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Exhibit h.(i)
DEALER MANAGER AGREEMENT
___________, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Korea Fund Inc., a corporation formed under the laws of the
State of Maryland (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a corporation formed
under the laws of the State of Delaware ("▇▇▇▇▇ ▇▇▇▇▇▇"), confirm their
agreement, subject to the terms and conditions set out below, with respect to
the proposed issuance by the Company to its shareholders of rights entitling
their holders to subscribe for shares of the Company's Common Stock, par value
$.01 per share.
1. DEFINITIONS
The following terms have the following meanings when used in this
Agreement:
(a) "Acts" means the Securities Act and the Investment Company Act
collectively.
(b) "Agreement" means this Dealer Manager Agreement as originally executed
and as amended, modified, supplemented or restated from time to time.
(c) "Availability Date" has the meaning set forth in Section 8(d) of this
Agreement.
(d) "Business Day" means any day on which the NYSE is open for trading.
(e) "Code" means the U.S. Internal Revenue Code of 1986, as amended.
(f) "Commission" means the U.S. Securities and Exchange Commission.
(g) "Common Stock" means the Company's Common Stock, par value $.01 per
share.
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(h) "Custodian" means ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co.
(i) "Custodian Agreement" means the Custodian Agreement, dated
____________, between the Company and the Custodian.
(j) "Effective Date" means the date of the Effective Time.
(k) "Effective Time" has the meaning set forth in Section 4(a) of this
Agreement.
(l) "Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
(m) "Exercising Rights Holders" means Record Date Shareholders and Rights
Holders purchasing Shares in the Primary Subscription.
(n) "Expiration Date" means April __, 1997.
(o) "Investment Advisers Act" means the U.S. Investment Advisers Act of
1940, as amended.
(p) "Investment Company Act" means the U.S. Investment Company Act of
1940, as amended.
(q) "Korea" means the Republic of Korea.
(r) "Korean Adviser" means _______________Daewoo Capital Management Co.,
Ltd.
(s) "Manager" means ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., the Company's
investment adviser and manager.
(t) "Management Agreement" means the Investment Advisory, Management and
Administration Agreement, dated [as of] October 13, 1994, between the Company
and the Manager.
(u) "NYSE" means the New York Stock Exchange, Inc.
(v) "Offer" means the offer of Shares contemplated by the Company's
proposed issuance of Rights.
(w) "OSE" means the Osaka Stock Exchange.
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(x) "Primary Subscription" means a Record Date Shareholder's right to
acquire Shares during the Subscription Period at the Subscription Price.
(y) "Prospectus" means collectively the forms of prospectus and statement
of additional information as first filed with the Commission pursuant to and in
accordance with rule 497(h) under the Securities Act or (if no such filing is
required) as included in the Registration Statement.
(z) "PSE" means the Pacific Stock Exchange.
(aa) "Record Date" means April __, 1997.
(bb) "Record Date Shareholders" means the Company's shareholders of record
as of the close of business on the Record Date.
(cc) "Registration Statement" means the registration statement relating to
the Offer on Form N-2 (File Nos. 333-________ and 811-4058) under the Acts, as
amended at the Effective Time, including all information (if any) deemed to be a
part of such registration statement as of the Effective Time pursuant to Rule
430A(b) under the Securities Act, filed by the Company with the Commission.
(ee) "Research Agreement" means the Research and Advisory Agreement, dated
___________, between the Manager and the Korean Adviser.
(ff) "Rights" means the right proposed to be issued by the Company to
Record Date Shareholders, which rights entitle their holders to subscribe for
Shares.
(gg) "Rights Holders" means the holders of Rights.
(hh) "Rules and Regulations" means the rules and regulations adopted by
the Commission under the Securities Act and/or the Investment Company Act.
(ii) "Securities Act" means the U.S. Securities Act of 1933, as amended.
(jj) "Shares" means an aggregate of up to _________ shares of Common Stock
for which Rights Holders may subscribe.
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(kk) "Subscription Agent" means State Street Bank and Trust Company.
(ll) "Subscription Agent Agreement" means the Subscription Rights
Distribution and Agency Agreement, dated as of _____________ , between the
Company and the Subscription Agent.
(mm) "Subscription Period" means the period of time beginning on
__________, 1997 and ending at 5:00 p.m., New York City time, on the Expiration
Date.
(nn) "Subscription Price" means the Subscription Price per Share of
$_____.
2. THE OFFER
The Company is proposing to issue Rights to Record Date
Shareholders, which Rights entitle their holders to subscribe for Shares. Under
the Company's proposal, each Record Date Shareholder will be issued one Right
for each full share of Common Stock owned on the Record Date. No fractional
Rights will be issued. The rights will entitle each Record Date Shareholder to
acquire in the Primary Subscription at the Subscription Price one Share for each
three Rights held, except that any Record Date Shareholder who is issued fewer
than three Rights will be able to subscribe for one full Share at the
Subscription Price. All Rights will be able to be exercised immediately upon
receipt and until 5:00 p.m., New York City time, on the Expiration Date. Any
Record Date Shareholder who fully exercises all Rights initially issued to him
(other than those Rights that cannot be exercised because they represent the
right to acquire less than one Share) will be entitled to subscribe for, subject
to allotment, Shares that are not otherwise subscribed for by Exercising Rights
Holder son the Primary Subscription. Additional terms and conditions of the
Offer are set out in the Registration Statement.
3. APPOINTMENT OF DEALER MANAGER
The Company appoints ▇▇▇▇▇ ▇▇▇▇▇▇ as the exclusive dealer manager in
connection with the Offer and ▇▇▇▇▇ ▇▇▇▇▇▇ accepts that appointment. The Company
also authorizes ▇▇▇▇▇ ▇▇▇▇▇▇ to form and manage a group of securities dealers
(each, a "Selling Group Member," and,
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collectively, the "Selling Group") to solicit the exercise of Rights and sell
Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ from the Company through the exercise of
Rights. ▇▇▇▇▇ ▇▇▇▇▇▇ represents and warrants that it is a broker-dealer
registered under the Exchange Act.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, ▇▇▇▇▇
▇▇▇▇▇▇ that:
(a) A registration statement (File Nos. 333-_______ and 811-4058)
including a form of prospectus relating to the Offer has been filed with the
Commission and either (i) has been declared effective under the Securities Act
and is not proposed to be amended or (ii) is proposed to be amended by amendment
or post-effective amendment. If the Company does not propose to amend such
registration statement and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent such amendment has been declared effective by
the Commission. For purposes of this Agreement, "Effective Time" means (i) if
the Company has advised ▇▇▇▇▇ ▇▇▇▇▇▇ that is does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission, or (ii) if the Company has advised ▇▇▇▇▇ ▇▇▇▇▇▇ that it proposes
to file an amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared effective
by the Commission.
(b) If the Effective Time is prior to the execution and delivery of this
Agreement: (i) on the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Acts and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus pursuant to Rule
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497(h) under the Securities Act, the Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Acts and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time is subsequent to the execution an delivery of
this Agreement: on the Effective Date, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Acts and the
Rules and Regulations, and neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading.
The two preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information furnished to
the Company by ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein.
(c) Coopers & ▇▇▇▇▇▇▇ L.L.P., whose report appears in the Prospectus, are
independent accountants as required by the Acts and the Rules and Regulations
with respect to the Company. The financial statements and financial highlights
(including the related notes) included in the Registration Statement or the
Prospectus present fairly the financial position, results of operations, changes
in net assets and financial highlights of the Company at the dates and for the
periods indicated therein and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with full
power and authority to own or lease its properties and conduct its business as
described in the Prospectus and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the character of
the business conducted by it or the location of the properties owned or leased
by it make such qualification necessary.
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(e) All of the outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof; the Offer, the Rights and
the Shares have been duly authorized, and the Rights and the Shares, upon
issuance and delivery and, in the case of the Shares, payment therefor, as
described in the Registration Statement and the Prospectus, will be validly
issued, fully paid and nonassessable, with no personal liability attaching to
the ownership thereof. Except for the Rights, there are no preemptive rights or
other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, any shares of Common Stock (including the Shares) pursuant to
the Company's Articles of Incorporation, by-laws or other governing documents or
any agreement or other instrument to which the Company is a party or by which it
may be bound. Neither the filing of the Registration Statement nor the Offer as
contemplated by this Agreement and the Subscription Agent Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of Common Stock or other securities
of the Company. The capitalization of the Company as of __________, 1997 is as
set forth in the Prospectus, and the Rights and the Shares conform to the
descriptions thereof contained in the Prospectus.
(f) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or
adverse development which materially affects, the condition (financial or
other), results of operation, business or prospects, of the Company from the
date as of which information is given in the Prospectus.
(g) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company is a party or to which any property
of the Company is subject or which is pending or, to the knowledge of the
Company, contemplated against the Company which might result in any material
adverse change in the condition (financial or other), results of operations,
business or prospects of the Company or which is required to be disclosed in the
Prospectus.
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(h) The Company is not in violation of any law, ordinance, governmental
rule or regulation or court decree to which it may be subject which violation
might have a material adverse effect on the condition (financial or other),
results of operation, business or prospects of the Company.
(i) The Subscription Agent Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Subscription Agent, constitutes the valid and binding agreement
of the Company and is enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization or
other laws relating to or affecting creditors' rights and to general equity
principles.
(j) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and binding agreement of the Company, and is
enforceable against the Company in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws relating to
or affecting creditors' rights and to general equitable principles.
(k) The Company is not, or with the giving of notice or lapse of time or
both would not be, in violation of or in default under, nor will the execution
or delivery hereof and of the Subscription Agent Agreement or consummation of
the transactions contemplated hereby or by the Subscription Agent Agreement,
including, without limitation, the distribution of the Rights and the allotment,
issue and sale of the Shares, result in a violation of, or constitute a default
under, the Articles of Incorporation or by-laws of the Company, or any
agreement, indenture or other instrument, to which the Company is a party or by
which it is bound, or to which any of its properties is subject, nor will the
performance by the Company of its obligations hereunder or under the
Subscription Agent Agreement violate any law, rule, administrative regulation or
decree of any court, or any governmental agency or body having jurisdiction over
the Company, or any of its properties, or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the
Company. Except for permits and similar authorizations required under the
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Acts and the securities or "Blue Sky" laws of certain jurisdictions and for such
permits and authorization which have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or financial
institution is required in connection with the consummation of the transactions
contemplated by this Agreement or the Subscription Agent Agreement.
(l) The Rights are duly authorized for listing, subject to official notice
of issuance, on the NYSE and are, or as soon as practicable after the date of
this Agreement, will be, admitted to trading on the NYSE.
(m) The Shares are duly authorized for listing, subject to official notice
of issuance, on each of the NYSE, the OSE and the PSE and, as soon as
practicable after the date of this Agreement, will be admitted to trading on
each of the NYSE, the OSE and the PSE.
(n) The Company has not taken and shall not take, directly or indirectly,
any action designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of the shares of Common Stock to facilitate the Offer, provided that
the Company makes no representation with respect to any transactions by ▇▇▇▇▇
▇▇▇▇▇▇ or any other broker or dealer unaffiliated with Company, the Manager or
the Korean Adviser to stabilize the price of the shares of Common Stock in
connection with the Offer.
(o) The Company is duly registered with the Commission under the
Investment Company Act as a closed-end non-diversified management investment
company.
(p) Any required approval by the Korean Government, including any required
approval by the Minister of Finance and Economy of Korea under the Fund's
license to invest in Korean securities, of the offering, and confirmation of
applicability of the United States-Korea Income Tax Treaty (the "Treaty") have
been obtained and have not been rescinded or modified.
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5. REPRESENTATIONS AND WARRANTIES OF THE MANAGER
The Manager represents and warrants to, and agrees with, ▇▇▇▇▇
▇▇▇▇▇▇ that:
(a) The Manager has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with corporate power
and authority to conduct its business as described in the Prospectus.
(b) The Manager is duly registered as an investment adviser under the
Investment Advisers Act and is not prohibited by the Investment Advisers Act or
the Investment Company Act, or the rules and regulations under such acts, from
acting as Manager for the Company as contemplated by the Prospectus.
(c) This Agreement has been duly authorized, exe-
cuted and delivered by the Manager.
(d) The Manager Agreement and the Research Agreement have each been duly
authorized, executed and delivered on behalf of the Manager and each constitutes
a valid and binding obligation of the Manager enforceable in accordance with its
terms, subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization or of the laws relating to or affecting creditors' rights
generally and to general equity principles; and neither the execution and
delivery of this Agreement, the Management Agreement or the Research Agreement
nor the performance by the Manager of its obligations thereunder will conflict
with or result in a breach or violation of any other terms and provisions of the
charter or By-laws of the Manager or any law, order, rule or regulation
applicable to the Manager of any United States jurisdiction, court, federal or
state regulatory body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the Manager or its
properties or operations, or, to the best knowledge of the Manager after
reasonable investigation, constitute, with or without giving notice or lapse of
time or both, a default under, any agreement or instrument to which the Manager
is a party or by which the Manager or to which any of the properties of the
Manager is subject.
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(e) All written information furnished by the Manager specifically for use
in the Registration Statement and Prospectus, including, without limitation, the
description of the Manager, does not, and on the Expiration Date will not,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the Registration Statement and Prospectus not misleading.
(f) There has not, since the date of the Prospectus, been any material
adverse change, or any development reasonably likely to cause a material adverse
change, in the Manager's ability to perform its obligations under this Agreement
or under the Manager Agreement.
6. SOLICITATION OF RIGHTS EXERCISE; FINANCIAL ADVISORY SERVICES
(a) On the basis of the representations and warranties, and subject to the
terms and conditions, set forth in this Agreement:
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to (A) solicit, in accordance with the Acts,
the Exchange Act, the Rules and Regulations and its customary practice,
the exercise of the Rights, subject to the terms and conditions of this
Agreement, the Subscription Agent Agreement and the procedures described
in the Registration Statement; and (B) form and manage the Selling Group
to (i) solicit, in accordance with the Acts, the Exchange Act, the Rules
and Regulations and its customary practice, the exercise of the Rights,
subject to the terms and conditions of this Agreement, the Subscription
Agent Agreement and the procedures described in the Registration
Statement, and (ii) sell Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ from the Company
as provided herein. No securities dealer shall be considered a Selling
Group Member until it shall have entered into a Selling Group Agreement
with ▇▇▇▇▇ ▇▇▇▇▇▇ in substantially the form of Exhibit D hereto.
(ii) ▇▇▇▇▇ ▇▇▇▇▇▇ is authorized to buy and exercise Rights and to
sell Shares to the public or to Selling Group Members at the offering
price set by ▇▇▇▇▇ ▇▇▇▇▇▇ from time to time. Sales of Shares by ▇▇▇▇▇
▇▇▇▇▇▇ or Selling Group Members shall be at
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not more than the offering price set by ▇▇▇▇▇ ▇▇▇▇▇▇ from time to time.
(iii) the Company agrees to furnish, or cause to be furnished, to
▇▇▇▇▇ ▇▇▇▇▇▇, lists, or copies of those lists, showing the names and
addresses of, and number of Shares held by, Record Date Shareholders as of
the Record Date, and to use its best efforts to advise ▇▇▇▇▇ ▇▇▇▇▇▇, or
cause it to be advised, on each Business Day during the Subscription
Period as to any transfers of Rights, and ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to use such
information only in connection with the Offer;
(iv) the Company will arrange for the Subscription Agent (A) to
inform ▇▇▇▇▇ ▇▇▇▇▇▇ orally, on each Business Day during the Subscription
Period (to be followed by written confirmation), as to the number of
Rights that have been exercised since its previous daily report to ▇▇▇▇▇
▇▇▇▇▇▇ under the provision of this Section 6(a)(iv), (B) not later than
10:00 a.m. (New York City time) on __________ [Expiration Date plus 7
days], to provide ▇▇▇▇▇ ▇▇▇▇▇▇ with a written statement as to the total
number of Rights exercised (separately setting forth the number of Rights
exercised by Record Date Shareholders), (C) to sell any Rights received
for resale from Record Date Shareholders exclusively to or through ▇▇▇▇▇
▇▇▇▇▇▇, which may, at its election, purchase such Rights as principal or
act as Agent for such resales and (D) to issue shares of Common Stock upon
▇▇▇▇▇ Barney's exercise of Rights no later than the close of business on
the business day following the day that full payment for such shares has
been received by the Agent.
(v) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to notify the Company on or prior to
___________ [Expiration Date plus 7 days] of the Shares purchased by ▇▇▇▇▇
▇▇▇▇▇▇ through the exercise of Rights and sold to the public or to each
Selling Group Member and the total amount of the commissions payable by
the Fund pursuant to Section 7 of this Agreement in connection with such
sales.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to provide to the Company, in addition to
the services described in paragraph (a) of
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this Section 6, financial advisory services in connection with the Offer.
(c) The Company and ▇▇▇▇▇ ▇▇▇▇▇▇ agree that ▇▇▇▇▇ ▇▇▇▇▇▇ and each Selling
Group Member is an independent contractor with respect to its solicitation of
the exercise of Rights contemplated by this Agreement and the performance of
financial advisory services to the Company contemplated by this Agreement, and
▇▇▇▇▇ ▇▇▇▇▇▇ represents and warrants that it is not a partner or agent of any
other securities broker, dealer or other person soliciting the exercise of
Rights as contemplated by this Agreement, or of the Company or any of its
affiliates.
(d) In rendering the services contemplated by this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇
and the Selling Group Members agree not to make any representations, oral or
written, to any shareholders or prospective shareholders of the Company that are
not contained in the Prospectus, unless previously authorized to do so in
writing by the Company.
(e) In rendering the services contemplated by this Agreement, neither
▇▇▇▇▇ ▇▇▇▇▇▇ nor any Selling Group Member will be subject to any liability to
the Company, the Manager, the Korean Adviser or any of their affiliates, for any
act or omission on the part of any securities broker or dealer (other than
itself or any of its affiliates) or any other person, and neither ▇▇▇▇▇ ▇▇▇▇▇▇
nor any Selling Group Member will be liable for its own acts or omissions in
performing its obligations under this Agreement, except for any losses, claims,
damages, liabilities and expenses that result from any acts or omissions
undertaken or omitted to be taken by ▇▇▇▇▇ ▇▇▇▇▇▇ or a Selling Group Member
through its gross negligence or willful misconduct.
7. DEALER MANAGER AND SOLICITATION FEES
The Company agrees to pay in New York Clearing House (next day)
funds on ___________ [Expiration Date plus 10 days]:
(a) to ▇▇▇▇▇ ▇▇▇▇▇▇, as compensation for its services to the Company as
financial adviser in connection with the Offer, a fee equal to an amount
computed by multiplying (i) .01, by (ii) the aggregate number of
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Shares purchased in the Offer, by (iii) the Subscription Price;
(b) to ▇▇▇▇▇ ▇▇▇▇▇▇ for its own account a fee equal to an amount computed
by multiplying (i) .025, by (ii) the sum of the number of Shares purchased
pursuant to each subscription form relating to the Rights upon which ▇▇▇▇▇
▇▇▇▇▇▇ is designated (other than Shares purchased by ▇▇▇▇▇ ▇▇▇▇▇▇ through the
exercise of Rights and sold to the public or to Selling Group Members) plus the
number of Shares sold by ▇▇▇▇▇ ▇▇▇▇▇▇ to the public as indicated in the notice
provided by ▇▇▇▇▇ ▇▇▇▇▇▇ to the Fund pursuant to Section 6(a)(v) of this
Agreement, by (iii) the Subscription Price;
(c) to ▇▇▇▇▇ ▇▇▇▇▇▇ for the account of each Selling Group Member a fee
equal to an amount computed by multiplying (i) .025, by (ii) the sum of the
number of Shares purchased pursuant to each subscription form relating to the
Rights upon which the Selling Group Member is designated plus the number of
Shares sold by ▇▇▇▇▇ ▇▇▇▇▇▇ to such Selling Group Member as indicated in the
notice provided by ▇▇▇▇▇ ▇▇▇▇▇▇ to the Fund pursuant to Section 6(a)(v) of this
Agreement, by (iii) the Subscription Price;
(d) to each securities broker or dealer who has executed the Company's
Soliciting Dealer Agreement (other than ▇▇▇▇▇ ▇▇▇▇▇▇ or any Selling Group
Member) designated on any subscription form related to the Rights ("Listed
Broker") a fee equal to an amount computed by multiplying (i) .005, by (ii) the
number of Shares purchased pursuant to each subscription form upon which the
Listed Broker is designated, by (iii) the Subscription Price, provided that the
aggregate fees paid to any Listed Broker (other than a Listed Broker who is
registered as a specialist in the Rights with the NYSE and who has been approved
by the NYSE to act as such during the Subscription Period) may not exceed the
product of (A) .50% of the Subscription Price per Share, times (B) the aggregate
number of shares of Common Stock held in such Listed Broker's participant
accounts with The Depository Trust Company on the Record Date divided by three;
and
(e) to ▇▇▇▇▇ ▇▇▇▇▇▇ a fee equal to an amount computed by multiplying (i)
.025, by (ii) the number of Shares purchased pursuant to each subscription form
upon
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which neither ▇▇▇▇▇ ▇▇▇▇▇▇ nor any Selling Group Member or Listed Broker is
designated plus the number of Shares purchased pursuant to subscription forms
upon which a Listed Broker is designated but which are in excess of the limit
set forth in clause (B) of the proviso in paragraph (d) of this Section 7, by
(iii) the Subscription Price.
8. COVENANTS OF THE COMPANY
The Company agrees:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 497(h) under the Securities Act not later than the
earlier of (a) the second business day following execution and delivery of this
Agreement or (b) the fifteenth business day after the Effective Date. The
Company will advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any such filing pursuant to Rule
497(h).
(b) The Company will advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any proposal to amend
or supplement the registration statement as filed, or the related prospectus or
statement of additional information, and will not effect such amendment or
supplementation without ▇▇▇▇▇ Barney's consent; the Company will also advise
▇▇▇▇▇ ▇▇▇▇▇▇ promptly of the effectiveness of the Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this Agreement)
and of any amendments or supplementation of the Registration Statement or the
Prospectus, and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement, and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If at any time when a prospectus relating to the Offer is required to
be delivered under the Securities Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Acts, the
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Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security
holders an earnings statement covering a period of at least twelve months
beginning after the effective date of the Registration Statement which will
satisfy the provisions of Section 11(a) of the Securities Act. For the purpose
of the preceding sentence "Availability Date" means the 60th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to ▇▇▇▇▇ ▇▇▇▇▇▇ copies of the Registration
Statement (one of which will be signed and will include all exhibits), the
Prospectus and any other soliciting materials authorized by the Company relating
to the offer, and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as ▇▇▇▇▇ ▇▇▇▇▇▇ requests.
(f) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, and will reimburse the Dealer Manager (i) for
its out-of-pocket expenses (including fees and disbursements of counsel) up to
an aggregate of $25,000 and (ii) for any reasonable expenses (including
reasonable fees and disbursements of counsel) incurred by it in connection with
qualification of the Rights and the Shares under the securities laws of the
jurisdictions as provided in paragraph (g) of this Section 8 and the printing of
memoranda relating thereto, and for the filing fee of the National Association
of Securities Dealers, Inc. relating to the Rights and the Shares. If this
Agreement is terminated pursuant to Section 10 or if for any reason the issuance
of the Rights and the sale of the Shares is not consummated, the Company shall
not be required to reimburse ▇▇▇▇▇ ▇▇▇▇▇▇ for its expenses pursuant to Section
8(f)(i). ▇▇▇▇▇ ▇▇▇▇▇▇ will be entitled to the payment of any fees pursuant to
Section 7 earned with respect to Shares purchased upon the exercise of Rights
prior to the
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date of any termination and to Shares purchased pursuant to the
Over-Subscription Privilege, as defined in the Registration Statement, by
holders who exercised such Rights prior to such date.
(g) To use every reasonable effort in cooperating with ▇▇▇▇▇ ▇▇▇▇▇▇ to
permit the distribution of the Rights and the offer and sale of the Shares under
the securities laws of the United States (including any state, territory or
possession and the District of Columbia) for so long as necessary for the
distribution of the Rights and the Shares, provided, however, that the Company
shall 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.
(h) During the period of five years hereafter, the Company will furnish to
▇▇▇▇▇ ▇▇▇▇▇▇, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to ▇▇▇▇▇ ▇▇▇▇▇▇ (i) as soon as available, a copy of each report or definitive
proxy statement of the Company filed with the Commission under the Investment
Company Act or the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as ▇▇▇▇▇ ▇▇▇▇▇▇ may
reasonably request.
(i) To advise ▇▇▇▇▇ ▇▇▇▇▇▇ promptly of any action by any of the NYSE, the
OSE or the PSE rejecting, suspending or terminating the application for the
listing of, or the listing of, the Rights or the Shares, as the case may be.
(j) To comply with the undertaking contained in paragraph 6 of Item 33 in
Part C of the Registration Statement.
9. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless ▇▇▇▇▇ ▇▇▇▇▇▇ and
each person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the
Securities Act against any losses, claims, damages or liabilities, joint or
several, to which ▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person may become subject,
under the Securities Act or
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otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse ▇▇▇▇▇ ▇▇▇▇▇▇ and each such
controlling person for any legal or other expenses reasonably incurred by ▇▇▇▇▇
▇▇▇▇▇▇ or such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information furnished
to the Company by ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein, (ii) any failure of
the Company to consummate the Offer, including any failure of the Company to
issue the Rights or issue and sell the Shares, (iii) any action taken or omitted
to be taken by ▇▇▇▇▇ ▇▇▇▇▇▇ with the consent of the Company, (iv) any action
taken or omitted to be taken by the Company, and/or the Manager and/or the
Korean Adviser, (v) any breach by the Company of any representation or warranty,
or any failure by the Company and/or the Manager to comply with any agreement or
covenant contained in this Agreement or (vi) any of the other transactions
contemplated by the Offer or by ▇▇▇▇▇ Barney's performance of its obligations
under this Agreement, and will reimburse ▇▇▇▇▇ ▇▇▇▇▇▇ and each person, if any,
who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the Securities Act for any legal
or other expenses reasonably incurred by ▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to indemnify and hold harmless the Company and its
directors, each of the Company's officers who have signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses,
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claims, damages or liabilities to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use therein; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability ▇▇▇▇▇ ▇▇▇▇▇▇ may otherwise have.
(c) The Manager agrees to indemnify and hold harmless ▇▇▇▇▇ ▇▇▇▇▇▇ and
each person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the
Securities Act, against any losses, claims, damages or liabilities to which
▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person of ▇▇▇▇▇ ▇▇▇▇▇▇ may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Manager specifically for use
therein; and will reimburse any legal or other expenses reasonably incurred by
▇▇▇▇▇ ▇▇▇▇▇▇ or such controlling person of ▇▇▇▇▇ ▇▇▇▇▇▇ in connection with
investigating or defend-
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ing any such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability the Manager may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section , notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section . In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation. No indemnifying party shall be liable under
the foregoing indemnity agreement in respect of any compromise or settlement of
any such action without its consent, which consent shall not be unreasonably
delayed or withheld. If settlement is made with the consent of the indemnifying
party, such indemnifying party shall indemnify and hold harmless the indemnified
party against any loss or liability incurred by reason of such settlement.
(e) If the indemnification provided for in this Section is unavailable,
for any reason other than as specified therein, to hold harmless an indemnified
party under subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a), (b)
or (c) above in such proportion as is appropriate to reflect the relative
benefits received by the
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Company on the one hand and ▇▇▇▇▇ ▇▇▇▇▇▇ on the other from the Offer. If the
allocation provided by the immediately preceding sentence is not permitted by
applicable law in the case of a claim for contribution by an indemnified party
under subsection (a) above, then the Company and the Manager shall each
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a)
above in such proportion as is appropriate to reflect not only the relative
benefits referred to in the immediately preceding sentence but also the relative
fault of the Company, the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. If the
allocation provided by the second preceding sentence is not permitted by
applicable law in the case of a claim for contribution by an indemnified party
under subsection (b) above, then ▇▇▇▇▇ ▇▇▇▇▇▇ shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (b) above in such proportion as
is appropriate to reflect not only the relative benefits referred to in the
second preceding sentence but also the relative fault of the Company on the one
hand and ▇▇▇▇▇ ▇▇▇▇▇▇ on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and ▇▇▇▇▇ ▇▇▇▇▇▇ on the other shall be deemed to
be in the same proportion as the total net proceeds from the subscription for
the Shares (before deducting expenses) received by the Company bear to the total
fees received by ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section 7 of this Agreement with
respect to the Offer. The relative fault of the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ 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 relate to information supplied by the Company or ▇▇▇▇▇ ▇▇▇▇▇▇
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
relative fault of the Manager shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to any negligence, ▇▇▇▇-
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lessness or willful misfeasance by the Manager in its performance of, or its
failure to perform, its obligations to the Company under the Management
Agreement, and the Manager shall not be liable for contribution under this
subsection (e) in the absence of such negligence, recklessness or willful
misfeasance. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), ▇▇▇▇▇ ▇▇▇▇▇▇ shall not be required to
contribute any amount in excess of the amount by which the total fees received
by ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section 7 of this Agreement exceeds the amount of
any damages that ▇▇▇▇▇ ▇▇▇▇▇▇ has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company and the Manager under this Section
shall be in addition to any liability which the Company or the Manager may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls ▇▇▇▇▇ ▇▇▇▇▇▇ within the meaning of the Securities
Act; and the obligations of ▇▇▇▇▇ ▇▇▇▇▇▇ under this Section shall be in addition
to any liability which ▇▇▇▇▇ ▇▇▇▇▇▇ may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each officer
of the Company who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Securities Act.
(g) ▇▇▇▇▇ ▇▇▇▇▇▇ confirms that the statements with respect to the public
offering of the Rights and Shares set forth [in the paragraph immediately
following the table appearing on the cover page of, and in the fifth and sixth
paragraphs under] the caption "The Offer Distribution Arrangements" in, the
Prospectus, and the stabilization legend on the inside cover of the Prospectus,
are correct and constitute the only information furnished in writing to the
Company by ▇▇▇▇▇ ▇▇▇▇▇▇ for
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23
inclusion in the Registration Statement and the Prospectus.
(h) The Manager confirms that the statements set forth in the [penultimate
sentence] under the caption "Use of Proceeds" and under the caption "Investment
Advisers and Administrator - The Investment Manager" in the Prospectus are
correct and constitute the only information furnished in writing to the Company
by the Manager for inclusion in the Registration Statement and the Prospectus.
10. TERMINATION
▇▇▇▇▇ ▇▇▇▇▇▇ may terminate this Agreement, in its absolute
discretion, by notice given to and received by the Company prior to the issuance
of the Rights, or if (a) the Company or the Manager has failed, refused or been
unable to perform any material agreement on its part to be performed under this
Agreement, (b) there has been, since the dates as of which information is given
in the Registration Statement, any material adverse change in the net asset
value of the Company or the tax, exchange control or other laws or regulations
applicable to the Company in Korea, Japan or the United States, the effect of
which, in the reasonable judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, renders it impracticable to
proceed with the solicitation of the exercise of Rights, or (c) any other
condition of ▇▇▇▇▇ Barney's obligations under this Agreement is not fulfilled.
Any termination of this Agreement pursuant to this Section 10 will be without
liability on the part of the Company, the Manager or ▇▇▇▇▇ ▇▇▇▇▇▇ except as
otherwise provided in Section 8(f), Section 9 and/or Section 12 of this
Agreement. Termination of this Agreement by ▇▇▇▇▇ ▇▇▇▇▇▇ will not preclude the
Company from consummating the Offer at its discretion.
11. CONDITIONS OF ▇▇▇▇▇ BARNEY'S OBLIGATIONS
The obligations of ▇▇▇▇▇ ▇▇▇▇▇▇ to perform and to continue to
perform as Dealer Manager under this Agreement will at all times be subject to
the accuracy, when made and at all times during the Offer and the Subscription
Period, including any extension thereof, of the representations and warranties
of the Company herein, to the accuracy of the statements of the officers of the
Company and Manager made pursuant to the provisions
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hereof, to the performance by the Company and the Manager of their respective
obligations hereunder and to each of the following additional conditions
precedent:
(a) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received a letter, dated the date of delivery
thereof (which, if the Effective Time is prior to the execution and delivery of
this Agreement, shall be on or prior to the date of this Agreement or, it the
Effective Time is subsequent to the execution and delivery of this Agreement,
shall be prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to the Effective Time), of
Coopers & ▇▇▇▇▇▇▇ L.L.P. confirming that they are independent accountants within
the meaning of the Acts and the Rules and Regulations and stating in effect
that:
(i) in their opinion the financial statements including the
schedules audited by them and included in the Registration Statement
comply in form in all material respects with the applicable accounting
requirements of the Acts and related published Rules and Regulations as
applicable to Form N-2;
(ii) they have read the latest available minutes of meetings of the
Board of Directors of the Company as set forth in the minute books through
a specified date not more than five business days prior to the date of
delivery of such letter, and have made inquires of certain officials of
the Company who have responsibility for financial and accounting matters,
as to whether, at a specified date not more than five days prior to the
date of this Agreement, there was any change in the Common Stock, any
increase in long-term debt of the Company or any decrease in net assets,
as compared with amounts shown on the latest balance sheet included in the
Prospectus; except in all cases for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or they shall state
any specific changes or decreases; and
(iii) they have compared certain dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement, which have been
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25
specified by the Dealer Manager, to the appropriate accounts in the
Company's accounting records subject to the internal controls of the
Company's accounting system and to schedules prepared by the Company
therefrom and have found such dollar amounts, percentages and other
financial information to be in agreement. The Dealer Manager will inform
Coopers & ▇▇▇▇▇▇▇ L.L.P. as to which amounts and information shall be
subject to the comparison described in this subsection (iii).
For purposes of this subsection, if the Effective Time is subsequent
to the execution and delivery of this Agreement, "Registration Statement" shall
mean the registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to the Effective Time, and
"Prospectus" shall mean the prospectus and statement of additional information
included in the Registration Statement.
(b) If the Effective Time is not prior to execution and delivery of this
Agreement, the Effective Time shall have occurred not later than 10:00 P.M., New
York City Time, on the date of this Agreement, or such later date as shall have
been consented to by ▇▇▇▇▇ ▇▇▇▇▇▇. If the Effective Time is prior to the
execution and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
8(a) of this Agreement. At or before the date of this Agreement, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company, the Manager or ▇▇▇▇▇ ▇▇▇▇▇▇, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company which, in the judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, materially impairs the
investment quality of the Shares, (ii) any suspension or limitation of trading
in securities generally on the NYSE, the Korea Stock Exchange, the OSE or the
PSE, or any setting of minimum prices for trading on any of such exchanges, or
any suspension of trading of the Common Stock of the Company
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26
on any exchange or in the over-the-counter market; (iii) any banking moratorium
declared by federal, New York or Korean authorities; (iv) any outbreak or
escalation of major hostilities in which the United States or Korea is involved,
any declaration of war by Congress or Korea or any other substantial U.S. or
Korean national or international calamity or emergency if, in the judgment of
▇▇▇▇▇ ▇▇▇▇▇▇ the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with the
solicitation of the exercise of the Rights; or (v) any material adverse change
in general economic, political or financial conditions that, or any
international conditions the effect of which on the financial markets in the
United States, Korea or Japan in the judgment of ▇▇▇▇▇ ▇▇▇▇▇▇, makes it
impractical or inadvisable to proceed with the solicitation of the exercise of
the Rights.
(d) The Rights have been listed on the NYSE no later than the opening of
trading on the NYSE on the first full day of trading after the date of this
Agreement and admitted for trading on the NYSE no later than the opening of
trading on the NYSE on the first full day of trading after the date of this
Agreement.
(e) The Korean Government, including the Minister of Finance and Economy,
shall not have issued any order rescinding their authorization for the Company
to issue the Shares, or to invest in Korean securities pursuant to the license
granted by the Minister of Finance and Economy of Korea, or rescinding their
interpretation of the applicability of the Treaty.
(f) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, dated
the date of this Agreement, and addressed to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect set
forth in Exhibit A to this Agreement.
(g) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of Counsel for the Manager, dated the date of this
Agreement, and addressed to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect set forth in Exhibit B
to this Agreement.
(h) On the date of this Agreement, there shall have been furnished to
▇▇▇▇▇ ▇▇▇▇▇▇ an opinion of Shin & ▇▇▇,
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27
Korean counsel for the Company, dated the date of this Agreement, and addressed
to ▇▇▇▇▇ ▇▇▇▇▇▇, to the effect set forth in Exhibit C to this Agreement.
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Dealer Manager, such opinion or opinions, dated the
date of this Agreement, with respect to the Registration Statement, the
Prospectus, and other related matters as ▇▇▇▇▇ ▇▇▇▇▇▇ may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(j) ▇▇▇▇▇ ▇▇▇▇▇▇ shall have received certificates of the Chairman,
President or any Vice-President and a principal financial or accounting officer
of the Company, and of the President and any Vice-President or any two
Vice-Presidents of the Manager, each dated the date of this Agreement, in which
such officers, to the best of their knowledge after reasonable investigation,
shall state that each such party has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
of this Agreement, and, in the case of the certificate of officers of the
Company, that the representations and warranties of the Company in this
Agreement are true and correct as of such date, that no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission, and that, subsequent to the date of the balance sheet in the
Prospectus, there has been no material adverse change in the financial position
or results of operation of the Company except as set forth or contemplated in
the Prospectus or as described in such certificate.
The Company and the Manager will furnish ▇▇▇▇▇ ▇▇▇▇▇▇ with such conformed copies
of such opinions, certificates, letters and documents as ▇▇▇▇▇ ▇▇▇▇▇▇ reasonably
requests.
12. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS
The respective indemnities, agreements, representations, warranties,
and other statements of the Company and the Manager of their respective officers
and
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of ▇▇▇▇▇ ▇▇▇▇▇▇ set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of termination of this Agreement, and
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇ or the Company and the Manager or any of their
respective officers or directors or any controlling person, and will survive
delivery of the Rights and the Shares. If this Agreement is terminated pursuant
to Section 10 or if for any reason the issuance of the Rights and the sale of
Shares is not consummated, the Company shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 8(f) and the respective
obligations of the Company and the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to Section
9 shall remain in effect.
13. NOTICES
All communications hereunder will be in writing and, if sent to
▇▇▇▇▇ ▇▇▇▇▇▇ will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [Will ▇▇▇▇▇▇▇▇,] Equity
Capital Markets, ▇▇▇-▇▇▇-▇▇▇▇, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President, or if sent to the Manager, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President.
14. SUCCESSORS
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors
and controlling persons referred to in Section 9, and no other person will have
any right or obligation hereunder.
15. APPLICABLE LAW
This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York applicable to contacts made and to be
performed within the State of New York.
16. COUNTERPARTS.
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This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts will each be
deemed to be an original but all such counterparts will together constitute one
and the same instrument.
* * * * *
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30
If the foregoing correctly sets forth the agreement among the
Company, the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇, please indicate ▇▇▇▇▇ Barney's acceptance
in the space provided for that purpose below, whereupon it will become a binding
agreement among the Company, the Manager and ▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with its
terms.
Very truly yours,
THE KOREA FUND, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.,
as Manager
By: ____________________________________
Name:
Title:
Accepted as of the date
first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: _________________________
Name:
Title:
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EXHIBIT A
Form of Opinion of Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ is of the opinion that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
New York, and in all other United States jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification except where failure to so qualify would not
have a material adverse effect on the business of the Company.
(2) All of the outstanding shares of the Common Stock of
the Company have been duly authorized, validly issued, fully paid and
nonassessable; the Offer, the Rights and the Shares have been duly
authorized, and the Rights and the Shares, upon issuance and delivery and,
in the case of the Shares, payment therefor, as described in the
Registration Statement and the Prospectus, will be, validly issued, fully
paid and nonassessable; the Rights conform to the statements concerning
them included in the Prospectus; the Shares conform to the description
thereof contained under the caption "Common Stock" in the Prospectus; the
Rights are duly authorized for listing, subject to official notice of
issuance, on the NYSE and are, or as soon as practicable after the date of
this Agreement, will be, admitted to trading on the NYSE; the Shares are
duly authorized for listing, subject to official notice of issuance, on
the NYSE and, as soon as practicable after the date of this Agreement,
will be admitted to trading on the NYSE and are registered under the
Exchange Act; and the stockholders of the Company have no preemptive
rights (except for the Rights) with respect to the Shares.
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(3) Each of this Agreement and the Subscription Agent
Agreement has been duly authorized, executed and delivered by the Company,
and the Subscription Agent Agreement constitutes the valid and binding
agreement of the Company and is enforceable against the Company, in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws relating to or affecting
creditors' rights and to general equity principles.
(4) The Management Agreement, the Research Agreement and
the Custodian Agreement have each been duly authorized and approved by the
Company and comply with all applicable provisions of the Investment
Company Act, and the Management Agreement and Custodian Agreement have
been duly executed and delivered by the Company and constitute the valid
and binding obligations of the Company enforceable in accordance with
their respective terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws relating to or affecting
creditors' rights and to general equity principles.
(5) The Company is duly registered with the Commission
under the Investment Company Act as a closed-end non-diversified
management investment company, and all required action has been taken by
the Company under the Acts and the Exchange Act to make the public
offering and consummate the issuance of the Rights and sale of the Shares
pursuant to this Agreement; the provisions of the Articles of
Incorporation and By-laws of the Company comply as to form in all material
respects with the requirements of the Investment Company Act; and no
consent, approval, authorization or order of, or filing with, any court or
governmental agency, authority or body is required under Maryland
corporate law, the laws of New York or federal law, or, to the best of
such counsel's knowledge, the laws of any other jurisdiction in the United
States for the consummation of the transactions contemplated herein or in
the Subscription Agent Agreement in connection with the issuance of the
Rights or the sale of the Shares by the Company except such as have been
obtained under the Acts and the Exchange Act and
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such as may be required under state securities laws in connection with the
distribution of the Rights and the Shares.
(6) The execution, delivery and performance of this
Agreement and the Subscription Agent Agreement and the consummation of the
transactions contemplated herein and in the Subscription Agent Agreement
will not result in a breach or violation of any of the terms and
provisions of the Articles of Incorporation or By-laws of the Company or
any law, order, rule or regulation applicable to the Company of any United
States jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Company, or its
properties or operations, or, to the best knowledge of such counsel after
reasonable investigation, constitute, with or without giving notice or
lapse of time or both, a default under, any agreement or instrument to
which the Company is a party or by which the Company is bound or to which
any of the properties of the Company is subject (except that in this
paragraph (6) they express no opinion as to the accuracy or completeness
of the Registration Statement or of the Prospectus).
(7) The Registration Statement was declared effective
under the Securities Act as of the date and as of the time specified in
such opinion, the Prospectus was either filed with the Commission pursuant
to the subparagraph of Rule 497(h) specified in such opinion on the date
specified therein or was included in the Registration Statement (as the
case may be), and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, and the Registration
Statement and the Prospectus (except as to the financial statements and
other financial data contained therein, as to which they express no
belief), as of their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Acts and the
Rules and Regulations.
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(8) The descriptions in the Registration Statement and
Prospectus of United States statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
Such counsel shall also state 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, except
to the limited extent stated in paragraph (8) above, 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 and with Korean counsel to the Company, no facts have
come to their attention which cause them to believe that either the Registration
Statement of the Prospectus, or any amendment or supplement thereto (except as
to any financial statements or other financial date included in the Registration
Statement, the Prospectus or any such amendment or supplement, as to which they
express no belief), as of such respective effective or issue dates, contained an
untrue statement or a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein not
misleading.
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EXHIBIT B
Form of Opinion of Counsel for Manager
Counsel for the Manager is of the opinion that:
(1) The Manager has been duly incorporated and is an existing
corporate in good standing under the laws of the State of Delaware, with
corporation power and authority to conduct its business as described in
the Prospectus.
(2) The Manager is duly registered as an investment adviser under
the Investment Advisers Act and is not prohibited by the Investment
Advisers Act or the Investment Company Act, or the rules and regulations
under such acts, from acting as Manager for the Company as contemplated by
the Prospectus.
(3) This Agreement has been duly authorized, executed and
delivered by the Manager.
(4) The Management Agreement and the Research Agreement have each
been duly authorized, executed and delivered on behalf of the Manager and
each constitutes a valid and binding obligation of the Manager enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws relating to or affecting
creditors' rights and to general equity principles; and neither the
execution and delivery of this Agreement, the Management Agreement or the
Research Agreement nor the performance by the Manager of its obligations
thereunder will conflict with or result in a breach or violation of any of
the terms and provisions of the charter or By-laws of the Manager or any
law, order, rule or regulation applicable to the Manager of any United
States jurisdiction, court, federal or state regulatory body,
administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Manager or its
properties or operations, or, to the best knowledge of such counsel after
reasonable investigation, constitute, with or without giving notice or
lapse of time
36
or both, a default under, any agreement or instrument to which the Manager
is a party or by which the Manager or to which any of the properties of
the Manager is subject.
B-2
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EXHIBIT C
Form of Opinion of Shin & ▇▇▇
▇▇▇▇ & ▇▇▇ is of the opinion that:
(1) The information in the Prospectus, to the extent that it relates
to matters of Korean law or legal conclusions, has been reviewed by them
and is an accurate and complete description of all Korean law or legal
conclusions applicable to the Company and the operation of its business as
described in the Prospectus and, at the Effective Time, such information
did 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; and such counsel has no reason to
believe that the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue
dates, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(2) The Company, the Manager and the Korean Adviser have received
all governmental and other licenses, authorizations, approvals and
consents in Korea which are necessary for the consummation by the Company,
the Manager and the Korean Adviser of the transactions contemplated by
this Agreement, the Subscription Agent Agreement, the Management
Agreement, the Research Agreement and the Custodian Agreement, as the case
may be, and for the operation of the business of the Company as described
in the Prospectus, and there is no other license, authorization, approval
or consent of, or filing with, any governmental or other regulatory
authority, stock exchange or securities business association in Korea
necessary in order for the Company, the Manager and the Korean Adviser
lawfully to perform their respective obligations under such Agreements or
to conduct the business of the Company as described in the Prospectus.
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(3) To the best of the knowledge of such counsel, there are no
actions, investigations or other proceedings in Korea of any nature
pending, commenced or threatened, which in any case or in the aggregate,
might result in any material adverse change in the business of the
Company, the Manager or the Korean Adviser or which question the validity
of the Agreements referred to under (2) above or the performance by the
Company, the Manager or the Korean Adviser, of such Agreements.
(4) The Korean Adviser has been duly organized and is validly
existing under the laws of Korea, with corporate power to conduct its
business as described in the Prospectus.
(5) The Research Agreement has been duly authorized, executed and
delivered on behalf of the Korean Adviser and constitutes a valid and
binding obligation of the Korean Adviser enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws relating to or generally affecting creditors'
rights, and neither the execution and delivery of the Research Agreement
nor the performance by the Korean Adviser of its obligations thereunder
will, to the best of such counsel's knowledge after reasonable
investigation, conflict with, or result in a breach or violation of any of
the terms and provisions of, or constitute, with or without giving notice
or lapse of time or both, a default under, any agreement or instrument to
which the Korean Adviser is party or by which the Korean Adviser is bound
or to which any of the properties of the Korean Adviser is subject, or the
charter or by-laws of the Korean Adviser or will violate any law, order,
rule or regulation in Korea applicable to the Korean Adviser of any
jurisdiction, court, regulatory body, administrative agency or other
governmental body, stock exchange or securities business association in
Korea having jurisdiction over the Korean Adviser or its properties or
operations.
In addition, such counsel will also confirm their opinions set forth
under caption "Taxation-Korean Taxes" in the Prospectus.
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