Company Assistance. The Company agrees to (i) provide commercially reasonable assistance to the Depositary upon the request of the Depositary in the establishment of the procedures contemplated herein to enable the acceptance of the deposit by the Company of the Conversion Restricted Shares or Shares, as the case may be, the issuance of Conversion Restricted ADSs to the applicable Converting Noteholders for delivery in the form of Conversion Restricted ADRs, the transfer of the Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby), the cancellation of Conversion Restricted ADSs and the withdrawal of the Conversion Restricted Shares, and the conversion of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby), and (ii) take all commercially reasonable steps requested by the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or Shares, the issuance of Conversion Restricted ADSs or freely transferable ADSs, the issuance and delivery of the Conversion Restricted ADRs or freely transferable ADRs, the transfer of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby), the cancellation of Conversion Restricted ADSs or freely transferable ADSs and the withdrawal of Conversion Restricted Shares or Shares and the conversion of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby), in each case upon the terms and conditions set forth herein, do not prejudice any substantial existing rights of Holders and Beneficial Owners of ADSs and do not violate the provisions of the Securities Act or any other applicable laws. In furtherance of the foregoing, the Company (i) confirms (after consultation with its U.S. counsel) that, assuming the receipt of a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, the deposit of Conversion Restricted Shares or Shares, as the case may be, by the Company, the issuance of Conversion Restricted ADSs or freely transferable ADSs in respect thereof and the delivery of such Conversion Restricted ADSs (for delivery in the form of Conversion Restricted ADRs) or freely transferable ADSs to the applicable Converting Noteholders does not violate the registration requirements of the Securities Act, (ii) confirms (after consultation with its U.S. counsel) that, as a result of the Guarantee and upon the effective date of the Second Supplemental Indenture, the exception provided under Section 3(a)(9) of the Securities Act will be available for the issuance of Shares and ADSs upon the conversion of the 2003 Notes, (iii) represents that (a) this Letter Agreement has been duly executed and delivered by a duly authorized officer of the Company and constitutes the legal, valid, binding and enforceable obligation of the Company, (b) this Letter Agreement and the performance of all transactions contemplated hereby have been duly authorized by all necessary corporate action and will not result in a breach of, or constitute a default under, the articles of association or memorandum of association of the Company or, except as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and do not and will not result in a violation of any law, rule or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and applicable to the Company, except as would not have a material adverse effect, and (c) except as would not have a material adverse effect, it has obtained, prior to the date hereof, all requisite approvals from all applicable regulatory authorities. The Company confirms that there have been no conversions of 2003 Notes from the date of execution of the Restricted ADS Side Letter until the date hereof.
Appears in 1 contract
Samples: Deposit Agreement (Chippac Inc)
Company Assistance. The Company agrees to (i) provide commercially reasonable assistance to the Depositary upon the request of assist the Depositary in the establishment of the such procedures contemplated herein to enable the acceptance of the deposit by the Company of the Conversion Restricted Shares or Preferred Shares, as the case may be, the issuance of Conversion the Restricted ADRs evidencing the Restricted ADSs, the delivery of the Restricted ADRs or unrestricted ADRs, the surrender of the Restricted ADRs or unrestricted ADRs evidencing the Restricted ADSs to or unrestricted Preferred ADSs upon the applicable Converting Noteholders for delivery in conversion (through consolidation and redesignation) of the form of Conversion Restricted ADRsPreferred Shares, the transfer of the Conversion Restricted ADRs (and Preferred ADSs or the Conversion Restricted ADSs represented thereby)or unrestricted Preferred ADSs, the cancellation of Conversion Restricted ADSs as applicable, and the withdrawal of the Conversion Restricted Preferred Shares, the deposit of the Ordinary Shares, the issuance of the Ordinary ADSs, the delivery of the Ordinary ADSs, and the conversion issuance and delivery of Conversion any Restricted ADRs (and the Conversion or unrestricted ADRs evidencing those Restricted ADSs represented thereby) into freely transferable ADRs (and or unrestricted Preferred ADSs representing the freely transferable ADSs represented thereby)Preferred Shares not converted, and (ii) take take, and cause, instruct or direct others to take, all commercially reasonable steps requested by necessary and satisfactory to the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or Preferred Shares, the issuance of Conversion the Restricted ADRs evidencing Restricted ADSs or freely transferable unrestricted ADRs evidencing unrestricted Preferred ADSs, the delivery of the Restricted ADRs or unrestricted ADRs, the surrender of the Restricted ADRs evidencing the Restricted ADSs or unrestricted ADRs evidencing unrestricted Preferred ADSs upon the conversion (through consolidation and redesignation) of the Preferred Shares, the transfer of the Preferred ADSs or the Restricted ADSs or unrestricted Preferred ADSs, as applicable, and the withdrawal of the Preferred Shares, the deposit of the Ordinary Shares, the issuance of the Ordinary ADSs, the delivery of the Ordinary ADSs, and the issuance and delivery of the Conversion any Restricted ADRs or freely transferable ADRs, the transfer of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby), the cancellation of Conversion evidencing those Restricted ADSs or freely transferable unrestricted ADRs evidencing unrestricted Preferred ADSs and representing the withdrawal of Conversion Restricted Preferred Shares or Shares and the conversion of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)not converted, in each case upon the terms and conditions set forth herein, do not materially prejudice any substantial existing the rights of Holders and Beneficial Owners of Preferred ADSs and do not violate the provisions of the Securities Act or any other applicable laws. In furtherance of the foregoing, the Company (i) confirms (after consultation with shall cause its U.S. counselcounsel to deliver an opinion to the Depositary stating, inter alia, that (x) that, assuming the receipt of a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, the deposit of Conversion Restricted the Preferred Shares or the Ordinary Shares, as the case may be, by the Company, and the issuance and delivery of Conversion Restricted ADSs, Preferred ADSs or freely transferable ADSs Ordinary ADSs, as applicable, in respect thereof each case upon the terms contemplated herein and the delivery of such Conversion Restricted ADSs (for delivery in the form of Conversion Restricted ADRs) or freely transferable ADSs to the applicable Converting Noteholders does Deposit Agreements, do not violate the require registration requirements of under the Securities Act, (ii) confirms (after consultation with its U.S. counsel) that, in form satisfactory to the Depositary as a result of the Guarantee and upon the effective date of the Second Supplemental Indenturethis Letter Agreement, the exception provided under Section 3(a)(9) of the Securities Act will be available for the issuance of Shares and ADSs upon the conversion of the 2003 Notes, (iii) represents that (ay) this Letter Agreement has been duly executed and delivered by a duly authorized officer of the Company and constitutes the legal, valid, binding and their enforceable obligation of the Company, (b) this Letter Agreement and the performance of all transactions contemplated hereby have been duly authorized by all necessary corporate action and will not result in a breach of, or constitute a default under, the articles of association or memorandum of association of the Company or, except as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and do not and will not result in a violation of any law, rule or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and applicable to the Company, except as would not have a material adverse effect, and (c) except as would not have a material adverse effect, it has obtained, prior to the date hereof, all requisite approvals from all applicable regulatory authorities. The Company confirms that there have been no conversions of 2003 Notes from the date of execution of the Restricted ADS Side Letter until the date hereofagreements.
Appears in 1 contract
Samples: Letter Agreement (Citibank,N.A./ADR)
Company Assistance. The Company agrees to (i) provide commercially reasonable assistance to the Depositary upon the request of assist the Depositary in the establishment of the procedures contemplated herein to enable the acceptance of the deposit by the Company of the Conversion Restricted Shares or Shares, as the case may be, the issuance of Conversion the Restricted ADSs to ADSs, the applicable Converting Noteholders for issuance and delivery in of the form of Conversion Restricted ADRsADR(s), the transfer of the Conversion Restricted ADRs (ADR(s) and the Conversion Restricted ADSs represented evidenced thereby), the cancellation of Conversion Restricted ADSs and the withdrawal of the Conversion Restricted Shares, Shares and the conversion exchange of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)for Sale ADSs, and (ii) take all commercially reasonable steps requested by necessary and satisfactory to the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or Shares, the issuance of Conversion Restricted ADSs or freely transferable ADSs, the issuance and delivery of the Conversion Restricted ADRs or freely transferable ADRsADR(s), the transfer of Conversion Restricted ADRs (ADR(s) and the Conversion Restricted ADSs represented evidenced thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby), the cancellation exchange of Conversion Restricted ADSs or freely transferable ADSs for Sale ADSs, and the withdrawal of Conversion Restricted Shares or Shares and the conversion of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)Shares, in each case upon the terms and conditions set forth hereinin the Deposit Agreement, as supplemented by this letter agreement, do not materially prejudice any substantial existing the rights of Holders and Beneficial Owners of ADSs and do not violate the provisions of the Securities Act or any other applicable laws, and (iii) cause each of the Selling Stockholders to make the representations and acknowledgments contemplated herein. In furtherance of the foregoing, the Company shall (ix) confirms (after consultation with cause its U.S. counsel) that, assuming the receipt of counsel to deliver a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, the deposit of Conversion Restricted Shares or Shares, as the case may be, by the Company, the issuance of Conversion Restricted ADSs or freely transferable ADSs in respect thereof and the delivery of such Conversion Restricted ADSs (for delivery in the form of Conversion Restricted ADRs) or freely transferable ADSs legal opinion satisfactory to the Depositary addressing the following points: (1) the F-3 Registration Statement has been declared effective under the Securities Act and such F-3 Registration Statement appeared on its face to be appropriately responsive in all material respects with the applicable Converting Noteholders does not violate the registration requirements of the Securities ActAct and the rules and regulations thereunder as interpreted by the Commission, (ii) confirms (after consultation with and, to its U.S. counsel) thatknowledge, as a result no stop order suspending the effectiveness of the Guarantee F-3 Registration Statement or any part thereof has been issued and upon the effective date of the Second Supplemental Indenture, the exception provided no proceedings for that purpose have been instituted or are pending or contemplated under Section 3(a)(9) of the Securities Act will be available for (or, with respect to any reports incorporated therein by reference, under the issuance of Shares Exchange Act), and ADSs upon (2) the conversion Company is not an “investment company” within the meaning of the 2003 NotesInvestment Company Act of 1940, as amended, (iiiy) represents cause its Indian counsel to deliver an opinion to the Depositary addressing the following points, that (a1) this Letter Agreement letter agreement has been duly executed and delivered for and on behalf of the Company by a duly authorized an officer of the Company duly elected or appointed and thereunto duly authorized and constitutes the legal, valid, valid and binding and enforceable obligation agreement of the Company, enforceable against the Company in accordance with its terms in India, except as may be limited by bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally and general principles of equity, (b2) all requisite permissions, consents, approvals, authorizations and orders (if any) have been obtained and all requisite filings (if any) have been made in India to enable the Company to enter into this Letter Agreement letter agreement and for the Company, the Depositary and the performance of all Selling Stockholder to engage in the transactions contemplated hereby herein, (3) neither this letter agreement nor any other document or instrument delivered by the Company to the Depositary needs to be recorded or filed with any agency or authority under Indian law, nor does any stamp or similar tax need to be paid under Indian law to ensure the legality, validity, enforceability or admissibility into evidence of this letter agreement, (4) none of the terms of this letter agreement violate or conflict with, nor does the execution and delivery of this letter agreement or the consummation of the transactions contemplated therein violate or conflict with, the Articles of Association or Memorandum of Association of the Company or any agreement to which the Company is a party or by which the Company is bound, (5) none of the terms nor the transactions contemplated by this letter agreement violate any law, rule, regulation, order, judgment, administrative decree or regulation of India or to which the Company is otherwise subject, and (6) all of the Shares to be deposited in the American Depositary Receipt facility pursuant to the terms of this letter agreement have been duly authorized and validly issued and are fully paid and nonassessable, and are free of any transfer or voting restrictions, and free of any preemptive rights (other than preemptive rights properly waived by all necessary corporate action and will not result in a breach of, or constitute a default under, the articles of association or memorandum of association shareholders of the Company or, except as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and do not and will not result in a violation of any law, rule or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and applicable to the Company, except as would not have a material adverse effect), and (cz) except as would not have require (i) each of the Selling Stockholders to sign a material adverse effect, it has obtained, prior deposit certification substantially in the form of Exhibit B hereto (the “Deposit Certification”) via facsimile (followed by an original) to the date hereofDepositary located at 100 Xxxx Xxxxxx, all requisite approvals from all applicable regulatory authorities. The Company confirms that there have been no conversions 00xx Xxxxx, Xxx Xxxx, XX 00000, facsimile: (000) 000-0000, Attention: Broker Services, (ii) in the event a Selling Stockholder wishes to surrender the Restricted ADR(s) evidencing the Restricted ADSs to the Depositary for cancellation of 2003 Notes from the date of execution such Restricted ADSs and receipt of the corresponding number of Restricted ADS Side Letter until Shares, each such Selling Stockholder to complete and sign a withdrawal certification substantially in the date hereofform of Exhibit C hereto (the “Withdrawal Certification”) and to deliver such Withdrawal Certification, accompanied by the Restricted ADR(s) evidencing the Restricted ADSs being surrendered, to the Depositary at the address, and in the manner, set forth on Exhibit C hereto, and (iii) in the event the Selling Stockholder wishes to deliver the Restricted ADR(s) evidencing the Restricted ADSs to the Depositary for the issuance and delivery of Sale ADSs pursuant to the terms of the Sale as contemplated by the F-3 Registration Statement, each such Selling Stockholder to complete and sign an issuance certification substantially in the form of Exhibit D hereto (the “Issuance Certification”) and to deliver such Issuance Certification, accompanied by the Restricted ADR(s) evidencing the Restricted ADSs being surrendered in connection with the issuance and delivery of Sale ADSs, to the Depositary at the address, and in the manner, set forth on Exhibit D hereto.
Appears in 1 contract
Company Assistance. The Company agrees We agree to (i) provide commercially reasonable assistance to the Depositary upon the reasonable request of and to the Depositary in the establishment of the such procedures contemplated herein to enable the acceptance of the deposit by the Company of the Conversion Restricted Shares or WPP Shares, as the case may be, the issuance of Conversion the Restricted ADSs to and the applicable Converting Noteholders for delivery in the form of Conversion Restricted ADRs, the transfer of Restricted ADSs, the Conversion Restricted ADRs (removal of the transfer and the Conversion other restrictions with respect to Restricted ADSs represented thereby)in order to create unrestricted ADSs, the cancellation of Conversion Restricted ADSs and the withdrawal of the Conversion Restricted Shares, and the conversion WPP Shares upon surrender of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)for cancellation, and (ii) take all commercially reasonable steps reasonably requested by the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or WPP Shares, the issuance of Conversion the Restricted ADSs or freely transferable ADSs, the issuance and delivery of the Conversion Restricted ADRs or freely transferable ADRs, the transfer of Conversion the Restricted ADRs (ADSs, the removal of the transfer and the Conversion other restrictions with respect to Restricted ADSs represented thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby)in order to create unrestricted ADSs, the cancellation of Conversion Restricted ADSs or freely transferable ADSs and the withdrawal of Conversion Restricted WPP Shares or Shares and the conversion upon presentation of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)for cancellation, in each case upon the terms and conditions set forth herein, do not prejudice any substantial existing rights of Holders and Beneficial Owners of ADSs and do not violate the provisions of the Securities Act or any other applicable laws. We shall provide the Depositary with written instructions to issue Restricted ADSs substantially in the form affixed hereto as Exhibit C (the “Restricted ADS Issuance Instructions Letter”), together with the legend(s), if any, to be affixed to the Restricted ADRs, which legend(s) shall (i) be in a form reasonably satisfactory to the Depositary and (ii) set forth the specific circumstances under which the Restricted ADRs and the Restricted ADSs evidenced thereby may be transferred or the Restricted Shares withdrawn. In furtherance of the foregoing, the Company (i) confirms (after consultation we shall, concurrent with its U.S. counsel) that, assuming the receipt of a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, the deposit of Conversion Restricted Shares or Shares, as the case may be, by the Company, the issuance of Conversion Restricted ADSs or freely transferable ADSs in respect thereof and the delivery of such Conversion this Letter Agreement and any Restricted ADSs ADS Issuance Instructions Letter we deliver under this Letter Agreement, cause (for delivery in the form of Conversion Restricted ADRsA) or freely transferable ADSs our U.S. counsel to deliver an opinion to the applicable Converting Noteholders does not violate the registration requirements of the Securities ActDepositary stating, (ii) confirms (after consultation with its U.S. counsel) thatinter alia, as a result of the Guarantee and upon the effective date of the Second Supplemental Indenture, the exception provided under Section 3(a)(9) of the Securities Act will be available for the issuance of Shares and ADSs upon the conversion of the 2003 Notes, (iii) represents that (ai) this Letter Agreement has been duly executed and delivered by a duly authorized officer of the Company and constitutes the legal, is valid, binding and enforceable obligation against the Company under the laws of the CompanyState of New York, except as the enforcement thereof may be limited by bankruptcy, insolvency (bincluding, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and (ii) as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), the F-4 Registration Statement has been declared effective by the Commission and to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the F-4 Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or is pending or contemplated by the Commission under the Securities Act or the Exchange Act, and (iv) the deposit of WPP Shares against the issuance of ADSs and the deposit of Restricted WPP Shares against the issuance of Restricted ADSs and the consummation of the transactions contemplated by the Deposit Agreement as supplemented by this Letter Agreement and the performance of all transactions contemplated hereby have been duly authorized by all necessary corporate action and will not result in a breach of, or constitute a default under, the articles of association or memorandum of association of the Company or, except as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and do not and will not result in a violation violate the provisions of any lawU.S. federal statute or rule, rule order or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and regulation applicable to the Company, except as would not have a material adverse effecttransaction of which we are aware, and (cB) except as would not have a material adverse effect, it has obtained, prior our English counsel to deliver an opinion to the date hereofDepositary in a form reasonably acceptable to the Depositary stating that (i) the Company has duly authorized and executed the Letter Agreement, all (ii) the Letter Agreement is a legal valid and binding agreement of the Company enforceable against the Company, and (iii) none of the terms of the Letter Agreement, and none of the transactions contemplated in the Restricted ADS Issuance Instructions Letter violate any English law of general application. In connection with the issuance of Restricted ADSs, we hereby instruct the Depositary, and the Depositary agrees, upon the terms and subject to the conditions set forth in this Letter Agreement, to issue and deliver Restricted WPP ADSs only (x) in the case of initial issuance, upon receipt of (i) the applicable Restricted ADS Issuance Instructions Letter, (ii) the requisite approvals from all number of Restricted WPP Shares, (iii) the opinions of counsel identified above, and (iv) subject to the terms of the Deposit Agreement as supplemented by this Letter Agreement, payment of the applicable regulatory authorities. The fees, taxes and expenses otherwise payable under the terms of the Deposit Agreement upon the deposit of Restricted WPP Shares and the issuance of Restricted ADSs, (y) in the event of any corporate action of the Company confirms that there have been no conversions which results in the issuance of 2003 Notes from Restricted ADSs to the date of execution Holder(s) of the Restricted ADSs and (z) in the event of any transfer of Restricted ADSs by a Holder of Restricted ADSs in circumstances that require the issuance of Restricted ADSs to the transferee, subject, however, to receipt of the applicable opinions contemplated herein or in any Restricted ADS Side Issuance Instructions Letter until or in the date hereofrestrictive legend(s) affixed to the particular Restricted ADR.
Appears in 1 contract
Samples: Deposit Agreement (WPP Group PLC)
Company Assistance. The Company agrees to (i) provide commercially reasonable assistance to the Depositary upon the request of and to the Depositary in the establishment of the such procedures contemplated herein to enable the acceptance of the deposit solely by the Company Affiliate Holders of the Conversion Restricted Designated Shares or Shares, as in connection with the case may beOffer, the issuance of Conversion Designated Restricted ADSs, the tender of the Designated Restricted ADSs to the applicable Converting Noteholders for delivery in the form of Conversion Restricted ADRsOffer, the transfer of the Conversion Designated Restricted ADRs (and the Conversion Restricted ADSs represented thereby)ADSs, the cancellation of Conversion Restricted ADSs and the withdrawal of the Conversion Restricted Shares, Designated Shares and the conversion of Conversion Restricted ADRs (and the Conversion Designated Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)ADSs, and (ii) take all commercially reasonable steps requested by the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or Designated Shares, the issuance of Conversion the Designated Restricted ADSs, the transfer of the Designated Restricted ADSs, the conversion of Designated Restricted ADSs or into freely transferable ADSs, the issuance and delivery of the Conversion Restricted ADRs or freely transferable ADRs, the transfer of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby), the cancellation of Conversion Restricted ADSs or freely transferable ADSs and the withdrawal of Conversion Restricted Shares or Shares and the conversion of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)Designated Shares, in each case upon the terms and conditions set forth herein, do not prejudice any substantial existing rights of Holders and Beneficial Owners of ADSs and do not violate the provisions of the Securities Act or any other applicable laws. In furtherance of the foregoing, the Company shall cause its Korean counsel to deliver an opinion to the Depositary stating, inter alia, that (i) confirms the Company has duly authorized and executed the Letter Agreement, (after consultation with ii) the Letter Agreement constitutes a legal, valid and binding obligation of the Company under Korean law enforceable against the Company upon its U.S. counselterms, (iii) that, assuming the receipt of a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, all approvals required by Korean law to permit the deposit of Conversion Restricted Shares or Designated Shares, as upon the case may beterms and for the purpose described in the Letter Agreement, have been obtained and are in effect, and (iv) the deposit of the Designated Shares by the CompanyAffiliate Holders, the issuance by the Depositary of Conversion the Designated Restricted ADSs or freely transferable to the Affiliate Holders, the tender of the Designated Restricted ADSs in respect thereof the Offer, the remittance by Citibank, in its capacity as tender agent for the Offer, of the Offer Price to the applicable Affiliate Holders, the transfer of the Designated Restricted ADSs to the Offeror pursuant to the terms of the Offer, and the cancellation of the Designated Restricted ADSs acquired by the Offeror and the delivery of such Conversion Restricted ADSs (for delivery in the form of Conversion Restricted ADRs) or freely transferable ADSs corresponding Designated Shares to the applicable Converting Noteholders does Offeror do not, and will, not violate the registration requirements of the Securities Act, (ii) confirms (after consultation with its U.S. counsel) that, as a result of the Guarantee and upon the effective date of the Second Supplemental Indenture, the exception provided under Section 3(a)(9) of the Securities Act will be available for the issuance of Shares and ADSs upon the conversion of the 2003 Notes, (iii) represents that (a) this Letter Agreement has been duly executed and delivered by a duly authorized officer of the Company and constitutes the legal, valid, binding and enforceable obligation of the Company, (b) this Letter Agreement and the performance of all transactions contemplated hereby have been duly authorized by all necessary corporate action and will not result in a breach ofcontravene, or constitute a default underconflict, the articles with any Korean law of association or memorandum of association of the Company or, except as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and do not and will not result in a violation of any law, rule or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and applicable to the Company, except as would not have a material adverse effect, and (c) except as would not have a material adverse effect, it has obtained, prior to the date hereof, all requisite approvals from all applicable regulatory authorities. The Company confirms that there have been no conversions of 2003 Notes from the date of execution of the Restricted ADS Side Letter until the date hereofgeneral application.
Appears in 1 contract
Samples: Deposit Agreement (Gmarket Inc.)
Company Assistance. The Company agrees We agree to (i) provide commercially reasonable assistance to the Depositary upon the reasonable request of and to the Depositary in the establishment of the such procedures contemplated herein to enable the acceptance of the deposit by the Company of the Conversion Restricted Shares or Shares, as the case may be, the issuance exchange of Conversion Restricted Old WPP ADSs for Restricted ADSs and the delivery of Restricted ADRs with respect thereto to the applicable Converting Noteholders for delivery persons listed in the form Schedule I of Conversion Restricted ADRsExhibit A hereto, the transfer of Restricted ADSs, the Conversion Restricted ADRs (removal of the transfer and the Conversion other restrictions with respect to Restricted ADSs represented thereby)in order to create unrestricted ADSs, the cancellation of Conversion Restricted ADSs and the withdrawal of the Conversion Restricted Shares, and the conversion Shares upon surrender of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)for cancellation, and (ii) take all commercially reasonable steps reasonably requested by the Depositary to ensure that the acceptance of the deposit of the Conversion Restricted Shares or Shares, the exchange of Restricted Old WPP ADSs for Restricted ADSs, the issuance of Conversion the Restricted ADSs or freely transferable ADSs, the issuance and delivery of the Conversion Restricted ADRs or freely transferable ADRs, the transfer of Conversion the Restricted ADRs (ADSs, the removal of the transfer and the Conversion other restrictions with respect to Restricted ADSs represented thereby) or freely transferable ADRs (and the freely transferable ADSs represented thereby)in order to create unrestricted ADSs, the cancellation of Conversion Restricted ADSs or freely transferable ADSs and the withdrawal of Conversion Restricted Shares or Shares and the conversion upon presentation of Conversion Restricted ADRs (and the Conversion Restricted ADSs represented thereby) into freely transferable ADRs (and the freely transferable ADSs represented thereby)for cancellation, in each case upon the terms and conditions set forth herein, do not prejudice any substantial existing rights of Holders and Beneficial Owners of ADSs and do not violate the provisions of the Securities Act or any other applicable laws. We shall provide the Depositary with written instructions to issue Restricted ADSs substantially in the form affixed hereto as Exhibit A (the “Restricted ADS Issuance Instructions Letter”), together with the legend(s), if any, to be affixed to the Restricted ADRs, which legend(s) shall (i) be in a form reasonably satisfactory to the Depositary and (ii) set forth the specific circumstances under which the Restricted ADRs and the Restricted ADSs evidenced thereby may be transferred or the Restricted Shares withdrawn. In furtherance of the foregoing, the Company (i) confirms (after consultation we shall, concurrent with its U.S. counsel) that, assuming the receipt of a fully and properly completed 2001 Note Conversion Notice or 2003 Note Conversion Notice, as the case may be, and assuming the certifications contained therein are true, the deposit of Conversion Restricted Shares or Shares, as the case may be, by the Company, the issuance of Conversion Restricted ADSs or freely transferable ADSs in respect thereof and the delivery of such Conversion Restricted ADSs this Letter Agreement, cause (for delivery in the form of Conversion Restricted ADRsA) or freely transferable ADSs our U.S. counsel to deliver an opinion to the applicable Converting Noteholders does not violate the registration requirements of the Securities ActDepositary stating, (ii) confirms (after consultation with its U.S. counsel) thatinter alia, as a result of the Guarantee and upon the effective date of the Second Supplemental Indenture, the exception provided under Section 3(a)(9) of the Securities Act will be available for the issuance of Shares and ADSs upon the conversion of the 2003 Notes, (iii) represents that (ai) this Letter Agreement has been duly executed and delivered by a duly authorized officer of the Company and constitutes the legal, is valid, binding and enforceable obligation against the Company under the laws of the CompanyState of New York, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), (bii) the exchange of Restricted Old WPP ADSs for Restricted ADSs and the issuance and delivery of ADSs in accordance with this Letter Agreement and the performance Restricted ADS Issue Instruction Letter do not require registration under the Securities Act, and (iii) the deposit of all Restricted Shares against the issuance of Restricted ADSs and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action and will not result in a breach of, or constitute a default under, the articles of association or memorandum of association of the Company or, except Deposit Agreement as would not have a material adverse effect, any agreement or instrument to which it is a party or is bound, and supplemented by this Letter Agreement do not and will not result in a violation violate the provisions of any lawU.S. federal statute or rule, rule order or regulation, or any judgement, order, decree, determination or award of any court or governmental authority, which is now in effect and regulation applicable to the Company, except as would not have a material adverse effecttransaction of which we are aware, and (cB) except as would not have a material adverse effect, it has obtained, prior our Jersey counsel to deliver an opinion to the date hereofDepositary in a form reasonably acceptable to the Depositary stating that (i) the Company has duly authorized and executed the Letter Agreement, all (ii) the Letter Agreement is a legal valid and binding agreement of the Company enforceable against the Company, and (iii) none of the terms of the Letter Agreement, and none of the transactions contemplated in the Restricted ADS Issuance Instructions Letter violate any Jersey law of general application. In connection with the issuance of Restricted ADSs, we hereby instruct the Depositary, and the Depositary agrees, upon the terms and subject to the conditions set forth in this Letter Agreement, to issue and deliver Restricted ADSs only (x) in the case of initial issuance, upon receipt of (i) the Restricted ADS Issuance Instructions Letter, (ii) the requisite approvals from all number of Restricted Shares, (iii) the opinions of counsel identified above, and (iv) subject to the terms of the Deposit Agreement as supplemented by this Letter Agreement, payment of the applicable regulatory authorities. The fees, taxes and expenses otherwise payable under the terms of the Deposit Agreement upon the deposit of Restricted Shares and the issuance of Restricted ADSs, (y) in the event of any corporate action of the Company confirms that there have been no conversions which results in the issuance of 2003 Notes from Restricted ADSs to the date of execution Holder(s) of the Restricted ADSs and (z) in the event of any transfer of Restricted ADSs by a Holder of Restricted ADSs in circumstances that require the issuance of Restricted ADSs to the transferee, subject, however, to receipt of the applicable opinions contemplated herein or in the Restricted ADS Side Issuance Instructions Letter until or in the date hereofrestrictive legend(s) affixed to the particular Restricted ADR.
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