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Exhibit 2(h)(1)
FIDELITY ADVISOR KOREA FUND, INC.
______________ Shares of Common Stock
Issuable Upon Exercise of Non-Transferable Rights
to Subscribe for Such Shares of Common Stock
DEALER MANAGER AGREEMENT
New York, New York
November __, 1996
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Fidelity Advisor Korea Fund, Inc., a Maryland corporation (the
"Company"), Fidelity Management & Research Company, a Massachusetts corporation
(the "Manager"), Fidelity International Investment Advisors, a Bermuda
corporation (the "Adviser"), and Fidelity Investments Japan Limited, an entity
organized under the laws of Japan (the "Sub-Adviser"), each confirm their
agreement with and appointment of Painewebber Incorporated (the "Dealer
Manager") to act as dealer manager in connection with the issuance by the
Company to the holders of record (the "Holders") at the close of business on the
record date set forth in the Prospectus (as defined herein) (the "Record Date")
4,407,093 non-transferable rights entitling such Holders to subscribe for
_________ shares (each a "Share" and, collectively, the "Shares") of common
stock, par value $.001 per share (the "Common Stock"), of the Company (the
"Offer"). Pursuant to the terms of the Offer, the Company is issuing each Holder
one non-transferable right (each a "Right" and, collectively, the "Rights") for
each share of Common Stock held by such Holder on the Record Date. Such Rights
entitle Holders to acquire during the subscription period set forth in the
Prospectus (the "Subscription Period"), at the price set forth in such
Prospectus (the "Subscription Price"), one Share for each ____ Rights exercised
on the terms and conditions set forth in such Prospectus. No fractional shares
will be issued. Any Holder who fully exercises all Rights initially issued to
such Holder will be entitled to subscribe for, subject to allocation, additional
Shares (the "Over-Subscription Privilege"). Pursuant to the Over-Subscription
Privilege, the Company
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may, at its discretion, increase the number of Shares subject to subscription by
up to 25%, or _______ Shares, for an aggregate total of ________ Shares.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (Nos. 333-14049 and 811-8608)
and a related preliminary prospectus and preliminary statement of additional
information under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Commission under the
Investment Company Act and the Securities Act (the "Rules and Regulations"), and
has filed such amendments to such registration statement on Form N-2, if any,
and such amended preliminary prospectuses and preliminary statements of
additional information as may have been required to the date hereof. If the
registration statement has not become effective, a further amendment to such
registration statement, including forms of a final prospectus and final
statement of additional information necessary to permit such registration
statement to become effective will promptly be filed by the Company with the
Commission. If the registration statement has become effective and any
prospectus or statement of additional information contained therein omits
certain information at the time of effectiveness pursuant to Rule 430A of the
Rules and Regulations, a final prospectus and final statement of additional
information containing such omitted information will promptly be filed by the
Company with the Commission in accordance with Rule 497(h) of the Rules and
Regulations. The registration statement, as amended at the time it becomes or
became effective, including financial statements and all exhibits and all
documents, if any, incorporated therein by reference, and any information deemed
to be included by Rule 430A, is called the "Registration Statement." The term
"Prospectus" means the final prospectus and final statement of additional
information in the forms filed with the Commission pursuant to Rule 497(c), (h)
or (j) of the Rules and Regulations, as the case may be, as from time to time
amended or supplemented pursuant to the Securities Act. The Prospectus and
letters to beneficial owners of the shares of Common Stock of the Company, forms
used to exercise rights, any letters from the Company to securities dealers,
commercial banks and other nominees and any newspaper announcements, press
releases and other offering materials and information that the Company may use,
approve, prepare or authorize for use in connection with the Offer, are
collectively referred to hereinafter as the "Offering Materials".
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1. Representations and Warranties.
(a) Each of the Company and the Manager represents and warrants to, and
agrees with, the Dealer Manager as of the date hereof, as of the date of the
commencement of the Offer (such later date being hereinafter referred to as the
"Representation Date") and as of the Expiration Date (as defined below) that:
(i) the Company meets the requirements for use of Form N-2
under the Securities Act and the Investment Company Act and the Rules
and Regulations. At the time the Registration Statement became or
becomes effective, the Registration Statement did or will contain all
statements required to be stated therein in accordance with and did or
will comply in all material respects with the requirements of the
Securities Act, the Investment Company Act and the Rules and
Regulations and did or will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
From the time the Registration Statement became or becomes effective
through the expiration date of the Offer set forth in the Prospectus
(the "Expiration Date"), the Prospectus and the other Offering
Materials will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement, Prospectus or Offering Materials made in reliance upon and
in conformity with information furnished to the Company in writing by
the Dealer Manager expressly for use in the Registration Statement,
Prospectus or Offering Materials.
(ii) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, has full corporate power and authority to conduct its
business as described in the Registration Statement and the Prospectus,
currently maintains all governmental licenses, permits, consents,
orders, approvals, and other authorizations (collectively, the
"Licenses and Permits") necessary to carry on its business as
contemplated in the Prospectus, and is duly qualified to do business as
a foreign corporation in each jurisdiction wherein it owns or
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leases real property or in which the conduct of its business requires
such qualification, except where the failure to obtain or maintain such
Licenses and Permits or to be so qualified would not result in a
material adverse effect upon the business, properties, financial
position or results of operations of the Company. The Company has no
subsidiaries.
(iii) the Company is registered with the Commission under the
Investment Company Act as a closed-end, non-diversified management
investment company, no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to
the knowledge of the Company, threatened by the Commission, all
required action has been taken under the Securities Act and the
Investment Company Act to consummate the issuance of the Rights and the
issuance and sale of the Shares by the Company upon exercise of the
Rights, and the provisions of the Company's charter and by-laws comply
as to form in all material respects with the requirements of the
Investment Company Act.
(iv) Price Waterhouse LLP, the accountants who certified the
financial statements of the Company set forth or incorporated by
reference in the Registration Statement and the Prospectus, are
independent public accountants as required by the Investment Company
Act and the Rules and Regulations.
(v) the financial statements of the Company set forth or
incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the financial
condition of the Company as of the dates or for the periods indicated
in conformity with generally accepted accounting principles applied on
a consistent basis; and the information set forth in the Prospectus
under the headings "Fee Table" and "Financial Highlights" presents
fairly in all material respects the information stated therein.
(vi) the Company has an authorized capitalization as set forth
in the Prospectus; the outstanding shares of Common Stock have been
duly authorized arid are validly issued, fully paid and non-assessable
and conform in all material respects to the description thereof in the
Prospectus under the heading "Description of Capital Stock"; the Rights
have been duly authorized by all requisite action on the part of the
Company for issuance pursuant to the Offer; the Shares have been duly
authorized by all
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requisite action on the part of the Company for issuance and sale
pursuant to the terms of the Offer and, when issued and delivered by
the Company pursuant to the terms of the Offer against payment of the
consideration set forth in the Prospectus, will be validly issued,
fully paid and non-assessable; the Shares and the Rights conform in all
material respects to all statements relating thereto contained in the
Registration Statement, the Prospectus and the other Offering
Materials; and the issuance of each of the Rights and the Shares is not
subject to any preemptive rights.
(vii) except as set forth in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, (A) the Company has not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, other than in the ordinary course of business, that are
material to the Company, (B) there has not been any material change in
the capital stock or long-term debt of the Company, or any material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or other), business,
prospects, net worth or results of operations of the Company (excluding
fluctuations in the Company's net asset value due to investment
activities in the ordinary course of business) and (C) there have been
no dividends or distributions paid or declared in respect of the
Company's capital stock.
(viii) except as set forth in the Registration Statement and
Prospectus, there is no pending or, to the knowledge of the Company,
threatened action, suit or proceeding to which the Company is a party
before or by any court or governmental agency, authority or body or any
arbitrator, whether foreign or domestic, which might result in any
material adverse change in the condition (financial or other), business
prospects, net worth or results of operations of the Company, or which
might materially and adversely affect the properties or assets thereof
of a character required to be disclosed in the Registration Statement
or the Prospectus.
(ix) there are no franchises, contracts or other documents of
the Company required to be described in the Registration Statement or
the Prospectus, or to be filed or incorporated by reference as exhibits
which are not described or filed or incorporated by reference therein
as permitted by
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the Securities Act, the Investment Company Act or the Rules and
Regulations.
(x) each of this agreement (the "Agreement"), the Subscription
Agency Agreement (the "Subscription Agency Agreement") dated as of
November __, 1996 between the Company and State Street Bank and Trust
Company (the "Subscription Agent"), the Information Agent Agreement
(the "Information Agent Agreement") dated as of November __, 1996
between the Company and X.X. Xxxx & Co. Inc. (the "Information Agent"),
the Management Agreement dated as of October 25, 1994 between this
Company and the Manager (the "Management Agreement"), the Investment
Advisory Agreement dated as of October 25, 1994 between the Company,
the Manager and the Adviser (the "Advisory Agreement"), the
Sub-Investment Advisory Agreement dated as of October 25, 1994 between
the Company, the Adviser and the Sub-Adviser (the "Sub-Advisory
Agreement"), the U.S. Custodian Agreement dated as of October 25, 1994
between the Company and The Chase Manhattan Bank, N.A. (the "Custodian
Agreement"), the Transfer Agency and Service Agreement dated as of
October 25, 1994 between the Company and State Street Bank and Trust
Company (the "Transfer Agency Agreement") and the Administration
Agreement between the Company and Fidelity Service Co. dated as of ,
199 International Limited (the "Administration Agreement")
(collectively, all the foregoing are the "Company Agreements") has been
duly authorized, executed and delivered by the Company; each of the
Company Agreements complies with all applicable provisions of the
Investment Company Act; and, assuming due authorization, execution and
delivery by the other parties thereto, each of the Company Agreements
constitutes a legal, valid, binding and enforceable obligation of the
Company, subject to the qualification that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, and to
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xi) neither the issuance of the Rights, nor the issuance and
sale of the Shares, nor the performance and consummation by the Company
of any other of the transactions contemplated in the Company Agreements
or any sub-custodial arrangements entered into pursuant to the
Custodian Agreement, nor the consummation of the transactions
contemplated in the
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Registration Statement will conflict with, result in a breach or
violation of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company under the charter or by-laws of the Company, or
the terms and provisions of any agreement, indenture, mortgage, lease
or other instrument to which the Company is a party or by which it may
be bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of any order,
law, rule or regulation of any court or governmental agency or body,
whether foreign or domestic, having jurisdiction over the Company or
any of its properties.
(xii) no consent, approval, authorization, notification or
order of, or filing with, any court or governmental agency or body,
whether foreign or domestic, is legally required for the consummation
by the Company of the transactions contemplated by the Company
Agreements or the Registration Statement, except such as have been
obtained, or if the registration statement filed with respect to the
Shares is not effective under the Securities Act as of the time of
execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Investment Company Act, the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and state securities laws.
(xiii) the Company either owns or possesses all governmental
licenses, permits, consents, orders, approvals or other authorizations
under the laws of the Republic of Korea ("Korea") to enable the Company
to invest in securities of Korean Issuers (as defined in the
Prospectus) as contemplated in the Prospectus. Neither the execution or
delivery by the Company nor the performance by the Company of any of
its obligations under the Company Agreements contravenes or constitutes
a default under any provision contained in any law, rule or regulation
of any Korean governmental or regulatory authority or any order or
regulation of any Korean court by which the Company or any of its
assets in Korea is bound or affected.
(xiv) the Common Stock has been duly listed on the New York
Stock Exchange and prior to their issuance the Shares will have been
duly approved for listing, subject to official notice of issuance, on
the New York Stock Exchange.
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(xv) the Company (A) has not taken, directly or indirectly,
any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the issuance of the Rights or the sale or resale of the
Shares, (B) has not since the filing of the Registration Statement
sold, bid for or purchased, or paid anyone any compensation for
soliciting purchases of, shares of Common Stock of the Company (except
for the solicitation of exercises of the Rights pursuant to this
Agreement) and (C) will not, until the later of the expiration of the
Rights or the completion of the distribution (within the meaning of
Rule 10b-6 under the Exchange Act) of the Shares, sell, bid for or
purchase, pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the solicitation of the exercises of Rights pursuant to
this Agreement); provided that any action in connection with the
Company's dividend reinvestment and cash purchase plan will not be
deemed to be within the terms of this Section 1(a)(xv).
(xvi) the Company has complied in all previous tax years, and
intends to direct the investment of the proceeds of the offering
described in the Registration Statement and the Prospectus in such a
manner as to continue to comply with the requirements of Subchapter M
of the Internal Revenue Code of 1986, as amended ("Subchapter M of the
Code"), and has qualified and intends to continue to qualify as a
regulated investment company under Subchapter M of the Code.
(xvii) no taxes or charges of any kind are or will be payable
in or to Korea, or any political subdivision thereof, by the Dealer
Manager with respect to this Agreement or the solicitation of the
exercise of the Rights or the purchase or sale of the Shares hereunder.
(b) The Manager represents and warrants to, and agrees with,
the Dealer Manager as of the date hereof, as of the Representation Date and as
of the Expiration Date that:
(i) the Manager has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts, has full corporate power and authority
to own its properties and conduct its business as described
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in the Registration Statement and the Prospectus, and is duly qualified
to do business as a foreign corporation in each jurisdiction wherein it
owns or leases real property or in which the conduct of its business
requires such qualification, except where the failure to be so
qualified does not involve a material adverse risk to the Manager's
business, properties, financial position or operations.
(ii) the Manager is duly registered as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and is not prohibited by the Advisers Act or the Investment
Company Act, or the rules and regulations under such Acts, from acting
as an investment adviser for the Company as contemplated in the
Prospectus, the Management Agreement and the Advisory Agreement.
(iii) each of this Agreement, the Management Agreement and the
Advisory Agreement has been duly authorized, executed and delivered by
the Manager and complies with all applicable provisions of the Advisers
Act and the Investment Company Act, and is, assuming due authorization,
execution and delivery by the other parties thereto, a legal, valid,
binding and enforceable obligation of the Manager, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors'
rights, and to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(iv) neither the performance by the Manager of its obligations
under this Agreement, the Management Agreement or the Advisory
Agreement nor the consummation of the transactions contemplated therein
or in the Registration Statement nor the fulfillment of the terms
thereof will conflict with, result in a breach or violation of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any properties or assets of the
Manager under the charter or by-laws of the Manager, or the terms and
provisions of any agreement, indenture, mortgage, lease or other
instrument to which the Manager is a party or by which it may be bound
or to which any of the property or assets of the Manager is subject,
nor will such action result in any violation of any order, law, rule or
regulation of any court or governmental agency or body, whether foreign
or domestic, having jurisdiction over the Manager or any of its
properties.
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(v) except as set forth in the Registration Statement and
Prospectus, there is no pending or, to the best knowledge of the
Manager, threatened action, suit or proceeding to which the Manager is
a party before or by any court or governmental agency, authority or
body or any arbitrator, whether foreign or domestic, which might result
in any material adverse change in the condition (financial or other),
business prospects, net worth or results of operations of the Manager,
or which might materially and adversely affect the properties or assets
thereof of a character required to be disclosed in the Registration
Statement or Prospectus.
(vi) the Manager does not require any governmental licenses,
permits, consents, orders, approvals or other authorizations under the
laws of Korea to enable the Manager to continue to supervise
investments in securities of Korean Issuers as contemplated in the
Prospectus. Neither the execution or delivery by the Manager nor the
performance by the Manager of any of its obligations under this
Agreement, the Management Agreement and the Advisory Agreement will
contravene or constitute a default under any provision contained in any
law, rule or regulation of any Korean governmental or regulatory
authority or any order or regulation of any Korean court by which the
Company or any of its assets in Korea is bound or affected.
(vii) no consent, approval, authorization, notification or
order of, or any filing with, any court or governmental agency or body
is required under federal law or the laws of any other jurisdiction in
the United States or Korea for the consummation by the Manager of the
transactions contemplated by this Agreement, the Management Agreement
or the Advisory Agreement.
(viii) the Manager (A) has not taken, directly or indirectly,
any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the issuance of the Rights or the sale or resale of the
Shares, (B) has not since the filing of the Registration Statement
sold, bid for or purchased, or paid anyone any compensation for
soliciting purchases of, shares of Common Stock of the Company (except
for the solicitation of exercises of Rights pursuant to this Agreement)
and (C) will not, until the later of the expiration of the Rights or
the completion of the distribution
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(within the meaning of Rule 10b-6 under the Exchange Act) of the
Shares, sell, bid for or purchase, pay or agree to pay any person any
compensation for soliciting another to purchase any other securities of
the Company (except for the solicitation of exercises of Rights
pursuant to this Agreement); provided that any action in connection
with the Company's dividend reinvestment and cash purchase plan will
not be deemed to be within the terms of this Section 1(b)(viii).
(c) Each of the Manager and the Adviser represents and
warrants to, and agrees with, the Dealer Manager as of the date hereof, as of
the Representation Date and as of the Expiration Date that:
(i) the Adviser has been duly incorporated and is validly
existing as a company in good standing under the laws of Bermuda, has
full corporate power and authority to own its properties and conduct
its business as described in the Registration Statement and the
Prospectus, and is duly qualified to do business as a foreign
corporation in each jurisdiction wherein it owns or leases real
property or in which the conduct of its business requires such
qualification, except where the failure to be so qualified does not
involve a material adverse risk to its business, properties, financial
position or results of operations of the Adviser.
(ii) the Adviser is duly registered as an investment adviser
under the Advisers Act, and is not prohibited by the Advisers Act or
the Investment Company Act, or the rules and regulations under such
Acts, from acting as an investment adviser for the Company as
contemplated in the Prospectus, the Advisory Agreement and the
Sub-Advisory Agreement.
(iii) each of this Agreement, the Advisory Agreement and the
Sub-Advisory Agreement has been duly authorized, executed and delivered
by the Adviser and complies with all applicable provisions of the
Advisers Act and the Investment Company Act, and is, assuming due
authorization, execution and delivery by the other parties thereto, a
legal, valid, binding and enforceable obligation of the Adviser,
subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights, and to general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
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(iv) neither the performance by the Adviser of its obligations
under this Agreement, the Advisory Agreement or the Sub-Advisory
Agreement nor the consummation of the transactions contemplated therein
or in the Registration Statement nor the fulfillment of the terms
thereof will conflict with, result in a breach or violation of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any properties or assets of the
Adviser under the charter or by-laws of the Adviser, or the terms and
provisions of any agreement, indenture, mortgage, lease or other
instrument to which the Adviser is a party or by which it may be bound
or to which any of the property or assets of the Adviser is subject,
nor will such action result in any violation of any order, law, rule or
regulation of any court or governmental agency or body, whether foreign
or domestic, having jurisdiction over the Adviser or any of its
properties.
(v) except as set forth in the Registration Statement and
Prospectus, there is no pending or, to the best knowledge of the
Adviser, threatened action, suit or proceeding to which the Adviser is
a party before or by any court or governmental agency, authority or
body or any arbitrator, whether foreign or domestic, which might result
in any material adverse change in the condition (financial or other),
business prospects, net worth or results of operations of the Adviser,
or which might materially and adversely affect the properties or assets
thereof of a character required to be disclosed in the Registration
Statement or Prospectus.
(vi) the Adviser does not require any governmental licenses,
permits, consents, orders, approvals or other authorizations under the
laws of Korea to enable the Adviser to continue to supervise or direct
investments in securities of Korean Issuers as contemplated in the
Prospectus. Neither the execution or delivery by the Adviser nor the
performance by the Adviser of any of its obligations under this
Agreement, the Advisory Agreement and the Sub-Advisory Agreement will
contravene or constitute a default under any provision contained in any
law, rule or regulation of any Korean governmental or regulatory
authority or any order or regulation of any Korean court by which the
Company or any of its assets in Korea is bound or affected.
(vii) no consent, approval, authorization, notification or
order of, or any filing with, any
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court or governmental agency or body is required under Federal law or
the laws of any other jurisdiction in the United States or Korea for
the consummation by the Adviser of the transactions contemplated by
this Agreement, the Advisory Agreement or the Sub-Advisory Agreement.
(viii) the Adviser (A) has not taken, directly or indirectly,
any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the issuance of the Rights or the sale or resale of the
Shares, (B) has not since the filing of the Registration Statement
sold, bid for or purchased, or paid anyone any compensation for
soliciting purchases of, shares of Common Stock of the Company (except
for the solicitation of exercises of Rights pursuant to this Agreement)
and (C) will not, until the later of the expiration of the Rights or
the completion of the distribution (within the meaning of Rule 10b-6
under the Exchange Act) of the Shares, sell, bid for or purchase, pay
or agree to pay any person any compensation for soliciting another to
purchase any other securities of the Company (except for the
solicitation of exercises of Rights pursuant to this Agreement);
provided that any action in connection with the Company's dividend
reinvestment and cash purchase plan will not be deemed to be within the
terms of this Section 1(c) (viii).
(d) Each of the Manager and the Sub-Adviser represents and
warrants to, and agrees with, the Dealer Manager as of the date hereof, as of
the Representation Date and as of the Expiration Date that:
(i) the Sub-Adviser has been duly incorporated and is validly
existing as a corporation under the laws of Japan, has full corporate
power and authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus, and is duly
qualified to do business as a foreign corporation in each jurisdiction
wherein it owns or leases real property or in which the conduct of its
business requires such qualification, except where the failure to be so
qualified does not involve a material adverse risk to its business,
properties, financial position or results of operations of the
Sub-Adviser.
(ii) the Sub-Adviser is duly registered as an investment
adviser under the Advisers Act, and is
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not prohibited by the Advisers Act or the Investment Company Act, or
the rules and regulations under such Acts, from acting as an investment
adviser for the Company as contemplated in the Prospectus and the
Sub-Advisory Agreement.
(iii) each of this Agreement and the Sub-Advisory Agreement
have been duly authorized, executed and delivered by the Sub-Adviser
and complies with all applicable provisions of the Advisers Act and the
Investment Company Act, and is, assuming due authorization, execution
and delivery by the other parties thereto, a legal, valid, binding and
enforceable obligation of the Sub-Adviser, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights, and
to general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(iv) neither the performance by the Sub-Adviser of its
obligations under this Agreement or the Advisory Agreement nor the
consummation of the transactions contemplated therein or in the
Registration Statement nor the fulfillment of the terms thereof will
conflict with, result in a breach or violation of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the Sub-Adviser
under the charter or by-laws of the Sub-Adviser, or the terms and
provisions of any agreement, indenture, mortgage, lease or other
instrument to which the Sub-Adviser is a party or by which it may be
bound or to which any of the property or assets of the Sub-Adviser is
subject, nor will such action result in any violation of any order,
law, rule or regulation of any court or governmental agency or body,
whether foreign or domestic, having jurisdiction over the Sub-Adviser
or any of its properties.
(v) except as set forth in the Registration Statement and
Prospectus, there is no pending or, to the best knowledge of the
Sub-Adviser, threatened action, suit or proceeding to which the
Sub-Adviser is a party before or by any court or governmental agency,
authority or body or any arbitrator, whether foreign or domestic, which
might result in any material adverse change in the condition (financial
or other), business prospects, net worth or results of operations of
the Sub-Adviser, or which might materially and adversely affect the
properties
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or assets thereof of a character required to be disclosed in the
Registration Statement or Prospectus.
(vi) the Sub-Adviser does not require any governmental
licenses, permits, consents, orders, approvals or other authorizations
under the laws of Japan or Korea to enable the Sub-Adviser to continue
to direct investments in securities of Korean Issuers as contemplated
in the Prospectus. Neither the execution or delivery by the Sub-Adviser
nor the performance by the Sub-Adviser of any of its obligations under
this Agreement or the Sub-Advisory Agreement will contravene or
constitute a default under any provision contained in any law, rule or
regulation of any Korean governmental or regulatory authority or any
order or regulation of any Korean court by which the Company or any of
its assets in Korea is bound or affected.
(vii) no consent, approval, authorization, notification or
order of, or any filing with, any court or governmental agency or body
is required under Federal law or the laws of any other jurisdiction in
the United States or Korea for the consummation by the Sub-Adviser of
the transactions contemplated by this Agreement or the Sub-Advisory
Agreement.
(viii) the Sub-Adviser (A) has not taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the issuance of the Rights or the sale or resale
of the Shares, (B) has not since the filing of the Registration
Statement sold, bid for or purchased, or paid anyone any compensation
for soliciting purchases of, shares of Common Stock of the Company
(except for the solicitation of exercises of Rights pursuant to this
Agreement) and (C) will not, until the later of the expiration of the
Rights or the completion of the distribution (within the meaning of
Rule 10b-6 under the Exchange Act) of the Shares, sell, bid for or
purchase, pay or agree to pay any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the solicitation of exercises of Rights pursuant to this
Agreement); provided that any action in connection with the Company's
dividend reinvestment plan will not be deemed to be within the terms of
this Section 1(d) (viii).
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(e) Any certificate required by this Agreement that is signed
by any officer of the Company, the Manager, the Adviser or the Sub-Adviser and
delivered to the Dealer Manager or counsel for the Dealer Manager shall be
deemed a representation and warranty by the Company, the Manager, the Adviser or
the Sub-Adviser, as the case may be, to the Dealer Manager, as to the matters
covered thereby.
2. Agreement to Act as Dealer Manager.
(a) On the basis of the representations and warranties
contained herein, and subject to the terms and conditions of the Offer:
(i) The Company hereby appoints the Dealer Manager and other
soliciting dealers entering into a Soliciting Dealer Agreement, in the
form attached hereto as Exhibit A, with the Dealer Manager (the
"Soliciting Dealers"), and the Dealer Manager hereby agrees to solicit,
in accordance with the Securities Act, the Investment Company Act and
the Exchange Act, and its customary practice, the exercise of the
Rights, subject to the terms and conditions of this Agreement, the
procedures described in the Registration Statement, the Prospectus and,
where applicable, the terms and conditions of such Soliciting Dealer
Agreement; and
(ii) The Company agrees to furnish, or cause to be furnished,
to the Dealer Manager, lists, or copies of those lists, showing the
names and addresses of, and number of shares of Common Stock held by,
Holders as of the Record Date, and the Dealer Manager agrees to use
such information only in connection with the Offer, and not to furnish
the information to any other person except for securities brokers and
dealers that have been requested by the Dealer Manager to solicit
exercises of Rights.
(b) The Dealer Manager agrees to provide to the Company, in
addition to the services described in paragraph (a) of this Section 2, financial
advisory and marketing services in connection with the Offer. No advisory fee,
other than the fees provided for in Section 3 of this Agreement and the
reimbursement of the Dealer Manager's out-of-pocket expenses as described in
Section 5 of this Agreement, will be payable by the Company, or any other party
hereto, to the Dealer Manager in connection with the financial advisory, and
marketing services provided by the Dealer Manager pursuant to this Section 2(b).
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(c) The Company and the Dealer Manager agree that the Dealer
Manager is an independent contractor with respect to the solicitation of the
exercise of Rights and the performance of financial advisory and marketing
services for the Company contemplated by this Agreement.
(d) In rendering the services contemplated by this Agreement,
the Dealer Manager will not be subject to any liability to the Company or the
Manager or any of their affiliates, for any act or omission on the part of any
soliciting broker or dealer (except with respect to the Dealer Manager acting in
such capacity) or any other person, and the Dealer Manager will not be liable
for acts or omissions in performing its obligations under this Agreement, except
for any losses, claims, damages, liabilities and expenses that are finally
judicially determined to have resulted primarily from the bad faith, willful
misconduct or gross negligence of the Dealer Manager or by reason of the
reckless disregard of the obligations and duties of the Dealer Manager under
this Agreement.
3. Dealer Manager and Solicitation Fees. In full payment for
the financial advisory and marketing services rendered and to be rendered
hereunder by the Dealer Manager, the Company agrees to pay the Dealer Manager a
fee (the "Dealer Manager Fee") equal to 1.25% of the aggregate Subscription
Price for the Shares issued pursuant to the exercise of Rights and the
Over-Subscription Privilege. In full payment for the soliciting efforts to be
rendered hereunder, the Company agrees to pay fees (the "Solicitation Fees") to
either the Soliciting Dealer or the Dealer Manager equal to 2.50% of the
Subscription Price per Share for each Share issued pursuant to the exercise of
Rights and the Over-Subscription Privilege (such Solicitation Fees paid to the
Dealer Manager are in addition to the Dealer Manager Fee). The Company agrees to
pay the Solicitation Fees to the broker-dealer designated on the applicable
portion of the form used by the Holder to exercise Rights and the
Over-Subscription Privilege, provided that such broker-dealer has entered into a
Soliciting Dealer Agreement, and if no broker-dealer is so designated or a
broker-dealer is otherwise not entitled to receive compensation pursuant to the
terms of the Soliciting Dealer Agreement, then to pay the Dealer Manager the
Solicitation Fee for Shares issued pursuant to the exercise of Rights and the
Over-Subscription Privilege. Payment to the Dealer Manager by the Company will
be in the form of a wire transfer of same day funds to an account or accounts
identified by the Dealer Manager. Such payment will be made on each date on
which the Company issues Shares after the Expiration Date. Payment to a
Soliciting Dealer will be made
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by the Company directly to such Soliciting Dealer by check to an address
identified by such Soliciting Dealer. Such payments shall be made on the tenth
business day following the day of final payment for Shares as set forth in the
Prospectus.
4. Other Agreements.
(a) The Company covenants with the Dealer Manager as follows;
(i) The Company will use its best efforts to cause the
Registration Statement to become effective under the Securities Act,
and will advise the Dealer Manager promptly as to the time at which
the Registration Statement and any amendments thereto (including any
post-effective amendment) becomes so effective.
(ii) The Company will notify, and confirm the notice in
writing to, the Dealer Manager immediately (A) of the effectiveness of
the Registration Statement and any amendment thereto (including any
post-effective amendment), (B) of the receipt of any comments from the
Commission, (C) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, and (E) of the suspension of the qualification of the Shares
or the Rights for offering or sale in any jurisdiction. The Company
will make every reasonable effort to prevent the issuance of any stop
order described in subsection (D) hereunder and, if any such stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
(iii) The Company will give the Dealer Manager notice of its
intention to file any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement
to the Prospectus (including any revised prospectus which the Company
proposes for use by the Dealer Manager in connection with the Offer,
which differs from the prospectus on file at the Commission at the time
the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 497(c) or
Rule 497(h) of the Rules and Regulations), whether pursuant to the
Investment Company Act, the Securities Act, or otherwise, and will
furnish the Dealer Manager with copies of any
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such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement to which the Dealer Manager or counsel for the
Dealer Manager shall reasonably object.
(iv) The Company will, without charge, deliver to the Dealer
Manager, as soon as practicable, the number of copies (one of which is
manually executed) of the Registration Statement as originally filed
and of each amendment thereto as it may reasonably request, in each
case with the exhibits filed therewith.
(v) The Company will, without charge, furnish to the Dealer
Manager, from time to time during the period when the Prospectus is
required to be delivered under the Securities Act, such number of
copies of the Prospectus (as amended or supplemented) as the Dealer
Manager may reasonably request for the purposes contemplated by the
Securities Act or the Rules and Regulations.
(vi) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Dealer Manager,
to amend or supplement the Registration Statement or the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a Holder, the
Company will forthwith amend or supplement the Prospectus by preparing
and filing with the Commission (and furnishing to the Dealer Manager a
reasonable number of copies of) an amendment or amendments of the
Registration Statement or an amendment or amendments of or a supplement
or supplements to the Prospectus (in form and substance satisfactory to
counsel for the Dealer Manager), at the Company's expense, which will
amend or supplement the Registration Statement or the Prospectus so
that the Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a
Holder, not misleading.
(vii) The Company will endeavor, in cooperation with the
Dealer Manager and its counsel, to assist such counsel to qualify the
Rights and the Shares for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as the Dealer Managed may
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designate and maintain such qualifications in effect for the duration
of the Offer; provided, however, that the Company will not be obligated
to file any general consent to service of process, or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not now so qualified. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in
which the Rights and the Shares have been qualified as above provided.
(viii) The Company will make generally available to its
security holders as soon as practicable, but no later than 60 days
after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the Rules and
Regulations of the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective" date (as defined in said Rule 158) of
the Registration Statement.
(ix) For a period of 180 days from the date of this Agreement,
the Company will not, without the prior consent of the Dealer Manager,
offer or sell, or enter into any agreement to sell, any equity or
equity related securities of the Company or securities convertible into
such securities, other than the Rights and the Shares and the Common
Stock issued in reinvestment of dividends or distributions.
(x) The Company will apply the net proceeds from the Offer as
set forth under "Use of Proceeds" in the Prospectus.
(xi) The Company will use its best efforts to cause the Shares
to be duly authorized for listing by the New York Stock Exchange prior
to the time the Shares are issued.
(xii) The Company will use its best efforts to maintain its
qualification as a regulated investment company under Subchapter M of
the Code.
(xiii) The Company will advise or cause the Subscription Agent
to advise the Dealer Manager and each Soliciting Dealer from day to day
during the period of, and promptly after the termination of, the Offer,
as to the names and addresses of all Holders exercising Rights, the
total number of Rights exercised by each Holder during the immediately
preceding day, indicating the total number of
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Rights verified to be in proper form for exercise, rejected for
exercise and being processed and, for the Dealer Manager and each
Soliciting Dealer, the number of Rights exercised on subscription
certificates indicating the Dealer Manager or such Soliciting Dealer,
as the case may be, as the broker-dealer with respect to such exercise,
and as to such other information as the Dealer Manager may reasonably
request; and will notify the Dealer Manager and each Soliciting Dealer,
not later than 5:00 P.M., New York City time, on the first business day
following the Expiration Date, of the total number of Rights exercised
and Shares related thereto, the total number of Rights verified to be
in proper form for exercise, rejected for exercise and being processed
and, for the Dealer Manager and each Soliciting Dealer, the number of
Rights exercised on subscription certificates indicating the Dealer
Manager or such Soliciting Dealer, as the case may be, as the
broker-dealer with respect to such exercise, and as to such other
information as the Dealer Manager may reasonably request.
(b) None of the Company, the Manager, the Adviser or the
Sub-Adviser will take, directly or indirectly, any action designed to cause or
to result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the issuance of the Rights or the sale or resale of
the Shares; provided that any action in connection with the Company's dividend
reinvestment and cash purchase plan will not be deemed to be within the meaning
of this Section 4(b).
5. Payment of Expenses.
(a) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including, but not limited
to, expenses relating to (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Shares and
subscription certificates relating to the Rights, (iii) the fees and
disbursements of the Company's counsel (including the fees and disbursements of
local counsel) and accountants, (iv) the qualification of the Rights and the
Shares under securities laws in accordance with the provisions of Section
4(a)(vii) of this Agreement, including filing fees and the preparation of the
Blue Sky Survey by counsel to the Dealer Manager, (v) the printing or other
production and delivery to the Dealer Manager of copies of the Regis-
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tration Statement as originally filed and of each amendment thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
other production and delivery of copies of the Blue Sky Survey, (vii) the fees
and expenses incurred with respect to filing with the National Association of
Securities Dealers, Inc., (viii) the fees and expenses incurred in connection
with the listing of the Shares on the New York Stock Exchange, (ix) the printing
or other production, mailing and delivery expenses incurred in connection with
Offering Materials and (x) the fees and expenses incurred with respect to the
Information Agent.
(b) In addition to any fees that may be payable to the Dealer
Manager under this Agreement, the Company agrees to reimburse the Dealer Manager
upon request made from time to time for its reasonable expenses incurred in
connection with its activities under this Agreement, including the reasonable
fees and disbursements of its legal counsel (excluding Blue Sky fees and
expenses which are paid directly by the Company), in an amount up to $100,000.
(c) If this Agreement is terminated by the Dealer Manager in
accordance with the provisions of Section 6 or Section 9(a)(i), 9(a)(ii) or
9(a)(iii) , the Company agrees to reimburse the Dealer Manager for all of its
reasonable out-of-pocket expenses incurred in connection with its performance
hereunder, including the reasonable fees and disbursements of counsel for the
Dealer Manager. In the event the transactions contemplated hereunder are not
consummated, the Company agrees to pay all of the costs and expenses set forth
in paragraphs (a) and (b) of this Section 5 which the Company would have paid if
such transactions had been consummated.
6. Conditions of the Dealer Manager's Obligations. The
obligations of the Dealer Manager hereunder are subject to the accuracy of the
respective representations and warranties of the Company, the Manager, the
Adviser and the Sub-Adviser contained herein, to the performance by the Company,
the Manager, the Adviser and the Sub-Adviser of their respective obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York City time, on the Record Date, or at such later
time and date as may be approved by the Dealer Manager; the Prospectus and any
amendment or supplement thereto shall have been filed with the Commission in the
manner and within the time period required by Rule 497(c), (e),
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(h) or (j), as the case may be, under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company, the Adviser
or the Dealer Manager, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement, the Prospectus or
otherwise).
(b) On the Representation Date and the Expiration Date, the
Dealer Manager shall have received:
(1) The favorable opinions, dated the Representation Date and
the Expiration Date, of Xxxxxx & Xxxxx, counsel for the Company, in
form and substance satisfactory to counsel for the Dealer Manager to
the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland, has full corporate power and
authority to conduct its business as described in the
Registration Statement and the Prospectus, currently maintains
all governmental licenses, permits, consents, orders,
approvals, and other authorizations necessary under U.S. or
New York or Maryland state law to carry on its business as
contemplated in the Prospectus (except that counsel need
express no opinion as to securities or "blue sky" laws of any
state) and the Company is duly qualified to do business as a
foreign corporation in each jurisdiction wherein it owns or
leases real property or in which the conduct of its business
requires such qualification, except where the failure to be so
qualified would not result in a material adverse effect upon
the business, properties, financial position or results of
operations of the Company.
(ii) the Company is registered with the Commission
under the Investment Company Act as a closed-end,
non-diversified management investment company, to the best
knowledge of such counsel, no order of suspension or
revocation of such registration has been issued or proceedings
therefor initiated or threatened by the Commission, all
required action has been taken under the Securities Act and
the Investment Company Act to make the public offering
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24
and consummate the issuance of the Rights and the issuance and
sale of the Shares by the Company upon exercise of the Rights,
and the provisions of the Company's charter and by-laws comply
as to form in all material respects with the requirements of
the Investment Company Act.
(iii) the Company's authorized capitalization is as
set forth in the Prospectus; the outstanding shares of Common
Stock have been duly authorized and are validly issued, fully
paid and non-assessable and conform in all material respects
to the description thereof in the Prospectus under the heading
"Description of Capital Stock"; the Rights have been duly
authorized by all requisite action on the part of the Company
for issuance pursuant to the Offer; the Shares have been duly
authorized by all requisite action on the part of the Company
for issuance and sale pursuant to the terms of the Offer and,
when issued and delivered by the Company pursuant to the terms
of the Offer against payment of the consideration set forth in
the Prospectus, will be validly issued, fully paid and
non-assessable; the Shares and the Rights conform in all
material respects to all statements relating thereto contained
in the Registration Statement, the Prospectus and the other
Offering Materials; and the issuance of each of the Rights and
the Shares is not subject to any preemptive rights.
(iv) except as set forth in the Registration
Statement and Prospectus, to the best knowledge of such
counsel, there is no pending or threatened action, suit or
proceeding to which the Company is a party before or by any
U.S., New York or Maryland state court or governmental agency,
authority or body or any arbitrator, whether foreign or
domestic, which might result in any material adverse change in
the condition (financial or other), business prospects, net
worth or results of operations of the Company, or which might
materially and adversely affect the properties or assets
thereof of a character required to be disclosed in the
Registration Statement or the Prospectus.
(v) to the best knowledge of such counsel after due
inquiry of corporate officers, there are no franchises,
contracts or other documents of the Company required to be
described in the
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25
Registration Statement or the Prospectus, or to be filed or
incorporated by reference as exhibits which are not described
or filed or incorporated by reference therein as permitted by
the Securities Act, the Investment Company Act or the Rules
and Regulations.
(vi) each of the Company Agreements has been duly
authorized, executed and delivered by the Company; and
complies in all material respects with all applicable
provisions of the Investment Company Act; and each such
agreement, assuming due and valid authorization, execution and
delivery by the other parties thereto, constitutes a legal,
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to
the extent such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights and
general principles of equity and except to the extent that the
enforceability of the indemnification and contribution
provisions contained in this Agreement may be limited under
U.S. federal and state securities laws.
(vii) neither the issuance of the Rights, nor the
issuance and sale of the Shares, nor the performance and
consummation by the Company of any other of the transactions
contemplated in this Agreement nor the consummation of the
transactions contemplated in the Registration Statement will
conflict with or violate the charter or by-laws of the Company
or, to the best knowledge of such counsel, after due inquiry,
conflict with, result in a breach or violation of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company under the terms and
provisions of any agreement, indenture, mortgage, lease or
other instrument to which the Company is a party or by which
it may be bound or to which any of the property or assets of
the Company is subject, nor, to the best knowledge of such
counsel, will such action result in any violation of any
order, law, rule or regulation of any U.S., New York or
Maryland state court or governmental agency or body having
jurisdiction over the Company or any of its properties.
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26
(viii) no consent, approval, authorization,
notification or order of, or any filing with, any U.S., New
York or Maryland state court or governmental agency or body,
whether foreign or domestic, is required for the consummation
by the Company of the transactions contemplated by the Company
Agreements or the Registration Statement, except (A) such as
have been obtained and (B) such as may be required under the
blue sky laws of any jurisdiction in connection with the
transactions contemplated hereby.
(ix) the Common Stock has been duly listed on the New
York Stock Exchange and the Shares have been duly approved for
listing, subject to official notice of issuance, on the New
York Stock Exchange.
(x) the Registration Statement is effective under the
Securities Act; any required filing of the Prospectus or any
supplement thereto pursuant to Rule 497(c), (e), (h) or (j)
required to be made to the date hereof has been made in the
manner and within the time period required by Rule 497(c),
(e), (h) or (j), as the case may be; no stop order suspending
the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been
instituted or threatened; and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto
(other than the financial statements, the notes thereto and
the schedules and other financial and statistical data
contained therein or omitted therefrom, as to which such
counsel need express no opinion) as to their respective
effective or issue dates comply as to form in all material
respects with the applicable requirements of the Securities
Act and the Investment Company Act and the Rules and
Regulations.
(xi) the statements in the Prospectus under the
heading "Taxation" (other than those contained under
"Taxation -- Korean Taxes") fairly present the information
disclosed therein all material respects.
In rendering such opinion, such counsel may rely as to matters of Maryland law
on the opinion of Piper & Marbury L.L.P. and as to matters of fact, to the
extent they deem
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27
proper, on certificates of responsible officers of the Company and public
officials.
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, in the course of their review and discussion of the contents of the
Registration Statement and Prospectus with certain officers and employees of the
Company and its independent accountants, no facts have come to their attention
which cause them to believe that the Registration Statement, on the date it
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements contained therein not misleading or that the Prospectus, as of
its date and on the Representation Date or the Expiration Date, as the case may
be, contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(2) The favorable opinions, dated the Representation Date and
the Expiration Date, of Xxxxxx X. Xxxxxx, counsel for the Manager, in
form and substance satisfactory to counsel for the Dealer Manager to
the effect that:
(i) The Manager is duly registered as an investment
adviser under the Advisers Act and is not prohibited by the
Advisers Act or the Investment Company Act, or the rules and
regulations under such Acts, from acting as an investment
adviser for the Company as contemplated in the Prospectus.
(ii) Each of this Agreement and the Management
Agreement complies with all applicable provisions of the
Advisers Act and the Investment Company Act.
(iii) Except as set forth in the Registration
Statement and Prospectus, to the best knowledge of counsel,
there is no pending or threatened action, suit or proceeding
to which the Manager is a party before or by any U.S. or state
court or governmental agency, authority or body or any
arbitrator which might result in any material adverse change
in the Manager's condition (financial or other), business
pros-
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28
pects, net worth or operations or which might materially and
adversely affect the properties or assets thereof of a
character required to be disclosed in the Registration
Statement or Prospectus.
(iv) No consent, approval, authorization,
notification or order of, or any filing with, any U.S. or
state court or governmental agency or body is required for the
consummation by the Manager of the transactions contemplated
by this Agreement or the Management Agreement.
(v) Each of the Company Agreements to which the
Manager is a party has been duly authorized, executed and
delivered by the Manager, and, assuming due authorization,
execution and delivery by the other parties thereto, each of
the Company Agreements to which the Manager is a party
constitutes a legal, valid, binding and enforceable obligation
of the Manager subject to the qualification that the
enforceability of the obligations of the Manager thereunder
may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights.
(vi) The Manager has been duly incorporated and is
validly existing and in good standing under the laws of the
jurisdiction of its domicile, has full power and authority
(corporate and other) to own its properties and conduct its
business as described in the Registration Statement and the
Prospectus, and is duly qualified to do business as a foreign
corporation in each jurisdiction wherein it owns or leases
real property or in which the conduct of its business
requires such qualification, except where the failure to be
so qualified does not involve a material adverse risk to the
Manager's business, properties, financial position or
operations.
(vii) neither the performance by the Manager of its
obligations under this or the other Company Agreements to
which the Manager is a party nor the consummation of the
transactions contemplated therein or in the Registration
Statement nor the fulfillment of the terms thereof will
conflict with or violate the charter, by-laws or similar
organizational documents of the Manager to the best knowledge
of
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29
such counsel, after due inquiry, conflict with, result in a
breach or violation of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Manager under
the terms and provisions of any agreement, indenture,
mortgage, lease or other instrument to which the Manager is a
party or by which it may be bound or to which any of the
property or assets of the Manager is subject, nor will such
action result in any violation of any order, law, rule or
regulation of any U.S. or State court or governmental agency
or body, having jurisdiction over the Manager or any of its
properties.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Manager and public officials.
Such counsel shall also have stated that, while he has not
himself checked the accuracy and completeness of or otherwise verified, and is
not passing upon and assume no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the Prospectus, in
the course of his review and discussion of the contents of the Registration
Statement and Prospectus with certain officers and employees of the Manager and
its independent accountants, no facts have come to his attention which cause him
to believe that the Registration Statement, on the date it became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
contained therein not misleading or that the Prospectus, as of its date and on
the Representation Date or the Expiration Date, as the case may be, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(3) (a) The favorable opinions, dated the Representation Date
and the Expiration Date, of Xxxxxxxx & Worcester, U.S. counsel for the
Adviser, in form and substance satisfactory to counsel for the Dealer
Manager to the effect that:
(i) The Adviser is duly registered as an investment
adviser with the Commission under the Advisers Act and is not
prohibited by the Advisers Act or the Investment Company Act,
or
29
30
the rules and regulations under such Acts, from acting as an
investment adviser for the Company as contemplated in the
Prospectus, the Advisory Agreement and Sub-Advisory Agreement.
(ii) Each of this Agreement, the Advisory Agreement
and Sub-Advisory Agreement complies with all applicable
provisions of the Advisers Act and the Investment Company Act.
(iii) Except as set forth in the Registration
Statement and Prospectus, to the best knowledge of counsel,
there is no pending or threatened action, suit or proceeding
to which the Adviser is a party before or by any U.S. or state
court or governmental agency, authority or body or any
arbitrator which might result in any material adverse change
in the Adviser's condition (financial or other), business
prospects, net worth or operations or which might materially
and adversely affect the properties or assets thereof of a
character required to be disclosed in the Registration
Statement or Prospectus.
(iv) No consent, approval, authorization,
notification or order of, or any filing with, any U.S. or
state court or governmental agency or body is required for
the consummation by the Adviser of the transactions
contemplated by this Agreement, the Advisory Agreement or the
Sub-Advisory Agreement.
(v) Each of this Agreement, the Advisory Agreement
and the Sub-Advisory Agreement constitutes a legal, valid,
binding and enforceable obligation of the Adviser subject to
the qualification that the enforceability of the obligations
of the Adviser thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights.
(vi) Neither the performance by the Adviser of its
obligations under this Agreement, the Advisory Agreement or
the Sub-Advisory Agreement nor the consummation of the
transactions contemplated therein or in the Registration
Statement nor the fulfillment of the terms thereof will, to
the best knowledge of such counsel, after due inquiry,
conflict with, result in a breach or violation of, or consti-
30
31
tute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or
assets of the Adviser under the terms and provisions of any
agreement, indenture, mortgage, lease or other instrument to
which the Adviser is a party or by which it may be bound or to
which any of the property or assets of the Adviser is subject,
nor will such action result in any violation of any order,
law, rule or regulation of any U.S. or State court or
governmental agency or body, having jurisdiction over the
Adviser or any of its properties.
In rendering such opinion, such counsel may rely as to matters of Bermuda law on
the opinion of Xxxxxxx, Xxxx & Xxxxxxx, and matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Adviser and
public officials.
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, in the course of their review and discussion of the contents of the
Registration Statement and Prospectus with certain officers and employees of the
Adviser and its affiliates, no facts have come to their attention which cause
them to believe that the Registration Statement as it relates to the Adviser, on
the date it became effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements contained therein not misleading or that the Prospectus
as it relates to the Adviser, as of its date and on the Representation Date or
the Expiration Date, as the case may be, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The favorable opinions, dated the Representation Date and
the Expiration Date, of Xxxxxxx, Xxxx & Xxxxxxx, Bermuda counsel for
the Adviser, in form and substance satisfactory to counsel for the
Dealer Manager to the effect that:
(i) Except as set forth in the Registration Statement
and Prospectus, to the best knowledge of counsel, there is no
pending or threatened action, suit or proceeding to
31
32
which the Adviser is a party before or by any Bermuda court or
governmental agency, authority or body or any arbitrator which
might result in any material adverse change in the Adviser's
condition (financial or other), business prospects, net worth
or operations or which might materially and adversely affect
the properties or assets thereof of a character required to be
disclosed in the Registration Statement or Prospectus.
(ii) No consent, approval, authorization,
notification or order of, or any filing with, any Bermuda
court of governmental agency or body is required for the
consummation by the Adviser of the transactions contemplated
by this Agreement, the Advisory Agreement or the Sub-Advisory
Agreement.
(iii) Each of this Agreement, the Advisor Agreement
and the Sub-Advisor Agreement has been duly authorized,
executed and delivered by the Adviser, and assuming due
authorization, execution and delivery by the other parties
thereto, each of this Agreement, the Advisor Agreement and the
Sub-Advisor Agreement constitutes a legal, valid, binding and
enforceable obligation of the Adviser subject to the
qualification that the enforceability of the obligations of
the Adviser thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights.
(iv) The Adviser has been duly incorporated and is
validly existing and in good standing under the laws of the
jurisdiction of its domicile, has full power and authority
(corporate and other) to own its properties and conduct its
business as described in the Registration Statement and the
Prospectus, and the Adviser is duly qualified to do business
as a foreign corporation in each jurisdiction wherein it owns
or leases real property or in which the conduct of its
business requires such qualification, except where the failure
to be so qualified does not involve a material adverse risk
to its business, properties, financial position or results of
operations of the Adviser.
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33
(v) neither the performance by the Adviser of its
obligations under this or the other Company Agreements to
which the Adviser is a party nor the consummation of the
transactions contemplated therein or in the Registration
Statement nor the fulfillment of the terms thereof will
conflict with or violate the charter, by-laws or similar
organizational documents of the Adviser or, to the best
knowledge of such counsel, after due inquiry, conflict with,
result in a breach or violation of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the
Adviser under the terms and provisions of any agreement,
indenture, mortgage, lease or other instrument to which the
Adviser is a party or by which it may be bound or to which any
of the property or assets of the Adviser is subject, nor will
such action result in any violation of any order, law, rule or
regulation of any Bermuda court or governmental agency or
body, having jurisdiction over the Adviser or any of its
properties.
In rendering such opinion, such counsel may rely as to matters of U.S. law on
the opinion of Xxxxxxxx & Worcester, and matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Adviser and
public officials.
(c) The favorable opinions, dated the Representation Date and
the Expiration Date, of Xxxxxxxxx and May, Hong Kong counsel for the
Adviser, in form and substance satisfactory to counsel for the Dealer
Manager to the effect that:
(i) Except as set forth in the Registration Statement
and Prospectus, to the best knowledge of counsel, there is no
pending or threatened action, suit or proceeding affecting the
Adviser or to which the Adviser is a party before or by any
Hong Kong court or governmental agency, authority or body or
any arbitrator which might result in any material adverse
change in the Adviser's condition (financial or other),
business prospects, net worth or operations or which might
materially and adversely affect the properties or assets
thereof of a character required to be disclosed in the
Registration Statement or Prospectus.
33
34
(ii) No consent, approval, authorization,
notification or order of, or any filing with, any Hong Kong
court of governmental agency or body is required for the
consummation by the Adviser of the transactions contemplated
by this Agreement, the Advisory Agreement or the Sub-Advisory
Agreement.
(iii) Neither the performance by the Adviser of its
obligations under this or the other Company Agreements to
which the Adviser is a party nor the consummation of the
transactions contemplated therein or in the Registration
Statement nor the fulfillment of the terms thereof will, to
the best knowledge of such counsel, after due inquiry,
conflict with, result in a breach or violation of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Adviser under the terms and
provisions of any agreement, indenture, mortgage, lease or
other instrument to which the Adviser is a party or by which
it may be bound or to which any of the property or assets of
the Adviser is subject, nor will such action result in any
violation of any order, law, rule or regulation of any U.S. or
State court or governmental agency or body, having
jurisdiction over the Adviser or any of its properties.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Adviser and public officials.
(4) (a) The favorable opinions, dated the Representation Date
and the Expiration Date, of Xxxxxxxx & Worcester, U.S. counsel for the
Sub-Adviser, in form and substance satisfactory to counsel for the
Dealer Manager to the effect that:
(i) The Sub-Adviser is duly registered as an
investment adviser with the Commission under the Advisers Act
and is not prohibited by the Advisers Act or the Investment
Company Act, or the rules and regulations under such Acts,
from acting as an investment adviser for the Company as
contemplated in the Prospectus and the Sub-Advisory Agreement.
(ii) Each of this Agreement and the Sub-Advisory
Agreement complies with all applicable
34
35
provisions of the Advisers Act and the Investment Company Act.
(iii) Except as set forth in the Registration
Statement and Prospectus, to the best knowledge of counsel,
there is no pending or threatened action, suit or proceeding
to which the Sub-Adviser is a party before or by any U.S. or
state court or governmental agency, authority or body or any
arbitrator which might result in any material adverse change
in the Sub-Adviser's condition (financial or other), business
prospects, net worth or operations, or which might materially
and adversely affect the properties or assets thereof of a
character required to be disclosed in the Registration
Statement or Prospectus.
(iv) No consent, approval, authorization,
notification or order of, or any filing with, any U.S. or
state court or governmental agency or body is required for
the consummation by any of the Sub-Adviser of the transactions
contemplated by this Agreement or the Sub-Advisory Agreement.
(v) Each of this Agreement and the Sub-Advisory
Agreement constitutes a legal, valid, binding and enforceable
obligation of the Sub-Adviser subject to the qualification
that the enforceability of the obligations of the Sub-Adviser
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(vi) Neither the performance by the Sub-Adviser of
its obligations under this Agreement or the Sub-Advisory
Agreement nor the consummation of the transactions
contemplated therein or in the Registration Statement nor the
fulfillment of the terms thereof will, to the best knowledge
of such counsel, after due inquiry, conflict with, result in a
breach or violation of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Sub-Adviser
under the terms and provisions of any agreement, indenture,
mortgage, lease or other instrument to which the Sub-Adviser
is a party or by which it may be bound or to which any of the
property or assets of the Sub-Adviser is subject, nor will
35
36
such action result in any violation of any order, law, rule or
regulation of any U.S. or State court or governmental agency
or body, having jurisdiction over the Sub-Adviser or any of
its properties.
In rendering such opinion, such counsel may rely as to matters of Japanese law
on the opinion of Adachi, Henderson, Miyatake & Fujita, and matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Sub-Adviser and public officials.
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, in the course of their review and discussion of the contents of the
Registration Statement and Prospectus with certain officers and employees of the
Sub-Adviser and its affiliates, no facts have come to their attention which
cause them to believe that the Registration Statement as it relates to the
Sub-Adviser, on the date it became effective, contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements contained therein not misleading or
that the Prospectus as it relates to the Sub-Adviser, as of its date and on the
Representation Date or the Expiration Date, as the case may be, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(b) The favorable opinions, dated the Representation Date and
the Expiration Date, of Adachi, Henderson, Miyatake & Fujita, Japanese
counsel for the Sub-Adviser, in form and substance satisfactory to
counsel for the Dealer Manager, to the effect that:
(i) Except as set forth in the Registration Statement
and Prospectus, to the best knowledge of counsel, there is no
pending or threatened action, suit or proceeding to which the
Sub-Adviser is a party before or by any Japanese court or
governmental agency, authority or body or any arbitrator which
might result in any material adverse change in the condition
(financial or other), business pros-
36
37
pects, net worth or results of operations of the Sub-Adviser,
or which might materially and adversely affect the properties
or assets thereof of a character required to be disclosed in
the Registration Statement or Prospectus.
(ii) No consent, approval, authorization,
notification or order of, or any filing with, any Japanese
court or governmental agency or body is required for the
consummation by any of the Sub-Adviser of the transactions
contemplated by this Agreement or the Sub-Advisory Agreement.
(iii) Each of this Agreement and the Sub-Advisory
Agreement has been duly authorized, executed and delivered by
the Sub-Adviser, and, assuming due authorization, execution
and delivery by the other parties thereto, each of this
Agreement and the Sub-Advisory Agreement constitutes a legal,
valid, binding and enforceable obligation of the Sub-Adviser
subject to the qualification that the enforceability of the
obligations of the Sub-Adviser thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights.
(iv) The Sub-Adviser has been duly incorporated and
is validly existing under the laws of the jurisdiction of its
domicile, has full power and authority (corporate and other)
to own its properties and conduct its business as described in
the Registration Statement and the Prospectus.
(v) Neither the performance by the Sub-Adviser of its
obligations under this Agreement or the Sub-Advisory Agreement
nor the consummation of the transactions contemplated therein
or in the Registration Statement nor the fulfillment of the
terms thereof will conflict with or violate the Articles of
Incorporation, Regulation of the Board of Directors or similar
organizational documents of the Sub-Adviser to the best
knowledge of such counsel, after due inquiry, conflict with,
result in a breach or violation of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the
Sub-Adviser under the terms and provisions of any agreement,
37
38
indenture, mortgage, lease or other instrument to which the
Sub-Adviser is a party or by which it may be bound or to which
any of the property or assets of the Sub-Adviser is subject,
nor will such action result in any violation of any order,
law, rule or regulation of any Japanese court or governmental
agency or body, having jurisdiction over the Sub-Adviser or
any of its properties.
In rendering such opinion, such counsel may rely as to matters of U.S. law on
the opinion of Xxxxxxxx & Worcester, and matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Sub-Adviser
and public officials.
(5) The favorable opinions, dated the Representation Date and
the Expiration Date, of Shin and Xxx, Korean counsel for the Company,
the Manager, the Adviser and the Sub-Adviser, or the opinion of other
counsel of good standing who is satisfactory to counsel for the Dealer
Manager, in form and substance satisfactory to counsel for the Dealer
Manager, to the effect that:
(i) Except as set forth in the Registration Statement
and Prospectus, to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding to
which the Company is a party before or by any court or
governmental agency, authority or body or any arbitrator of
Korea which might result in any material adverse change in the
condition (financial or other), business prospects, net worth
or results of operations of the Company, or which might
materially and adversely affect the properties or assets
thereof of a character required to be disclosed in the
Registration Statement or the Prospectus.
(ii) Neither the issuance of the Rights, nor the
issuance and sale of the Shares, nor the performance and
consummation by the Company of any other of the transactions
contemplated in this Agreement nor the consummation of the
transactions contemplated in the Registration Statement will
conflict with, result in a breach or violation of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company under the
38
39
terms and provisions of any agreement, indenture, mortgage,
lease or other instrument to which the Company is a party or
by which it may be bound or to which any of the property or
assets of the Company is subject, nor will such action result
in any violation of any order, law, rule or regulation of any
court or governmental agency or body of Korea having
jurisdiction over the Company or any of its properties.
(iii) To the knowledge of such counsel, the Company
Agreements are still in full force and effect and, to such
counsel's knowledge, neither the Company nor any other party
to any such agreement is in default thereunder and, to the
knowledge of such counsel, no event has occurred which with
the passage of time or the giving of notice or both would
constitute a default thereunder. To the knowledge of such
counsel, the Company is not currently in breach of, or in
default under, any other written agreement or instrument to
which it or its property is bound or affected.
(iv) No consent, approval, authorization,
notification or order of, or any filing with, any court or
governmental agency or body of Korea is required for the
consummation by the Company of the transactions contemplated
by the Company Agreements or the Registration Statement,
except (A) such as have been obtained and (B) such as may be
required as disclosed in the Prospectus.
(v) The Company either owns or possesses all
governmental licenses, permits, consents, orders, approvals or
other authorizations under the laws of Korea to enable the
Company to continue to invest in securities of Korean Issuers
as contemplated in the Prospectus. Neither the execution or
delivery by the Company nor the performance by the Company of
any of its obligations under the Company Agreements
contravenes or constitutes a default under any provision
contained in any law, rule or regulation of any Korean
governmental or regulatory authority or any order or
regulation of any Korean court by which the Company or any of
its assets in Korea is bound or affected.
(vi) No taxes or charges of any kind are or will be
payable in or to Korea, or any political subdivision thereof,
by the Dealer
39
40
Manager with respect to the Dealer Manager Agreement or the
solicitation of the exercise of the Rights or the purchase or
sale of the Shares hereunder.
(vii) The statements in the Prospectus under the
heading "Taxation-Korean Taxes", insofar as such statements
describe or summarize Korean tax laws, treaties, doctrines or
practices, fairly summarize the matters therein described.
(viii) Neither the performance by the Manager, the
Adviser or the Sub-Adviser, as the case may be, of its
obligations under this or the other Company Agreements to
which the Manager, Adviser or Sub-Adviser, as the case may be,
is a party nor the consummation of the transactions
contemplated therein or in the Registration Statement nor the
fulfillment of the terms thereof will conflict with, result in
a breach or violation of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Manager, the
Adviser or the Sub-Adviser, as the case may be, under the
terms and provisions of any agreement, indenture, mortgage,
lease or other instrument to which the Manager, the Adviser or
the Sub-Adviser, as the case may be, is a party or by which it
may be bound or to which any of the property or assets of the
Manager, the Adviser or the Sub-Adviser, as the case may be,
is subject, nor will such action result in any violation of
any order, law, rule or regulation of any court or
governmental agency or body, whether foreign or domestic, of
Korea having jurisdiction over the Manager, the Adviser or the
Sub-Adviser, as the case may be, or any of its properties.
(ix) Except as set forth in the Registration
Statement and Prospectus, to the best knowledge of counsel,
there is no pending or threatened action, suit or proceeding
affecting the Manager, the Adviser or the Sub Adviser, as the
case may be, or to which the Manager, the Adviser or the Sub
Adviser, as the case may be, is a party before or by any court
or governmental agency, authority or body or any arbitrator of
Korea which might result in any material adverse change in the
condition (financial or other), business prospects, net worth
or re-
40
41
sults of operations of the Manager, the Adviser or the
Sub-Adviser, as the case may be, or which might materially and
adversely affect the properties or assets thereof of a
character required to be disclosed in the Registration
Statement or Prospectus.
(x) None of the Manager, the Adviser or the
Sub-Adviser require any governmental licenses, permits,
consents, orders, approvals or other authorizations under the
laws of Korea to enable the Manager, the Adviser or the
Sub-Adviser, as the case may be, to continue to direct
investments in securities of Korean companies as contemplated
in the Prospectus. Neither the execution or delivery by the
Manager, the Adviser or the Sub-Adviser, as the case may be,
nor the performance by the Manager, the Adviser or the
Sub-Adviser, as the case may be, of any of its obligations
under the Company Agreements to which Manager, the Adviser or
the Sub-Adviser, as the case may be, is a party will
contravene or constitute a default under any provision
contained in any law, rule or regulation of any Korean
governmental or regulatory authority or any order or
regulation of any Korean court by which the Manager, the
Adviser or the Sub-Adviser, as the case may be, or any of its
assets in Korea is bound or affected.
(xi) Except as disclosed in the Prospectus, no
consent, approval, authorization, notification or order of, or
any filing with, any court or governmental agency or body is
required under Korean law for the consummation by the Manager,
the Adviser or the Sub-Adviser, as the case may be, of the
transactions contemplated by this Agreement or Company
Agreements to which Manager, the Adviser or the Sub-Adviser,
as the case may be, is a party.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Company, the Manager, the Adviser, the Sub-Adviser and public officials.
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Regis-
41
42
tration Statement or the Prospectus, in the course of their review and
discussion of the contents of the Registration Statement and Prospectus with
certain officers and employees of the Company, the Manager, the Adviser, the
Sub-Adviser and its independent accountants, no facts have come to their
attention which cause them to believe that the Registration Statement, on the
date it became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements contained therein not misleading or that the Prospectus, as
of its date and on the Representation Date or the Expiration Date, as the case
may be, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Dealer Manager shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx, counsel for the Dealer Manager, such opinion or opinions,
dated the Representation Date and the Expiration Date, with respect to the
Offer, the Registration Statement, the Prospectus and other related matters as
the Dealer Manager may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Dealer Manager
certificates of the Company, signed by the Chairman of the Board, the President,
the Treasurer or a Vice President of the Company, dated the Representation Date
and the Expiration Date, to the effect that the signer(s) of such certificate
carefully examined the Registration Statement, the Prospectus, any supplement to
the Prospectus and this Agreement and that, to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Representation Date or the Expiration Date, as the case may be,
with the same effect as if made on the Representation Date or the
Expiration Date, as the case may be, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Representation Date or the
Expiration Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued
42
43
and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent balance sheet included
or incorporated by reference in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business, prospects, net worth or results of operations of
the Company (excluding fluctuations in the Company's net asset value
due to investment activities in the ordinary course of business),
except as set forth in or contemplated in the Prospectus.
(e) Each of the Manager, the Adviser and the Sub-Adviser shall
have furnished to the Dealer Manager certificates of the Manager, the Adviser
and the Sub-Adviser, as the case may be, signed by the Chairman, President,
Treasurer, Vice President or a Director, dated the Representation Date and the
Expiration Date, to the effect that the signer of such certificate has read the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and, to the best knowledge of such signer, the representations
and warranties of the Manager, the Adviser and the Sub-Adviser, as the case may
be, in this Agreement are true and correct in all material respects on and as of
the Representation Date or the Expiration Date, as the case may be, with the
same effect as if made on the Representation Date or the Expiration Date, as the
case may be.
(f) Price Waterhouse LLP shall have furnished to the Dealer
Manager letters, dated the Representation Date and the Expiration Date, in form
and substance satisfactory to the Dealer Manager and Price Waterhouse LLP, and
stating in effect that:
(i) they are independent accountants with respect to the
Company within the meaning of the Securities Act and the applicable
published Rules and Regulations;
(ii) in their opinion, the audited financial statements
examined by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the
Investment Company Act and the respective published Rules and
Regulations with respect to registration statements on Form N-2;
43
44
(iii) they have performed specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, including a reading of the latest available unaudited
financial information of the Company, a reading of the minute books of
the Company, inquiries of officials of the Company responsible for
financial and accounting matters and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that at a specified date not more than five business days prior to the
Representation Date, there was any change in the capital stock, any
decrease in net assets or any increase in long-term debt of the Company
as compared with amounts shown in the most recent statement of assets
and liabilities included or incorporated by reference in the
Registration Statement, except as the Registration Statement discloses
has occurred or may occur, or they shall state any specific changes,
increases or decreases;
(iv) in addition to the procedures referred to in clause (iii)
above, they have compared certain dollar amounts (or percentages as
derived from such dollar amounts) and other financial information
regarding the operations of the Company appearing in the Registration
Statement, which have previously been specified by the Dealer Manager
and which shall be specified in such letter, and have found such items
to be in agreement with, the accounting and financial records of the
Company.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been (i) any change, increase or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 6, or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the reasonable judgment of the Dealer Manager,
so material and adverse as to make it impractical or inadvisable to proceed with
the Offer as contemplated by the Registration Statement and the Prospectus.
(h) Prior to the Representation Date, the Company shall have
furnished to the Dealer Manager such further information, certificates and
documents as the Dealer Manager may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material
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respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all
material respects satisfactory in form and substance to the Dealer Manager and
its counsel, this Agreement and all obligations of the Dealer Manager hereunder
may be canceled at, or at any time prior to, the Representation Date by the
Dealer Manager. Notice of such cancellation shall be given to the Company in
writing or by telephone confirmed in writing.
7. Indemnification and Contribution.
(a) Each of the Company and the Manager, jointly and
severally, will indemnify and hold harmless the Dealer Manager, the directors,
officers, employees and agents of the Dealer Manager and each person, if any,
who controls the Dealer Manager within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act against any and all losses,
claims, damages and liabilities, joint or several (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Securities Act, the
Exchange Act, the Investment Company Act, the Advisers Act or other statutory
law or regulation, at common law or otherwise, whether foreign or domestic,
insofar as such losses, claims, damages or liabilities arise out of or are based
on any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, and any amendment or supplement
thereto, or the omission or alleged omission to state in any or all such
documents a material fact required to be stated therein or necessary to make the
statements in it not misleading (in the case of the Prospectus, in light of the
circumstances under which such statements were made), provided, however, that
neither the Company nor the Manager will be liable to the extent that such loss,
claim, damage or liability arises from an untrue statement or omission or
alleged untrue statement or omission (1) made in reliance on and in conformity
with information furnished in writing to the Company by the Dealer Manager
expressly for use in the document, or (2) if a copy of the Prospectus was not
sent or given to the purchaser of Shares at or before the written confirmation
of the sale to such person in any case where such delivery is required by the
Securities Act. This indemnity agreement will be in addition to any liability
that the Company or the Manager might otherwise have.
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(b) The Dealer Manager will indemnify and hold harmless the
Company and the Manager, the directors, officers and each person, if any, who
controls the Company or the Manager within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company or the Manager to the Dealer Manager, but
only insofar as losses, claims, damages or liabilities arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information furnished in writing to the
Company by the Dealer Manager expressly for use in preparation of the documents
in which the statement or omission is made or alleged to be made. This indemnity
agreement will be in addition to any liability that the Dealer Manager might
otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made, promptly notify each such indemnifying party in writing of the
commencement of such action, enclosing a copy of all papers served, but the
omission to so notify such indemnifying party will not, except to the extent set
forth below, relieve it from liability that it may have to any indemnified
party. No indemnification provided for in Section 7(a) or (b) hereof shall be
available to any party who shall fail to give notice as provided in this Section
7(c) if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to give
such notice, but the omission so to notify such indemnifying party of such
action shall not relieve it from any liability that it may have to any
indemnified party for contribution or otherwise on account of the provisions in
Section 7(a) or (b). If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in, and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and,
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense.
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The indemnified party will have the right to employ its counsel in any such
action, but the fees and expenses of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded that there may be legal defenses available to it
or other indemnified parties that are different from or in addition to those
available to the indemnifying party (in which case the indemnifying party will
not have the right to direct the defense of such action on behalf of the
indemnified party) or (3) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees and expenses of counsel will be at the expense of the
indemnifying party or parties. All such fees and expenses will be reimbursed
promptly as they are incurred upon submission in writing to the indemnifying
party with regard to any cost or expense for which the indemnified party is
seeking indemnification in such form and detail as the indemnifying party may
reasonably request. An indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent or, in connection
with any proceeding or related proceeding in the same jurisdiction, for the fees
and expenses of more than one separate counsel for all indemnified parties
except to the extent provided herein.
(d) In no case shall the indemnification provided in this
Section 7 be available to protect any person against any liability to which any
such person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its or his obligations or duties
hereunder, or by reason of its or his reckless disregard of its or his
obligations and duties hereunder.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is
applicable in accordance with its terms but for any reason is held to be
unavailable from the Company, the Manager or the Dealer Manager, the Company or
the Manager and the Dealer Manager will contribute to the total losses, claims,
damages and liabilities (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action or any claims asserted, but after deducting any contribution received
by the Company, the Manager or from persons other than the Dealer Manager, such
as persons who control the Company or the Manager within the meaning
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of the Securities Act or the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company, who may also be liable
for contribution) to which the Company, the Manager or the Dealer Manager may be
subject in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other hand from the offering of the Shares or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other hand in connection with the statements or omissions or alleged
statements or omissions that resulted in the losses, claims, damages or
liabilities, joint or several (including any investigation, legal or other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), for which
contribution is sought. The relative benefits received by the Company or the
Manager (treated jointly for this purpose as one person) on the one hand and the
Dealer Manager on the other hand shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses) received by the
Company bear to the total fees received by the Dealer Manager. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Manager or the Dealer Manager, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and any other equitable
considerations appropriate in the circumstances. Notwithstanding any other
provisions of this Section 7, (1) the Dealer Manager will not be responsible for
any amount in excess of the fees paid by the Company pursuant to Section 3
hereof and (2) no person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, any person who controls a
party to this Agreement within the meaning of the Securities Act will have the
same rights to contribution as that party, and each officer of the Company who
signed the Registration Statement and each director of the Company will have the
same rights to contribution as the Company, subject in each case to clause (i)
of the first sentence of this Subsection 7(e). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
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action against such party in respect of which a claim for contribution may be
made under this Section 7, notify such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have otherwise than under this Section 7. No party will be liable for
contribution with respect to any action or claim settled without its written
consent.
(f) The Company and the Manager agree to indemnify each
Soliciting Dealer and controlling persons to the same extent and subject to the
same conditions and to the same agreements, including with respect to
contribution, provided for in subsections (a), (b), (c), (d) and (e) of this
Section 7.
(g) The Company and the Manager acknowledge that the
statements under the caption "Distribution Arrangements" in the Prospectus
constitute the only information furnished in writing to the Company by the
Dealer Manager expressly for use in such document, and the Dealer Manager
confirms that such statements are correct.
8. Representations, Warranties and Agreements to Survive
Delivery. The respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers, of the Adviser and of the
Dealer Manager set forth in or made pursuant to this Agreement shall survive the
Expiration Date and will remain in full force and effect, regardless of any
investigation made by or on behalf of Dealer Manager or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Shares pursuant to the Offer.
The provisions of Sections 5 and 7 hereof shall survive the termination or
cancellation of this Agreement.
9. Termination of Agreement.
(a) This Agreement shall be subject to termination in the
absolute discretion of the Dealer Manager, by notice given to the Company prior
to the expiration of the Offer, if prior to such time (i) financial, political,
economic, currency, banking or social conditions in the United States or Korea
shall have undergone any material change the effect of which on the financial
markets makes it, in the Dealer Manager's judgment, impracticable or inadvisable
to proceed with the Offer, (ii) there has occurred any outbreak or material
escalation of hostilities or other calamity or crisis the
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50
effect of which on the financial markets of the United States or Korea is such
as to make it, in the Dealer Manager's judgment, impracticable or inadvisable to
proceed with the Offer, (iii) trading in the shares of Common Stock shall have
been suspended by the Commission or the New York Stock Exchange, (iv) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or (v) a banking moratorium shall have been declared either by Federal
or New York State authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 5.
10. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Dealer Manager, will be
mailed, delivered or telegraphed and confirmed to PaineWebber Incorporated, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or if sent to the Company or
the Manager, the Adviser or the Sub-Adviser, will be mailed, or delivered or
telegraphed and confirmed to them at: 00 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxx, Esq., Facsimile No.: (000) 000-0000
with a copy to Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Facsimile No.: 212-878-8375), attention of Xxxxxxxx X. Xxxxxx, Esq.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and will
inure to the benefit of the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligation hereunder.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York without reference
to choice of law principles thereof.
13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Company,
the Manager, the Adviser, the Sub-Adviser and the Dealer Manager.
Very truly yours,
Fidelity Advisor Korea Fund, Inc.
By:_________________________
Name:
Title:
Fidelity Management & Research Company
By:_________________________
Name:
Title:
Fidelity International Investment
Advisors
By:_________________________
Name:
Title:
Fidelity Investments Japan Limited
By:_________________________
Name:
Title:
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PaineWebber Incorporated
By:__________________
Name:
Title:
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53
Exhibit A
FIDELITY ADVISOR KOREA FUND, INC.
Rights Offering for Shares of Common Stock
SOLICITING DEALER AGREEMENT
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
December __, 1996.(1)
To Securities Dealers and Brokers:
Fidelity Advisor Korea Fund, Inc. (the "Company") is issuing
to its shareholders of record ("Record Date Shareholders") as of the close of
business on November __, 1996 (the "Record Date") non-transferable rights
("Rights") to subscribe for an aggregate of up to _______ shares of Common Stock
(the "Shares") of the Company upon the terms and subject to the conditions set
forth in the Company's Prospectus (the "Prospectus") dated November __, 1996
(the "Offer"). Each such Record Date Shareholder is being issued one Right for
each full share of Common Stock owned on the Record Date. The Rights entitle the
Record Date Shareholder, during the Subscription Period (as hereinafter defined)
to acquire at the Subscription Price (as hereinafter defined), one Share for
each ______ Rights held in the primary subscription. No fractional Shares will
be issued. The Subscription Price will be ____% of the lower of (i) the average
of the last reported sales price of a share of the Company's Common Stock on the
New York Stock Exchange on the date of the expiration of the Offer (the "Pricing
Date") and the four preceding business days and (ii) the net asset value per
share as of the Pricing Date. The Subscription Period will commence on November
__, 1996 and end on the Expiration Date. (With respect to the Offer, the term
"Expiration Date" means 5:00 p.m., New York City time, on December __, 1996,
unless and until the Company shall, in its sole discretion, have extended the
period for which the Offer is open, in which event the term "Expiration Date"
with respect to the Offer will mean the latest time and date on which the Offer,
as so extended by the Company, will expire.) Any Record Date Shareholder who
fully exercises all Rights issued to him is entitled to subscribe for Shares
which were not otherwise subscribed for by others on primary subscription (the
"Over-Subscription Privilege"). Shares acquired
----------
(1) Unless extended to a date no later than December __, 1996.
54
pursuant to the Over-Subscription Privilege are subject to allocation, as more
fully discussed in the Prospectus.
For the duration of the Offer, the Company has agreed to pay
Solicitation Fees to any qualified broker or dealer executing a Soliciting
Dealer Agreement who solicits the exercise of Rights in connection with the
Offer and who complies with the procedures described below (a "Soliciting
Dealer"). Upon timely delivery to State Street Bank and Trust Company, the
Company's Subscription Agent for the Offer, of payment for Shares purchased
pursuant to the exercise of Rights and of properly completed and executed
documentation as set forth in this Soliciting Dealer Agreement, a Soliciting
Dealer will be entitled to receive Solicitation Fees equal to 2.50% of the
Subscription Price per Share so purchased; provided, however, that no payment
shall be due with respect to the issuance of any Shares until payment therefor
is actually received. A qualified broker or dealer is a broker or dealer which
is a member of a registered national securities exchange in the United States or
the National Association of Securities Dealers, Inc. ("NASD") or any foreign
broker or dealer not eligible for membership who agrees to conform to the Rules
of Fair Practice of the NASD, including Sections 2730, 2740, 2420 and 2750
thereof, in making solicitations in the United States to the same extent as if
it were a member thereof.
The Company has agreed to pay the Solicitation Fees payable to
the undersigned Soliciting Dealer and to indemnify such Soliciting Dealer on the
terms set forth in the Dealer Manager Agreement, dated November __, 1996, among
PaineWebber Incorporated as the Dealer Manager, the Company and others (the
"Dealer Manager Agreement"). Solicitation and other activities by Soliciting
Dealers may be undertaken only in accordance with the applicable rules and
regulations of the Securities and Exchange Commission and only in those states
and other jurisdictions where such solicitations and other activities may
lawfully be undertaken and in accordance with the laws thereof. Compensation
will not be paid for solicitations in any state or other jurisdiction in which
the opinion of counsel to the Company or counsel to the Dealer Manager, such
compensation may not lawfully be paid. No Soliciting Dealer shall be paid
Solicitation Fees with respect to Shares purchased pursuant to an exercise of
Rights for its own account or for the account of any affiliate of the Soliciting
Dealer, except that the Dealer Manager shall receive the Solicitation Fees with
respect to Shares purchased pursuant to an exercise of Rights for its own
account provided that such Shares are offered and sold by the Dealer Manager to
its clients. No Soliciting Dealer or any other person is authorized by
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55
the Company or the Dealer Manager to give any information or make any
representations in connection with the Offer other than those contained in the
Prospectus and other authorized solicitation material furnished by the Company
through the Dealer Manager. No Soliciting Dealer is authorized to act as agent
of the Company or the Dealer Manager in any connection or transaction. In
addition, nothing herein contained shall constitute the Soliciting Dealers
partners with the Dealer Manager or with one another, or agents of the Dealer
Manager or of the Company, or create any association between such parties, or
shall render the Dealer Manager or the Company liable for the obligations of any
Soliciting Dealer. The Dealer Manager shall be under no liability to make any
payment to any Soliciting Dealer, and shall be subject to no other liabilities
to any Soliciting Dealer, and no obligations of any sort shall be implied.
In order for a Soliciting Dealer to receive Solicitation Fees,
the Subscription Agent must have received from such Soliciting Dealer no later
than 5:00 p.m., New York City time, on the Expiration Date, either (i) a
properly completed and duly executed Subscription Certificate with respect to
Shares purchased pursuant to the exercise of Rights and full payment for such
Shares; or (ii) a Notice of Guaranteed Delivery guaranteeing delivery to the
Subscription Agent by close of business on the third business day after the
Expiration Date, of (a) full payment for such Shares and (b) a properly
completed and duly executed Subscription Certificate with respect to Shares
purchased pursuant to the exercise of Rights. Solicitation Fees will only be
paid after receipt by the Subscription Agent of a properly completed and duly
executed Soliciting Dealer Agreement designating the Soliciting Dealer in the
applicable portion hereof. In the case of a Notice of Guaranteed Delivery,
Solicitation Fees will only be paid after delivery in accordance with such
Notice of Guaranteed Delivery has been effected. Solicitation Fees will be paid
by the Company to the Soliciting Dealer by check to an address designated by the
Soliciting Dealer below by the tenth business day after final payment for Shares
as set forth in the Prospectus.
All questions as to the form, validity and eligibility
(including time of receipt) of this Soliciting Dealer Agreement will be
determined by the Company, in its sole discretion, which determination shall be
final and binding. Unless waived, any irregularities in connection with a
Soliciting Dealer Agreement or delivery thereof must be cured within such time
as the Company shall determine. None of the Company, the Dealer Manager, the
Subscription Agent, the Information Agent for the
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56
Offer, X.X. Xxxx & Co. Inc. or any other person will be under any duty to give
notification of any defects or irregularities in any Soliciting Dealer Agreement
or incur any liability for failure to give such notification.
The acceptance of Solicitation Fees from the Company by the
undersigned Soliciting Dealer shall constitute a representation by such
Soliciting Dealer to the Company that: (i) it has received and reviewed the
Prospectus; (ii) in soliciting purchases of Shares pursuant to the exercise of
the Rights, it has complied with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the applicable rules and
regulations thereunder, any applicable securities laws of any state or
jurisdiction where such solicitations were made, and the applicable rules and
regulations of any self-regulatory organization or registered national
securities exchange; (iii) in soliciting purchases of Shares pursuant to the
exercise of the Rights, it has not published, circulated or used any soliciting
materials other than the Prospectus and any other authorized solicitation
material furnished by the Company through the Dealer Manager; (iv) it has not
purported to act as agent of the Company or the Dealer Manager in any connection
or transaction relating to the Offer; (v) the information contained in this
soliciting Dealer Agreement is, to its best knowledge, true and complete; (vi)
it is not affiliated with the Company; (vii) it will not accept Solicitation
Fees paid by the Company pursuant to the terms hereof with respect to Shares
purchased by the soliciting Dealer pursuant to an exercise of Rights for its own
account; (viii) it will not remit, directly or indirectly, any part of
Solicitation Fees paid by the Company pursuant to the terms hereof to any
beneficial owner of Shares purchased pursuant to the Offer; and (ix) it has
agreed to the amount of the Solicitation Fees and the terms and conditions set
forth herein with respect to receiving such Solicitation Fees. By returning a
Soliciting Dealer Agreement and accepting Solicitation Fees, a Soliciting Dealer
will be deemed to have agreed to indemnify the Company and the Dealer Manager
against losses, claims, damages and liabilities to which the Company may become
subject as a result of the breach of such Soliciting Dealer's representations
made herein and described above. In making the foregoing representations,
Soliciting Dealers are reminded of the possible applicability of Rule 10b-6
under the Exchange Act if they have bought, sold, dealt in or traded in any
Shares for their own account since the commencement of the Offer.
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57
Upon expiration of the Offer, no Solicitation Fees will be
payable to Soliciting Dealers with respect to Shares purchased thereafter.
Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Dealer Manager Agreement or, if not defined
therein, in the Prospectus.
This Soliciting Dealer Agreement will be governed by the laws
of the State of New York.
Please execute this Soliciting Dealer Agreement below
accepting the terms and conditions hereof and confirming that you are a member
firm of the NASD or a foreign broker or dealer not eligible for membership who
has conformed to the Rules of Fair Practice of the NASD, including Sections
2730, 2740, 2420 and 2750 thereof, in making solicitations of the type being
undertaken pursuant to the Offer in the United States to the same extent as if
you were a member thereof, and certifying that you have solicited the purchase
of the Shares pursuant to exercise of the Rights, all as described above, in
accordance with the terms and conditions set forth in this Soliciting Dealer
Agreement. Please forward two executed copies of this Soliciting Dealer
Agreement to Fidelity Advisor Korea Fund, Inc., x/x Xxxxxx X. Xxxxxx, Xxx. (Tel.
No.: (000) 000-0000; Facsimile No.: (000) 000-0000). A signed copy of this
Soliciting Dealer Agreement will be promptly returned to the Soliciting Dealer
at the address set forth below.
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Very truly yours,
PaineWebber Incorporated
By:____________________________
Name:
Title:
ACCEPTED AND CONFIRMED BY SOLICITING DEALER
_______________________________ _______________________________
Printed Firm Name Address
_______________________________ _______________________________
Authorized Signature Area Code and Telephone Number
_______________________________
Name and Title
Dated: ________________________
Payment of the Solicitation Fee shall be mailed by check to the following
address:
Names of Bank or
other Recipient
Institution: __________________
Address: ____________________
Attention: ____________________
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