded
by the Fund to a Shareholder, shall be mailed by the Agent to
the Shareholder as promptly as possible after the Expiration
Date, as provided in Section 6 below.
4. If, after allocation of shares of Common Stock to persons exercising
Basic Subscription Rights, there remain unexercised Rights, then the
Agent shall allot the shares issuable upon exercise of such unexercised
Rights (the Remaining Shares") to person exercising Oversubscription
Rights, in the amounts of such oversubscription. If the number of
shares for which Oversubscription Rights have been exercised is greater
than the Remaining Shares, the Agent shall allot the Remaining Shares
to the persons exercising Oversubscription Rights pro rata based solely
on the number of Basic Subscription Rights exercised by each of them.
The Agent shall advise the Fund immediately upon the completion of the
allocation set forth above as to the total number of shares subscribed
and distributable.
5. (a) The Agent will deliver (i) certificates representing those
shares purchased pursuant to the exercise of Basic
Subscription Rights as soon as practicable after the
corresponding Rights have been validly exercised and full
payment for such shares has been received and cleared;
(ii) certificates representing those shares purchased pursuant
to the exercise of Oversubscription Rights as soon an
practicable after the Expiration Date and after all
allocations have been effected; (iii) in the case of each
Record Date Shareholder who subscribed, pursuant to the
exercise of Oversubscription Rights, for a greater number of
shares than was allotted to such Record Date Shareholder under
Section 4, as promptly as possible after the Expiration Date,
a refund (and interest on such) in the amount of the
difference between the purchase price delivered for the shares
subscribed for pursuant to the exercise of such
Oversubscription Rights and the purchase price of the shares
so allotted under Section 4 (an "Excess Payment"); (iv) in the
case of record shareholders who are participants in the
dividend reinvestment and cash purchase plan, within fifteen
business days after the expiration date, account statements
reflecting a credit of uncertified shares for their primary
and oversubscription shares unless such shareholders have
elected to receive certificates.
6. (a) All proceeds received by the Agent from Rights holders in
respect of the exercise of rights shall be held by the Agent,
on behalf of the Fund, in a segregated, interest-bearing
escrow account (the "Escrow Account") (the interest of which
shall be paid to the Fund) pending disbursement in the manner
described in Section 6(b) below.
(b) The Agent shall deliver all proceeds received in respect of
the exercise of the Rights (including interest earned thereon)
to the Fund as promptly as practicable, [but in no event later
than fifteen business days after the Confirmation Date.]
Proceeds held in
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respect of Excess Payments (including interest earned thereon)
shall be refunded to Record Date Shareholders entitled to such
a refund as promptly as possible after the Expiration Date.
7. The Agent shall promptly advise the Fund as to the date of delivery of
Common Stock hereunder and shall supply the Fund with a certified list
of Shareholders as of the Record Date.
8. The Agent shall account promptly to the Fund with respect to Rights
exercised and concurrently account for all monies received and returned
by the Agent with respect to the purchase of shares of Common Stock
upon the exercise of Rights.
9. In the event the Agent does not receive, within three business days
after the Expiration Date, any amount due from a Rights Holder as
specified in Section 3(e), then it shall take such action with respect
to such Rights Holder's Subscription Rights as may be instructed in
writing by the Fund, including without limitation (i) applying any
payment actually received by it toward the purchase of the greatest
whole number of shares of Stock which could be acquired with such
payment, and (ii) allocating the shares subject to such Subscription
Rights to one or more other Record Date Shareholders.
10. No Subscription Certificate shall entitle a Rights Holder to vote or
receive dividends or be deemed the holder of shares of Common Stock for
any purpose, nor shall anything contained in any Subscription
Certificate be construed to confer upon any Rights Holder any of the
rights of a shareholder of the Fund or any right to vote, give or
withhold consent to any action by the Fund (whether upon any
recapitalization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice of
meetings of other action affecting shareholders, or receive dividends
or otherwise, until the Rights evidenced thereby shall have been
exercised and the shares of Common Stock purchasable upon the exercise
thereof shall have become deliverable as provided in this Agreement and
in the Prospectus.
11. If any Subscription Certificate is lost, stolen, mutilated, or
destroyed, the Agent may, on such terms which will indemnify the Fund
as the Agent may in its discretion impose (which shall, in the case of
a Subscription Certificate include the surrender thereof), issue a new
Subscription Certificate of like denomination in substitution for the
Subscription Certificate so lost, stolen or mutilated or destroyed.
12. (a) The Fund covenants that all shares of Common Stock issued on
exercise of Rights set forth in the Subscription Certificates
will be validly issued, fully paid, nonassessable and free of
preemptive rights.
(b) The Fund shall furnish to the Agent written notice to the
effect that a registration statement under the Securities Act
of 1933, as amended (the "Act"), is then in effect with
respect to its shares of Common Stock issuable upon the
exercise of the Rights set forth in the Subscription
Certificates. Upon written advice to the Agent that the
Securities and Exchange Commission shall have issued or
threatened to have issued any order preventing or suspending
the use of the Prospectus, or if for any reason it shall be
necessary to amend or supplement the Prospectus in order to
comply with the Act, the Agent shall cease acting hereunder
until receipt of written instructions from the Fund and such
assurances as it may reasonably request that it may comply
with such instruction without violations of the Act.
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13. (a) Any corporation into which the Agent may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Agent shall be a party, or any
corporation succeeding to the corporate trust business of the
Agent, shall be the successor to the Agent hereunder without
the execution or filing of any of the parties hereto, provided
that such corporation would be eligible for appointment as a
successor Agent. In case at the time such successor to the
Agent shall succeed to the agency created by this Agreement,
any of the Subscription Certificates shall have been
countersigned but not delivered, any such successor to the
Agent may adopt the countersignature of the original Agent and
deliver such Subscription Certificates so countersigned, and
in case at that time any of the Subscription Certificates
shall not have been countersigned, any successor to the Agent
may countersign such Subscription Certificates either in the
name of the predecessor Agent or in the name of the successor
Agent, and in all such cases such Subscription Certificates
shall have the full force provided in the Subscription
Certificates and in this Agreement.
(b) In case at any time the name of the Agent shall be changed and
at such time any of the Subscription Certificates shall have
been countersigned but not delivered, the Agent may adopt the
countersignature under its prior name and deliver Subscription
Certificates so countersignature under its prior name and
deliver Subscription Certificates so countersigned, and in
case at that time any of the Subscription Certificates shall
not have been countersigned, the Agent may countersign such
Subscription Certificates either in its prior name or in its
changed name, and in all such cases such Subscription
Certificates shall have the full force provided in the
Subscription Certificates and in this Agreement.
14. The Fund agrees to pay to the Agent such reasonable compensation for
all services rendered by it hereunder as set forth in Schedule A hereto
and in addition to its reasonable expenses and other disbursements
incurred in the exercise and performance of its duties hereunder.
15. The Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions:
(a) Whenever in the performance of its duties under this Agreement
the Agent shall deem it necessary or desirable that any fact
or matter be proved or established, prior to taking or
suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof is herein specifically
prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the
Board or President or a Vice President or the Secretary or
Assistant Secretary or the Treasurer of the Fund delivered to
the Agent, and such certificate shall be full authorization to
the Agent for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(b) The Agent agrees to indemnify and hold harmless the Fund from
any and all direct or indirect liabilities or losses resulting
from requests, directions, actions or inactions, of or by the
Agent or its officers, employees or agents regarding this
Agreement; provided, however, that such duty to indemnify and
hold harmless shall not apply to liabilities or losses
occasioned by or resulting from the gross negligence or
willful misconduct of the Fund or any of its employees or
agents. Such duty to indemnify and hold harmless shall survive
the termination of this Agreement.
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(c) The Fund agrees to indemnify and hold the Agent harmless from
any and all direct or indirect liabilities or losses arising
from any legal action caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Fund's prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that such duty to indemnify and
hold harmless shall not apply to liabilities or losses
occasioned by or resulting from the gross negligence or
willful misconduct of the Agent or any of its employees or
agents. Such duty to indemnify and hold harmless shall survive
the termination of this Agreement.
(d) The indemnifying party shall not be liable for indemnification
under this Section 15 unless the party seeking indemnification
shall have notified the indemnifying party in writing of the
commencement of any litigation or proceeding in respect of
which indemnity may be sought under this Section 15. With
respect to claims in such litigation or proceedings for which
indemnify may be sought, the indemnifying party shall be
entitled to participate in any such litigation or proceeding
and the indemnifying party shall be entitled to assume the
defense of such litigation or proceeding with counsel of their
choice at their own expense in respect of that portion of the
litigation for which the indemnifying party may be subject to
an indemnification obligation. If the indemnifying party is
not permitted to participate or control such litigation or
proceeding under applicable law or by a ruling of a court of
competent jurisdiction or otherwise, the party seeking
indemnification shall reasonably prosecute such litigation or
proceeding. In no event shall the party seeking
indemnification consent to the entry of any judgment or enter
into any settlement in any such litigation or proceeding
(including any threatened litigation or proceeding) without
providing the indemnifying party with adequate notice of any
such settlement or judgment, and without the indemnifying
party's prior written consent. The party seeking
indemnification shall submit written evidence to the
indemnifying party with respect to any cost or expense for
which the party seeking indemnification is seeking
indemnification in such form and detail as the indemnifying
party may reasonably request.
(e) Nothing herein shall preclude the Agent from acting in any
other capacity for the Fund or for any other legal entity.
(f) The Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties
hereunder from any officer or assistant officer of the Fund
and to apply to any such officer of the Fund for advice or
instructions in connection with its duties, and subject to the
notice requirements set forth above, shall be indemnified and
not be liable for any action taken or suffered by it in good
faith in accordance with instructions of any officer or
assistant officer.
(g) The Agent shall be indemnified and shall incur no liability
for or in respect of any action taken, suffered, or omitted by
it in reasonable reliance upon any Subscription Certificate or
certificate for Common Stock, instrument or assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other
paper or document that it reasonably believes to be genuine
and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
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(h) Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this
Agreement of for any consequential damages arising out of any
reasonable act or reasonable failure to act hereunder.
16. The Agent may, without the consent or concurrence of the Shareholders
in whose names Subscription Certificates are registered, by
supplemental agreement or otherwise, concur with the Fund in making any
changes or corrections in a Subscription Certificate that it shall have
been advised by counsel (who may be counsel for the Fund) is
appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest
error therein or herein contained, and which shall not be inconsistent
with the provisions of the Subscription Certificate except insofar as
any such changes may confer additional rights upon the Rights Holders.
17. Assignment
(a) Except as provided in Section (c) below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the
other party.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
(c) The Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston
Equiserve Limited Partnership, a Delaware Limited Partnership,
which is fully registered as a transfer agent pursuant to
Section 17(c)(2) of the Securities Exchange Act of 1934
("Section A(c)(1)"), or (ii) the current third party vendor
utilized by BFDS; provided, however, that the Agent shall be
as fully responsible to the Fund for the acts and omissions of
any subcontractor as it is for its own acts and omissions.
18. All the covenants and provisions of this Agreement by or for the
benefit of the Fund or the Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
19. The validity, interpretation and performance of this Agreement shall be
governed by law of the Commonwealth of Massachusetts, without giving
effect to the choice of law provisions thereof.
STATE STREET BANK AND FIDELITY ADVISOR KOREA FUND, INC.
TRUST COMPANY
By:_____________________________ By:________________________________
Vice President (Officer)
Dated:__________________________ Dated:_____________________________
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