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Exhibit 2(d)7
[X.X. Xxxx & Co., Inc. Letterhead]
November , 1996
Fidelity Advisor Korea Fund, Inc.
00 Xxxxxxxxxx Xxxxxx
X0X
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Assistant Secretary
Gentlemen:
This Letter Agreement sets forth the terms and conditions pursuant to
which Fidelity Advisor Korea Fund, Inc. (the "Company") has retained X.X. Xxxx &
Co., Inc. ("King") in connection with a proposed rights offering.
The Company proposes to issue to its shareholders of record
non-transferable rights ("Rights") entitling the holders thereof to subscribe
for shares of the Fund's Common Stock, par value $0.001 per share (the "Shares")
(the "Rights Offering"), upon the terms and subject to the conditions set forth
in the Company's Prospectus.
1. The Company hereby retains King as Information Agent for advisory
and consulting services in connection with the Rights Offering. The services to
be performed by King will include: (a) advice and consultation to the Company in
connection with the Rights Offering; (b) delivery of printed materials relating
to the Rights Offering including all amendments and supplements thereto
(collectively the "Rights Offering Materials") to the Fund's shareholders of
record and their nominees as requested; (c) responding to requests for
information pertaining to the Rights Offering; and (d) providing information
pertaining to the Rights Offering to any party requesting such information. In
connection with the aforementioned services, King is authorized to use the
Rights Offering Materials which the Company shall supply to King in sufficient
quantities as requested by King. In no event shall King make any recommendation,
either directly or indirectly, to anyone regarding the disposition of the Rights
issued pursuant to the Rights Offering. If such advice is requested of King,
King shall respond that it is not authorized to provide such advice and shall
recommend that the person requesting such advice consult his or her investment
advisor or broker.
2. The Company agrees to pay to King, as compensation for its services
as Information Agent, a fee of $5,000, of which $2,500 shall be due and payable
upon the execution and delivery of this Agreement and the balance of which shall
be due upon the completion, termination or abandonment, as the case may be, of
the Rights Offering. Further,
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Fidelity Investments
November , 1996
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the Company agrees to pay King $3.00 for each completed outgoing telephone
contact, plus line charges, and $3.00 for each incoming telephone contact, each
in connection with the Rights Offering. In the event the Company requests Xxxx
to provide additional services, the Company agrees to pay King reasonable and
customary compensation, in an amount, if any, to be mutually agreed upon. The
Company further agrees to promptly reimburse King for all out-of-pocket expenses
(including counsel's fees and disbursements) incurred by King acting in its
capacity as Information Agent after the execution and delivery of this Agreement
and during the Rights Offering. The Company agrees and acknowledges that its
obligation under this paragraph 2 shall not in any way be conditioned upon the
commencement or successful consummation of the Rights Offering or dependent upon
the number of Shares subscribed for in the Rights Offering.
3. The Company agrees that King shall have the right to pass upon and
approve any and all references to King in the Rights Offering Materials. The
Company shall not file with the Securities and Exchange Commission (the
"Commission"), any other governmental or regulatory authority or body or any
court, or otherwise make public, any document containing any reference to King
unless and until King shall have approved such reference.
4. The Company represents and warrants to King that:
(i) this letter agreement is a valid and binding agreement on the
Company;
(ii) all necessary corporate action will be duly taken by the
Company prior to the commencement of the Rights Offering to
authorize the Rights Offering, and the sale of the Shares in
connection with the Rights Offering;
(iii) the Rights Offering, and the sale of the Shares in connection
with the Rights Offering, will comply in all material respects
with all applicable requirements of law including any
applicable rules or regulations of any governmental or
regulatory authority or body, and no consent or approval of,
or filing with, any governmental or regulatory authority or
body is required in connection with the making or consummation
of the Rights Offering (or, if any such consent, approval or
filing is required it will be duly obtained or made prior to
the commencement of the Rights Offering); and
(iv) the Rights Offering, the sale of the Shares in connection with
the Rights Offering, and the execution, delivery and
performance of this letter agreement, will not conflict with
or result in a breach of or constitute a default under: (a)
the Company's articles of incorporation or bylaws; or
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Fidelity Investments
November , 1996
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(b) any agreement, indenture, mortgage, note or other instrument by
which the Company is bound other than such breaches and defaults
that do not, individually or in the aggregate, have a material
adverse effect on the operations of the Company.
5. The Company shall inform Xxxx promptly of the occurrence of any
event which would cause the Company not to proceed with, or to withdraw or
abandon, the Rights Offering. The Company shall inform Xxxx promptly of any
proposal or requirement to amend or supplement any of the Rights Offering
Materials.
6. (a) King agrees to indemnify and hold harmless the Company from any
and all direct or indirect liabilities or losses resulting from requests,
directions, actions or inactions, of or by King or its officers, employees or
agents regarding this Agreement; provided, however, that such duty to indemnify
and hold harmless shall not apply to liabilities or losses occasioned by or
resulting from the gross negligence or willful misconduct of the Company or any
of its employees or agents. Such duty to indemnify and hold harmless shall
survive the termination of this Agreement.
(b) The Company agrees to indemnify and hold King harmless from any
and all direct or indirect liabilities or losses arising from any legal action
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Company's prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
such duty to indemnify and hold harmless shall not apply to liabilities or
losses occasioned by or resulting from the gross negligence or willful
misconduct of King or any of its employees or agents. Such duty to indemnify and
hold harmless shall survive the termination of this Agreement.
(c) The indemnifying party shall not be liable for indemnification
under this Section 6 unless the party seeking indemnification shall have
notified the indemnifying party in writing of the commencement of any litigation
or proceeding in respect of which indemnity may be sought under this Section 6.
With respect to claims in such litigation or proceedings for which indemnify may
be sought, the indemnifying party shall be entitled to participate in any such
litigation or proceeding and the indemnifying party shall be entitled to assume
the defense of such litigation or proceeding with counsel of their choice at
their own expense in respect of that portion of the litigation for which the
indemnifying party may be subject to an indemnification obligation. If the
indemnifying party is not permitted to participate or control such litigation or
proceeding under applicable law or by a ruling of a court of competent
jurisdiction or otherwise, the party seeking indemnification shall reasonably
prosecute such litigation or proceeding. In no event shall the party seeking
indemnification consent to the entry of any judgment or enter into any
settlement in any such litigation or proceeding (including any
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Fidelity Investments
November , 1996
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threatened litigation or proceeding) without providing the indemnifying party
with adequate notice of any such settlement or judgment, and without the
indemnifying party's prior written consent. The party seeking indemnification
shall submit written evidence to the indemnifying party with respect to any cost
or expense for which the party seeking indemnification is seeking
indemnification in such form and detail as the indemnifying party may reasonably
request.
7. The representations and warranties contained in paragraph 4 above
and the indemnity agreement contained in paragraphs 6 and 7 above shall remain
operative and in full force and effect regardless of: (i) the termination of
consummation of the Rights Offering; and (ii) any investigation made by or on
behalf of any party.
8. This agreement shall be construed and enforced in accordance with
the laws of the State of New York.
9. If any provision of this agreement shall be held illegal or
invalid by any court, this agreement shall be construed and enforced as if such
provision had not been contained herein and shall be deemed an agreement between
the parties hereto to the fullest extent permitted by law.
If the foregoing correctly sets forth the understanding between the
Company and King, please indicate acceptance thereof in the space provided below
for the purpose, whereupon this letter and the Company's acceptance shall
constitute a binding agreement between the parties hereto.
X. X. Xxxx & Co., Inc.
By:__________________________________
Xxxxxxx X. Xx Xxxxx
Senior Vice President
Accepted as of the date first above written:
FIDELITY ADVISOR KOREA FUND, INC.
By:___________________________________
Title:________________________________
