EXHIBIT NO. EX-99.l
DIMENSIONAL EMERGING MARKETS FUND INC.
SUBSCRIPTION AGREEMENT
THE COMMON STOCK OF DIMENSIONAL EMERGING MARKETS FUND INC. HAS NOT BEEN
REGISTERED FOR PUBLIC OFFER OR SALE UNDER THE SECURITIES ACT OF 1933 OR STATE
SECURITIES LAWS. THE SHARES CANNOT BE SOLD, TRANSFERRED, ASSIGNED, OR OTHERWISE
DISPOSED OF EXCEPT IN COMPLIANCE WITH THIS SUBSCRIPTION AGREEMENT.
Subscription Agreement by and between Dimensional Emerging Markets Fund
Inc. (the "Fund"), and BellSouth Corporation (the "Investor") dated as of
February 1, 1993.
PURCHASE OF SHARES
Section 1.01 PURCHASE OF SHARES. The Investor hereby initially
subscribes for twenty-five million dollars ($25,000,000) in payment for Shares
on the following terms and conditions:
(a) The purchase price for the Shares shall be $10.00 per Share
during the Fund's Initial Offering Period. After the initial offering
period, Shares may be purchased at the net asset value per Share
("NAV") next determined following acceptance of this Agreement by the
Fund and receipt of payment in immediately available funds for the
Shares, plus a reimbursement fee of 1.5% of the NAV per Share, payable
to the Fund. The NAV shall be calculated and the Shares shall be issued
on the next Trade Date to occur after said acceptance of this Agreement
and receipt of payment.
(b) The Investor shall pay to the Fund the amounts set forth in
Schedule A on the corresponding dates set forth in Schedule A in
immediately available funds in full payment for Shares at a price per
Share and the reimbursement fee as calculated above, and the Fund shall
deliver to the Investor a written confirmation evidencing the issuance
of such Shares as of the Trade Date. Shares shall be in book-entry,
uncertificated form unless otherwise requested by the Investor.
Section 1.02. RESTRICTIONS ON TRANSFER. The Shares acquired hereunder
shall not be assignable, and the Investor shall not assign or otherwise transfer
or pledge or otherwise encumber any or all of its interest in such Shares,
except as specifically permitted by this Agreement.
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Section 2.01. REGISTRATION STATEMENT ON FORM N-2.
(a) The Investor acknowledges that it has received and reviewed
the Registration Statement of the Fund, describing the business of the
Fund and the Investment Manager; that it is purchasing Shares without
being furnished any offering literature other than the Registration
Statement; that it is familiar with the Investment Management Agreement
between the Fund and the Investment Manager; that it understands that
this transaction
has not been scrutinized by the United States Securities and Exchange
Commission ("SEC") or by any administrative agency charged with the
administration of the securities laws of any state because of the
nature and limited number of persons solicited and the private aspects
of the offering; that all documents, records and books pertaining to
this investment have been made available to the Investor's
representatives, including counsel and accountants; and that books and
records of the Fund will be available upon reasonable notice for
inspection by the Investor during reasonable business hours at the
Fund's principal place of business.
(b) The Investor acknowledges that the offer to sell Shares was
directly communicated to it by the Fund in such a manner that the
Investor was able to ask questions of and receive answers from the Fund
and Investment Manager or another person acting on behalf of the Fund
concerning the terms and conditions of this transaction and that at no
time was the Investor presented with or solicited by any leaflet,
public promotional meeting, newspaper or magazine article, radio or
television advertisement or any other form of general advertising or
general solicitation.
(c) The Investor represents and warrants that in making its
investment decision with respect to subscribing for Shares in the Fund,
it has not relied upon any statement, representation or advice of any
other investor or any other person, except as provided in subsection
(b) above.
(d) The Investor represents and warrants to the Fund that it is
acquiring the Shares for its own account for the purpose of investment
and not with a view to or for sale in connection with any distribution
of such Shares nor with any present intention of distributing or
selling such Shares, but subject nevertheless to any requirement of law
that the disposition of the Investor's property shall at all times be
and remain within the Investor's control.
Section 2.02. STATUS OF THE INVESTOR AS AN ELIGIBLE INVESTOR. The
Investor represents that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act and agrees to provide the Fund with such
evidence of such fact as the Fund may reasonably require. The Investor has such
knowledge and experience in financial and business matters that the Investor is
capable of evaluating the merits and risks of the Investor's investment in the
Shares to be acquired by the Investor, and the Investor is able to bear the
economic risk of the Investor's investment in such Shares. If the Investor is a
corporation, partnership or other business entity, the Investor represents that
it was not organized for the specific purpose of making its investment in Shares
pursuant to this Agreement. The Investor acknowledges that the Shares have not
been registered by the Fund pursuant to the registration provisions of the
Securities Act or the securities laws of any state in reliance upon the
availability of exemptions from such registration which depend in part on the
Investor's representations contained herein.
Section 2.03. REQUISITE POWER AND AUTHORITY.
(a) The Investor represents that, if applicable, it has all
necessary corporate, partnership or trust power and authority under all
applicable provisions of law to execute and deliver this Agreement and
to carry out the provisions thereof. All corporate, partnership or
trust action on the Investor's part required for the lawful execution
and delivery of this Agreement has been or will be duly and effectively
taken prior to the
applicable Trade Date.
(b) All consents, approvals, orders, authorizations or
registration, qualification, designation, declaration or filing with
any governmental or banking authority on the part of the Investor
required in connection with the consummation of the transactions
contemplated herein have been obtained.
RESTRICTIONS ON TRANSFER OF SHARES
Section 3.01. RESTRICTIVE LEGEND.
Any certificate representing Shares shall (unless otherwise permitted
by this Agreement) be stamped or otherwise imprinted with a legend in
the following form (in addition to any legend required under applicable
state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE SUBSCRIPTION AGREEMENT DATED AS OF
FEBRUARY 1, 1993 COVERING THE ACQUISITION OF THESE SHARES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION.
Section 3.02. RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS.
Prior to any proposed transfer of any Shares, the Investor shall give written
notice to the Fund of such Investor's intention to effect such transfer.
Transfers of Shares may be made only to persons who are "accredited investors"
as defined in Regulation D under the Securities Act. Each such notice shall
describe the manner and circumstances of the proposed transfer, and shall be
accompanied by either: (A) a written opinion of legal counsel who shall be
reasonably satisfactory to the Fund, addressed to the Fund and reasonably
satisfactory in form and substance to the Fund's counsel, to the effect that the
proposed transfer of the Shares may be effected without registration under the
Securities Act (which opinion may be conditioned upon the transferee's assuming
obligations equivalent to those set forth in this Section) and without
qualification; or (B) a "no action" letter from the staff of the Securities and
Exchange Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that enforcement action be taken with respect thereto; whereupon the Investor
shall be entitled to transfer such Shares in accordance with the terms of the
notice delivered by the Investor to the Fund. Each certificate evidencing the
Shares transferred as above provided shall bear the appropriate restrictive
legend set forth in Section 3.01 above, except that such certificate shall not
bear such restrictive legend if (1) the opinion of counsel referred to above is
to the further effect that such legend is not required in order to establish
compliance with any provisions of the Securities Act, or (2) an appropriate
registration statement with respect to such Shares has been filed by the Fund
with the Commission and declared effective by the Commission; in the latter
events, the Fund shall cause new unlegended certificates to be issued to the
Investor in exchange for outstanding legended certificates.
MISCELLANEOUS
Section 4.01. CONSTRUCTION. This Agreement shall be governed by the
laws of the
State of California, and all laws or rules of construction of such State shall
govern the rights of the parties hereto and the interpretation of provisions of
this Agreement.
Section 4.02. FORM ADV. The Investor acknowledges that it has received
copies of Part II of the Investment Manager's Form ADV as amended to date, or a
separate brochure which the Investment Manager represents contains the same
information as such Part II. The Investor represents that it understands the
matters set forth in such Part II of Form ADV or separate brochure.
Section 4.03. WRITTEN NOTICE. Any notice, demand, direction or
instruction to be given to the Fund shall be in writing and shall be duly given
if mailed and received by, or delivered to, the Fund at c/o Dimensional Fund
Advisors Inc., 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, XX, 00000 or such
other address as shall be specified by the Fund in writing. Any notice to be
given to the Investor shall be duly given if mailed or delivered to the address
of such Investor appearing on the record books of the Fund, or such other
address as shall be specified by the Investor in writing.
Section 4.04. COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each of which shall be deemed an original, but
the several counterparts shall together constitute but one and the same
Agreement of the parties hereto.
Section 4.05. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held contrary to any
express provision of law or contrary to policy of express law, though not
expressly prohibited, or against public policy, or shall for any reason whatever
be held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement or the rights of the parties.
Section 4.06. INDEMNIFICATION. The Investor acknowledges that it
understands the meaning and legal consequences of its representations and
warranties contained herein, and hereby agrees to indemnify the Fund, each other
Investor and the Investment Manager against and hold them harmless from any and
all loss, damage or liability due to or arising out of a breach of any such
representation or warranty.
Section 4.07. RESTRICTIONS ON DISCLOSURE. The Investment Manager of the
Fund serves as investment manager to one or more accounts for which the
Investment Manager may recommend the purchase or sale of securities issued by
the corporate sponsor of the Investor (the "Employer"). In connection with the
investment management services to be provided for the Fund, neither the Investor
nor the Employer shall disclose material nonpublic information to the Investment
Manager concerning the Employer. The Investor and the Employer understand that
it is not the intent or expectation of the Investment Manager that the
Investment Manager will seek and obtain material nonpublic information
concerning the Employer, as the receipt of such information would under
applicable law temporarily prevent the Investment Manager from trading in the
securities of the Employers, and that the Investment Manager has fiduciary
obligations to its other clients with respect to the investment management
services provided to them. The Investor and the Employer agree to appropriately
instruct their respective employees and agents with regard to this provision, so
as to better assure that material nonpublic information concerning the Employer
is not provided to the Investment Manager in the course of its duties as
Investment Manager to the Fund.
Section 4.08. INTERPRETATION. This Agreement has been negotiated at
arm's length and between persons sophisticated and knowledgeable in the matters
dealt with in this Agreement. In
addition, each party has been represented by experienced and knowledgeable legal
counsel. Accordingly, any rule of law (including California Civil Code section
1654) or legal decision that would require interpretation of any ambiguities in
this Agreement against the party that has drafted it is not applicable and is
waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the purpose of the parties and this Agreement.
Section 4.09. AUTHORIZED SIGNATURES. Attached hereto as Schedule B is a
list of names with signatures of persons authorized to give instructions to the
Fund regarding investments made pursuant to this Agreement.
DEFINITIONS
Section 5.01. DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context clearly indicates otherwise,
shall have the following meanings:
(a) "Agreement" shall mean this Agreement. All headings of
Articles and Sections shall be for convenience only and shall have no
meaning, force or effect whatever.
(b) "Initial Offering Period" shall mean the period from the date
of the filing of the Fund's Registration Statement until the first
investment is made.
(c) "Investor" shall mean the investor executing this Agreement.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended, or any successor federal income tax code.
(e) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
(f) "Investment Management Agreement" shall mean the agreement
dated as of December 22, 1992, by and among the Fund and Dimensional
Fund Advisors Inc.
(g) "Investment Manager" shall mean Dimensional Fund Advisors Inc.
or any successor Investment Manager as may be engaged by the Fund.
(h) "Registration Statement" shall mean the Registration Statement
on Form N-2 of the Fund filed with the U.S. Securities and Exchange
Commission on January 15, 1993 and all amendments thereto as shall be
filed from time to time.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(j) "Share" shall mean a share of Common Stock of the Fund.
(k) "Trade Date" shall mean the last business day of each month on
which the New York Stock Exchange is open for trading, unless the Trade
Date for a particular month is postponed by and in the discretion of
the Fund for up to 5 business days; provided that the Fund may in its
discretion use any other business day on which the New York Stock
Exchange is open for trading as the Trade Date.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
DIMENSION EMERGING MARKET FUND, INC. INVESTOR:
Wachovia Bank of North Carolina, N.A.
Trustee for Various Pans Under Agreement
Dated July 24, 1989
By: /s/ Xxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Signature
Xxxx X. Xxxxxx
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Print Name
Senior Vice President
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Title
00-0000000
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Federal Tax I.D. Number
SCHEDULE A
SCHEDULE OF INVESTMENTS
First $25,000,000 to be invested on February 1, 1993. Dates of additional
investments to be determined at a later date.
SCHEDULE B
AUTHORIZED SIGNATURES
ADDENDUM TO DOCUMENT
The undersigned has executed the foregoing Dimensional Emerging Markets
Fund Inc. Subscription Agreement (the "Document") upon the direction of persons
authorized to direct the undersigned (the "Authorized Persons") in the
investment of assets held by the undersigned in its capacity as trustee of the
trust named below. The undersigned has not undertaken to conduct the
investigation necessary to make the representations, warranties,
acknowledgements, confirmations, directions, understandings, agreements,
authorization, declarations and other statements and matters requested in the
Document, but has nevertheless executed the Document based on the abovementioned
direction and the written confirmation from the Authorized Persons that all of
such representations, warranties, acknowledgements, confirmations, directions,
understandings, agreements, authorizations, declarations and other statements
and matters in the Document are true, correct or proper.
WACHOVIA BANK OF NORTH CAROLINA, N.A.
Trustee for Trustee for Various Plans under
Agreement dated July 24, 1989
By: /s/ Xxxx X. Xxxxxx
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Title: Senior Vice President
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Date: January 29, 1993
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