EXHIBIT 4.4
EXECUTION VERSION
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is made and entered into as of the 12th day of June 2006, by and among Gmarket,
Inc. (the "Company"), a corporation organized and existing under the laws of the
Republic of Korea ("Korea"), Interpark Corporation (the "Controlling
Shareholder"), a corporation organized and existing under the laws of Korea, the
Major Stockholders (as defined below) and each of the holders (the "Holders") of
shares of Registrable Securities (as defined below), listed on Schedule A
hereto.
WHEREAS, the Company desires to provide the Holders with certain rights to
register shares of the Company's common stock, par value Won 100 per share (the
"Common Stock"), as specifically set forth herein.
WHEREAS, this Agreement amends, restates and supersedes, in its entirety
that certain Registration Rights Agreement, dated as of December 23, 2004, by
and among the Company, the Controlling Shareholder, the Major Stockholders
(other than Yahoo Korea (as defined below)) and each of the Holders listed on
Schedule A hereto (other than Yahoo Korea);
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
"Adverse Disclosure" means public disclosure of material non-public
information relating to a significant transaction, which disclosure (i) would,
in the good faith judgment of the Board, after consultation with outside
counsel, be required to be made in any registration statement filed with the FSC
or the SEC (as applicable) or any other Governmental Authority by the Company so
that such registration statement would not be materially misleading; (ii) would
not, in the good faith judgment of the Board, after consultation with outside
counsel, be required to be made but for the filing of such a registration
statement; and (iii) would, in the good faith judgment of the Board, have a
material adverse effect on the financial condition, results of operations or
business of the Company and its subsidiaries, taken as a whole or a material
adverse effect on the Company's ability to complete such significant transaction
or on the terms upon which such significant transaction can be completed.
"Affiliate" means, with respect to any Person, any other Person that (a)
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, (b) is an
officer, director, general partner, trustee or manager of such Person, or of a
Person described in clause (a) of this sentence, or (c) is a Relative of such
specified Person or of an individual described in clause (a) or (b) of this
sentence. As used in this definition, "Relative" means with respect to any
individual, (i) such individual's spouse, (ii) any direct descendent, parent,
grandparent, great grandparent or sibling (in each case, whether by blood or
adoption) of such individual or such individual's spouse, and (iii) any spouse
of a Person described in clause (ii) of this sentence.
"Board" means the Board of Directors of the Company.
"Capital Stock" means, with respect to any Person at any time, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in or issued by such
Person, and with respect to the Company includes, without limitation, any and
all shares of Common Stock.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Equity Securities" means any and all shares of Capital Stock of the
Company, securities of the Company convertible into, or exchangeable or
exercisable for, such shares, and options, warrants or other rights to acquire
such shares and any securities that represent the right to receive the Equity
Securities.
"Form F-3" means a registration under the Securities Act on Form F-3 or
any comparable or successor form or forms.
"FSC" means the Financial Supervisory Commission of Korea and any
successor thereto.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Group" has the meaning assigned to such term in Section 13(d)(3) of the
Exchange Act.
"Investors" means X. Xxxx Praktijk B.V., a Dutch limited liability company
and Techno Pacific Assets Limited, a British Virgin Islands limited corporation.
"Major Stockholders" means the stockholders of the Company listed on
Schedule B hereto.
"Oak IX DutchCo." means X. Xxxx Praktijk B.V., a Dutch limited liability
company.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint stock company,
trust, unincorporated organization, any other legal entity, government or any
agency or political subdivisions thereof or any Group comprised of two or more
of the foregoing.
"Registrable Securities" means, with respect to any registration of
securities of the Company, any Equity Security of the Company held by any Holder
at the time of such registration and all other shares of Common Stock or other
securities of the Company held by any of such Holder as a result of any stock
split or stock dividend or similar event.
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"Registration Expenses" means all expenses (except underwriting discounts)
incurred in connection with performance of or compliance with the terms of this
Agreement, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, the expense of any normal and special audits incident to or
required by any such registration, expenses incurred by employees of the Company
in connection with roadshows or other marketing and promotional efforts
reasonably requested by the managing underwriter, listing fees and annual or
other periodic fees payable to any stock exchange on which the securities are
listed, and the fees and disbursements of counsel for the selling stockholders.
"SEC" means the U.S. Securities and Exchange Commission or any other
federal agency then administering the Securities Act or the Exchange Act and
other federal securities laws.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Yahoo Korea" shall mean Yahoo! Korea Corporation, a corporation organized
and existing under the laws of Korea, and any Affiliate of Yahoo Korea to the
extent it is then a holder of Registrable Securities.
The term "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with applicable law and, if applicable, the declaration or ordering
of the effectiveness of such registration statement.
ARTICLE I
KOREAN LISTING AND REGISTRATION RIGHTS
Section 1. Sections. References in this Article I to "Sections" are to the
Sections of this Article I, unless otherwise specified.
Section 2. Demand Registration. At any time after December 23, 2007, the
Investors or Yahoo Korea may request (the Holder requesting such Korean Demand
Registration being the "Electing Korean Demand Holder") that the Company effect
the registration (including the initial public offering of the Company's
securities) under the Korean Securities and Exchange Act of Registrable
Securities (a "Korean Demand Registration"). Upon receipt of such demand, the
Company shall use its best efforts to effect such Korean Demand Registration as
soon as practicable and, in any event, to file within ninety (90) days of
receipt of such request, a listing application and registration statement under
the Korean Securities and Exchange Act covering the Registrable Securities
subject to such request, subject to the limitations set forth in Section 3. The
Company may include in any Korean Demand Registration any other shares of Common
Stock (including issued and outstanding shares of Common Stock as to which the
holders have contracted with the Company for "piggyback" registration rights) so
long as the inclusion in such registration thereof will not, in the reasonable
judgment of the managing underwriter(s), if any, materially and adversely
interfere with the timing, pricing or marketing in accordance with the intended
method of sale or other disposition of all Registrable Securities
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sought to be registered. If it is determined as provided above that there will
be such interference, the shares of Common Stock sought to be so included shall
be excluded to the extent deemed appropriate by the managing underwriter(s).
Section 3. Limitations. The Company's obligation to effect a Korean Demand
Registration requested pursuant to Section 2 shall be subject to the following
limitations:
(a) The Company shall not be required to effect any Korean Demand
Registration within three (3) months of the effectiveness of a registration of
Registrable Securities registered pursuant to a previous Korean Demand
Registration effected by the Company.
(b) The Company may defer its obligations to effect a Korean Demand
Registration if, in the good faith judgment of the Board, filing a registration
statement with the FSC at the time a Korean Demand Registration is requested
would require Adverse Disclosure; provided that such deferral may not extend
beyond the earlier to occur of (i) ninety (90) days after the date upon which
such filing would otherwise be required pursuant to Section 2, or (ii) the date
upon which filing of a registration statement with the FSC would not require
disclosure that would constitute Adverse Disclosure therein.
(c) The Company shall not be required to effect more than two (2)
Korean Demand Registrations on behalf of the Investors and more than one (1)
Korean Demand Registration on behalf of Yahoo Korea (counting for these purposes
only registrations which have been declared or ordered effective and pursuant to
which securities have been sold).
(d) The Company shall not be required to effect any Korean Demand
Registration the aggregate gross proceeds of which are not at least Won
2,000,000,000.
(e) The Company shall not be required to effect a Korean Demand
Registration on behalf of Yahoo Korea if the Company has, on or before the date
of a request by Yahoo Korea for a Korean Demand Registration, consummated a firm
commitment underwritten offering of Common Stock to the public pursuant to the
Securities Act in which (x) aggregate offering proceeds to the Company is at
least $15,000,000 and (y) the per-share price to the public for such shares
shall be at least $1.20 (appropriately adjusted for any combination,
consolidations, stock splits or stock distributions or stock dividends with
respect to such shares).
Section 4. Selection of Underwriter for Korean Demand Registration. Any
Korean Demand Registration and related offering shall be managed by the Electing
Korean Demand Holder as follows: the Electing Korean Demand Holder shall have
the right subject, in each case, to the approval of the Company (which shall not
be unreasonably withheld) to select the managing underwriter(s) for such
offering and shall, in consultation with the managing underwriter(s), have the
right to determine the aggregate number or principal amount of Registrable
Securities to be included in such registration and offering (subject to
applicable limitations set
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forth herein), the offering price per unit of Registrable Security, the
underwriting discounts and commissions per unit of Registrable Security, the
terms of the underwriting agreement, the timing of the registration and related
offering (subject to applicable limitations set forth herein), counsel to the
Electing Korean Demand Holder, and all other administrative matters related to
the registration and related offering. The Company, each seller of securities
included by the Company in any Korean Demand Registration in accordance with
Section 2 and the Major Stockholders (other than Yahoo Korea unless Yahoo Korea
is the Electing Korean Demand Holder or is selling securities in the offering)
shall enter into an underwriting agreement in customary form with the
underwriters selected by the Electing Korean Demand Holder in accordance with
this Section 4 and shall enter into such other customary agreements and take all
such other customary actions (including participation by the Company's
management in roadshows and other meetings with investors) as may reasonably be
requested to facilitate the disposition of the Registrable Securities.
Section 5. Piggyback Registration Rights. At any time that the Company
proposes to register with the FSC, or list on the Korea Stock Exchange or
KOSDAQ, any Equity Securities for sale solely for cash, for its own account, for
the account of a stockholder or stockholders (including pursuant to Section 2),
or both (a "Korean Company Registration"), the Company shall give the Holders
prompt written notice of its intention to do so and of the intended method of
sale (the "Korean Registration Notice"). Each of the Holders may request
inclusion of any Registrable Securities in such Korean Company Registration by
delivering to the Company, within twenty (20) days after receipt of the Korean
Registration Notice, a written notice (the "Korean Piggyback Notice") stating
the number or principal amount of Registrable Securities proposed to be included
and that such securities are to be included in any underwriting only on the same
or equivalent terms and conditions as the shares of Equity Securities otherwise
being sold through underwriters under such registration. The Company shall use
its best efforts to cause all Registrable Securities specified in the Korean
Piggyback Notice(s) to be included in the Korean Company Registration and any
related offering, all to the extent requisite to permit the sale by the
participating Holders of such Registrable Securities in accordance with the
method of sale applicable to the other Equity Securities included in the Korean
Company Registration.
Section 6. Limitations on Piggyback Registrations. The Company's
obligation to include Registrable Securities in the Korean Company Registration
pursuant to Section 5 shall be subject to the following limitations: if the
managing underwriter(s), if any, of an offering related to the Korean Company
Registration determines in its reasonable judgment that marketing factors
require a limitation of the number or principal amount of securities that can be
included in such offering, the managing underwriter(s) may exclude the
appropriate number or principal amount of securities held by the securityholders
of the Company, including the Holders, from such registration. If the managing
underwriter(s) determines to exclude from such offering any Registrable
Securities that the Holders desire to include, or any securities that other
Company securityholders with applicable registration rights desire to include,
the participating Holder(s) and such other Company securityholders, if any
(except for such Person or Persons, if any, upon whose demand such Registration
is being made) shall share pro rata in the portion of such offering available to
them (the "Available Portion"). Such pro rata allocation of the Available
Portion between the Holder, on the one hand, and such other Company
securityholders, on the other hand, shall be based on the relation between the
aggregate number or amount of Equity Securities that are Registrable Securities
of the Holder, on the one hand, and the aggregate number or amount of Equity
Securities that such Company securityholders with applicable registration rights
are entitled to include, on the other hand.
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Section 7. Selection of Underwriter for Piggyback Registration. Any Korean
Company Registration and related offering shall be managed by the Company; the
Company shall have the power to select the managing underwriter(s) for such
offering and shall, in consultation with the managing underwriter(s), have the
power to determine the offering price, the underwriting discounts and
commissions, the terms of the underwriting agreement, the timing of the
registration and related offering, counsel to the Company, and all other
administrative matters related to the registration and related offering. To the
extent that a Holder participates in a Korean Company Registration and related
offering pursuant to Section 5, such Holder shall enter into, and sell its
Registrable Securities only pursuant to, the underwriting agreement arranged by
the Company and acceptable to such Holder, and shall either commit to attend the
closing of the offering and take such other actions as may be reasonably
necessary to effect such Holder's participation in the offering and to provide
any assurances reasonably requested by the Company and the managing
underwriter(s) in that regard, or shall deliver to the Company in custody
certificates representing all Registrable Securities to be included in the
Registration and shall execute and deliver to the Company a custody agreement
and a power of attorney, each in form and substance appropriate for the purpose
of effecting such Holder's participation in the Korean Company Registration and
related offering and otherwise reasonably satisfactory to the Company. If a
participating Holder disapproves of the features of the Korean Company
Registration and related offering, such participating Holder may elect to
withdraw therefrom (in whole or in part) by written notice to the Company and
the managing underwriter(s) delivered no later than seven (7) days prior to the
effectiveness of the applicable registration statement and the Registrable
Securities of such participating Holder shall thereupon be withdrawn from such
registration.
Section 8. Registration Procedures. If and whenever the Company is
required pursuant to this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities, the Company shall, as
expeditiously as reasonably practicable:
(a) prepare and file with the Korea Stock Exchange or KOSDAQ
Committee a preliminary listing application and official listing application
together with all documents required for such applications;
(b) prepare and file with the FSC a registration statement
(including a prospectus therein, if applicable) with respect to such securities
and use its best efforts to cause such registration statement to become and
remain effective for such period as may be necessary to permit the successful
marketing of such securities;
(c) prepare and file with the FSC such amendments and supplements to
such registration statement and the prospectus used in connection therewith and
use its best efforts to cause each such amendment to become effective, as may be
necessary to comply with the Korean Securities and Exchange Act and the rules of
the FSC thereunder; and to keep such registration statement effective for such
period as may be necessary to permit the successful marketing of such
securities;
(d) furnish to the participating Holders such number of prospectuses
and preliminary prospectuses in conformity with the requirements of the Korean
Securities and
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Exchange Act, and such other documents as the participating Holders may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities being sold;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering (with each securityholder
participating in such underwriting also entering into and performing its
obligations under such an agreement);
(f) notify each holder of Registrable Securities promptly, and, if
requested by such holder, confirm such advice in writing, (i) when a
registration statement has become effective and when any post-effective
amendments and supplements to such registration statement become effective, (ii)
of the issuance by the FSC or any other securities authority of any stop order,
injunction or other order or requirement suspending the trading of Registrable
Securities or the effectiveness of a registration statement or the initiation of
any proceedings for that purpose, (iii) if, between the effective date of a
registration statement and the closing of any sale of securities covered
thereby, pursuant to any agreement to which the Company is a party, the
representations and warranties of the Company contained in such agreement cease
to be true and correct or if the Company receives any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose or (iv) of
the happening of any event as a result of which such registration statement or
the related prospectus contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; and use all reasonable efforts to obtain
the withdrawal of any order suspending the trading of Registrable Securities or
the effectiveness of a registration statement at the earliest possible time;
(g) upon written request by any underwriters of the offering, and
subject to applicable rules and guidelines, cause its external auditors and
attorneys, as applicable, to furnish the participating Holders a signed
counterpart, addressed to the participating Holders, and the underwriters, if
any, of (i) a letter from the external auditors of the Company in the form
customarily furnished to underwriters in firm commitment underwritten offerings,
providing substantially that such auditors are external auditors within the
meaning of the applicable laws concerning External Audit of Joint Stock
Companies and that in the opinion of such auditors the financial statements and
other financial data of the Company included in the registration statement and
the prospectus, and any amendment or supplement to such registration statement
and prospectus, comply as to form in all material respects with the applicable
accounting requirements, and additionally covering such other financial matters
(including information as of the date of such letter) with respect to the
registration in respect of which such letter is being given as the underwriters
may reasonably request; and (ii) an opinion of outside legal counsel to the
Company, dated the effective date of the registration statement, covering
substantially the same matters with respect to the registration statement and
prospectus included therein as are customarily covered (at the time of such
registration) in the opinions of issuer's counsel delivered to the underwriters
in comparable underwritten public offerings;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement; and
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(i) subject to the execution by such Persons of a confidentiality
agreement in customary form reasonably acceptable to the Company, make available
for reasonable inspection by the participating Holders and any participating
underwriter, accountant or other agent retained by the participating Holders,
and any participating underwriter in a Korean Demand Registration, all financial
and other records and pertinent documents, provide reasonable access to
properties of the Company, and cause the Company's Affiliates, employees and
agents to (i) supply all information, (ii) otherwise use their best efforts to
obtain all legal opinions, auditors' consents and comfort letters and (iii)
participate in such road shows and similar marketing efforts, in each case as
may be reasonably requested by the participating Holders, and any such
underwriter, attorney, accountant or agent in connection with the preparation of
such registration statement and the sale of such securities.
Section 9. Furnish Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
the Company with such information regarding such seller and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request.
Section 10. Expenses. The Company shall pay all Registration Expenses in
connection with registration of Registrable Securities pursuant to this
Agreement, including, without limitation, reasonable legal fees and expenses for
participating Holders.
Section 11. Indemnification
(a) In the event of any registration of any securities of the
Company under the Korean Securities and Exchange Act pursuant to this Agreement,
the Company shall, and it hereby does, indemnify and hold harmless, to the
extent permitted by law, the seller of any Registrable Securities covered by
such registration statement, each Affiliate of such seller and their respective
directors, officers, members or general and limited partners (and any director,
officer, and controlling Person of any of the foregoing), each Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
(collectively, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) in respect thereof ("Claims") and expenses (including
attorney's fees and expenses of investigation) to which such Indemnified Party
may become subject under the Korean Securities and Exchange Act or otherwise,
insofar as such Claims or expenses arise out of, relate to or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Korean Securities and Exchange Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading; provided, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such Claim or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or amendment
or supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written
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information furnished to the Company by or on behalf of such seller specifically
stating that it is for use in the preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Indemnified Party and shall survive the transfer of securities by
any seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
this Agreement, that the Company shall have received an undertaking reasonably
satisfactory to it from the prospective seller of such Registrable Securities or
any underwriter to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 11(a)) the Company and all other prospective
sellers or any underwriter, as the case may be, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if 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 or on behalf of such seller or underwriter specifically stating that
it is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement, or a document
incorporated by reference into any of the foregoing. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any of the prospective sellers, or any of their respective
Affiliates, directors, officers or controlling Persons and shall survive the
transfer of securities by any seller. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 11, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; provided, that the failure of the indemnified party
to give notice of the discovery of such claim shall not relieve the indemnifying
party of its obligations under this Section 11 except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such action or proceeding is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
action or proceeding (in which case the indemnified party shall have the right
to assume or continue its own defense and the indemnifying party shall be liable
for any expenses therefor, but in no event will bear the expenses for more than
one firm of counsel for all indemnified parties in each jurisdiction who shall
be approved by the majority of the participating Holders in the registration in
respect of which such indemnification is sought), the indemnifying party will be
entitled to participate in and to assume the defense thereof (at its expense),
jointly with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified 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 for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than costs
of investigation and shall have
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no liability for any settlement made by the indemnified party without the
consent of the indemnifying party, such consent not to be unreasonably withheld.
No indemnifying party will settle any action or proceeding or consent to the
entry of any judgment without the prior written consent of the indemnified
party, unless such settlement or judgment (i) includes as an unconditional term
thereof the giving by the claimant or plaintiff of a release to such indemnified
party from all liability in respect of such action or proceeding and (ii) does
not involve the imposition of equitable remedies or the imposition of any
obligations on such indemnified party and does not otherwise adversely affect
such indemnified party, other than as a result of the imposition of financial
obligations for which such indemnified party will be indemnified hereunder.
(d) (i) If the indemnification provided for in this Section 11 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any Claim or expenses referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions
which resulted in such Claim or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 11(d) as a result of the Claim and
expenses referred to above shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any action or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 11(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in Section 1l(d)(i). No Person
guilty of fraudulent misrepresentation shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(e) Indemnification similar to that specified in this Section 11
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any law or with any governmental authority
other than as required by the Korean Securities and Exchange Act.
(f) The obligations of the parties under this Section 11 shall be in
addition to any liability which any party may otherwise have to any other party.
Section 12. Required Reports. The Company covenants that it will file the
reports required to be filed by it under the Korean Securities and Exchange Act
(or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available such information). Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
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Section 13. Korean Governmental Approvals. The Company will obtain any
Korean governmental approvals that are necessary to be obtained by the Company,
and use its commercially reasonable efforts in assisting Yahoo Korea in
obtaining any Korean governmental approvals that are necessary to be obtained by
Yahoo Korea, in each case as necessary or appropriate for the sale of shares by
Yahoo Korea under the registration statement(s) contemplated by this Article I.
ARTICLE II
U.S. REGISTRATION RIGHTS
Section 1. Sections. References in this Article II to "Sections" are to
the Sections of this Article II, unless otherwise specified.
Section 2. Demand Registration.
(a) At any time after the earlier of (i) December 23, 2007 and (ii)
one hundred and eighty (180) days after the closing of an initial public
offering of the Company's Equity Securities, the Investors or Yahoo Korea may
request (the Holder requesting such U.S. Demand Registration being the "Electing
U.S. Demand Holder") that the Company effect the registration (including an
offering and listing of the Registrable Securities on a national securities
exchange or inter-dealer quotation system in the U.S.) under the Securities Act
of Registrable Securities (a "U.S. Demand Registration"). Upon receipt of such
demand, the Company shall use its best efforts to effect such U.S. Demand
Registration as soon as practicable and, in any event, to file within ninety
(90) days of receipt of such request, a registration statement under the
Securities Act covering the Registrable Securities subject to such request,
subject to the limitations set forth in Section 3. The Company may include in
any U.S. Demand Registration any other shares of Common Stock (including issued
and outstanding shares of Common Stock as to which the holders have contracted
with the Company for "piggyback" registration rights) so long as the inclusion
in such registration thereof will not, in the reasonable judgment of the
managing underwriter(s), if any, materially and adversely interfere with the
timing, pricing or marketing in accordance with the intended method of sale or
other disposition of all Registrable Securities sought to be registered. If it
is determined as provided above that there will be such interference, the shares
of Common Stock sought to be so included shall be excluded to the extent deemed
appropriate by the managing underwriter(s).
(b) After an initial public offering of the Company's Equity
Securities, the Company shall use its commercially reasonable efforts to qualify
for registration on Form F-3. After the Company has qualified for the use of
Form F-3, the Holders shall have the right to request registrations on Form F-3
or any similar short form registration.
Section 3. Limitations. The Company's obligation to effect a U.S. Demand
Registration requested pursuant to Section 2 shall be subject to the following
limitations:
(a) The Company shall not be required to effect any U.S. Demand
Registration within three (3) months of the effectiveness of a registration of
Registrable Securities registered pursuant to a previous U.S. Demand
Registration effected by the Company.
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(b) The Company may defer its obligations to effect a U.S. Demand
Registration if, in the good faith judgment of the Board, filing a registration
statement with the SEC at the time a U.S. Demand Registration is requested would
require Adverse Disclosure; provided that such deferral may not extend beyond
the earlier to occur of (i) ninety (90) days after the date upon which such
filing would otherwise be required pursuant to Section 2, or (ii) the date upon
which filing of a registration statement with the SEC would not require
disclosure that would constitute Adverse Disclosure therein.
(c) The Company shall only be required to effect (i) one (1) U.S.
Demand Registration on behalf of Oak IX DutchCo. and (ii) one (1) U.S. Demand
Registration on behalf of Yahoo Korea (counting for these purposes only
registrations which have been declared or ordered effective and pursuant to
which securities have been sold); provided, however, that the Company shall be
required to effect up to four (4) U.S. Demand Registrations on behalf of Oak IX
DutchCo. on Form F-3 if the Company qualifies for filing on Form F-3 and the
Company shall be required to effect up to four (4) U.S. Demand Registrations on
behalf of Yahoo Korea on Form F-3 if the Company qualifies for filing on Form
F-3.
(d) The Company shall not be required to effect any U.S. Demand
Registration initiated by Oak IX DutchCo the aggregate gross proceeds of which
are not at least US$20,000,000.
(e) The Company shall not be required to effect any U.S. Demand
Registration initiated by Yahoo Korea (i) on or before six (6) months after
closing of an initial public offering of the Company's Equity Securities, or
(ii) the aggregate gross proceeds of which are not at least US$20,000,000,
unless in the case of this clause (ii), the Equity Securities to be included by
Yahoo Korea in the U.S. Demand Registration represent not less than fifty
percent (50%) of the Equity Securities of the Company then held by Yahoo Korea.
Section 4. Selection of Underwriter for U.S. Demand Registration. Any U.S.
Demand Registration and related offering shall be managed by the Electing U.S.
Demand Holder as follows: the Electing U.S. Demand Holder shall have the right
subject, in each case, to the approval of the Company (which shall not be
unreasonably withheld) to select the managing underwriter(s) for such offering
and shall, in consultation with the managing underwriter(s), have the right to
determine the aggregate number or principal amount of Registrable Securities to
be included in such registration and offering (subject to applicable limitations
set forth herein), the offering price per unit of Registrable Security, the
underwriting discounts and commissions per unit of Registrable Security, the
terms of the underwriting agreement, the timing of the registration and related
offering (subject to applicable limitations set forth herein), counsel to the
Electing U.S. Demand Holder, and all other administrative matters related to the
registration and related offering. The Company and each seller of securities
included by the Company in any U.S. Demand Registration in accordance with
Section 2 and the Major Stockholders (other than Yahoo Korea unless Yahoo Korea
is the Electing U.S. Demand Holder or is selling securities in the offering)
shall enter into an underwriting agreement in customary form with the
underwriters selected by the Electing U.S. Demand Holder in accordance with this
Section 4 and shall enter into such other customary agreements and take all such
other customary actions (including participation by the Company's management in
roadshows and other meetings with investors) as may reasonably be requested to
facilitate the disposition of the Registrable Securities.
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Section 5. Piggyback Registration Rights. At any time that the Company
proposes to register with the SEC any Equity Securities for sale solely for
cash, for its own account, for the account of a stockholder or stockholders
(including pursuant to Section 2), or both (a "U.S. Company Registration"), the
Company shall give the Holders prompt written notice of its intention to do so
and of the intended method of sale (the "U.S. Registration Notice"). Each of the
Holders may request inclusion of any Registrable Securities in such U.S. Company
Registration by delivering to the Company, within twenty (20) days after receipt
of the U.S. Registration Notice, a written notice (the "U.S. Piggyback Notice")
stating the number or principal amount of Registrable Securities proposed to be
included and that such securities are to be included in any underwriting only on
the same or equivalent terms and conditions as the shares of Equity Securities
otherwise being sold through underwriters under such registration. The Company
shall use its best efforts to cause all Registrable Securities specified in the
U.S. Piggyback Notice(s) to be included in the U.S. Company Registration and any
related offering, all to the extent requisite to permit the sale by the
participating Holders of such Registrable Securities in accordance with the
method of sale applicable to the other Equity Securities included in the U.S.
Company Registration.
Section 6. Limitations on Piggyback Registrations. The Company's
obligation to include Registrable Securities in the U.S. Company Registration
pursuant to Section 5 shall be subject to the following limitations: if the
managing underwriter(s), if any, of an offering related to the U.S. Company
Registration determines in its reasonable judgment that marketing factors
require a limitation of the number or principal amount of securities that can be
included in such offering, the managing underwriter(s) may exclude the
appropriate number or principal amount of securities held by the securityholders
of the Company, including the Holders, from such registration. If the managing
underwriter(s) determines to exclude from such offering any Registrable
Securities that the Holders desire to include, or any securities that other
Company securityholders with applicable registration rights desire to include,
the participating Holders and such other Company securityholders, if any (except
for such Person or Persons, if any, upon whose demand such Registration is being
made) shall share pro rata in the portion of such offering available to them
(the "Available Portion"). Such pro rata allocation of the Available Portion
between the Holder, on the one hand, and such other Company securityholders, on
the other hand, shall be based on the relation between the aggregate number or
amount of Equity Securities that are Registrable Securities of the Holder, on
the one hand, and the aggregate number or amount of Equity Securities that such
Company securityholders with applicable registration rights are entitled to
include, on the other hand.
Section 7. Selection of Underwriter for Piggyback Registration. Any U.S.
Company Registration and related offering shall be managed by the Company; the
Company shall have the power to select the managing underwriter(s) for such
offering and shall, in consultation with the managing underwriter(s), have the
power to determine the offering price, the underwriting discounts and
commissions, the terms of the underwriting agreement, the timing of the
registration and related offering, counsel to the Company, and all other
administrative matters related to the registration and related offering. To the
extent that a Holder participates in a U.S. Company Registration and related
offering pursuant to Section 5, such Holder shall enter into, and sell its
Registrable Securities only pursuant to, the underwriting agreement arranged by
the Company and acceptable to such Holder, and shall either commit to attend the
closing of the offering and take such other actions as may be reasonably
necessary to effect such Holder's
13
participation in the offering and to provide any assurances reasonably requested
by the Company and the managing underwriter(s) in that regard, or shall deliver
to the Company in custody certificates representing all Registrable Securities
to be included in the Registration and shall execute and deliver to the Company
a custody agreement and a power of attorney, each in form and substance
appropriate for the purpose of effecting such Holder's participation in the U.S.
Company Registration and related offering and otherwise reasonably satisfactory
to the Company. If a participating Holder disapproves of the features of the
U.S. Company Registration and related offering, such participating Holder may
elect to withdraw therefrom (in whole or in part) by written notice to the
Company and the managing underwriter(s) delivered no later than three (3) days
prior to the effectiveness of the applicable registration statement and the
Registrable Securities of such participating Holder shall thereupon be withdrawn
from such registration.
Section 8. Registration Procedures. If and whenever the Company is
required pursuant to this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities, the Company shall, as
expeditiously as reasonably practicable:
(a) prepare and file with the SEC a registration statement
(including a prospectus therein) with respect to such securities and use its
best efforts to cause such registration statement to become and remain effective
for such period as may be necessary to permit the successful marketing of such
securities, but not exceeding ninety (90) days;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith and
use its best efforts to cause each such amendment to become effective, as may be
necessary to comply with the Securities Act and the rules of the SEC thereunder;
and to keep such registration statement effective for that period of time
specified in Section 8(a);
(c) furnish to the participating Holders such number of prospectuses
and preliminary prospectuses in conformity with the requirements of the
Securities Act, and such other documents as the participating Holders may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities being sold;
(d) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering (with each securityholder
participating in such underwriting also entering into and performing its
obligations under such an agreement including furnishing any opinion of counsel
reasonably requested by the managing underwriter);
(e) notify each holder of Registrable Securities promptly, and, if
requested by such holder, confirm such advice in writing, (i) when a
registration statement has become effective and when any post-effective
amendments and supplements to such registration statement become effective, (ii)
of the issuance by the SEC or any other securities authority of any stop order,
injunction or other order or requirement suspending the effectiveness of a
registration statement or the initiation of any proceedings for that purpose,
(iii) if, between the effective date of a registration statement and the closing
of any sale of securities covered thereby pursuant to any agreement to which the
Company is a party, the representations and warranties
14
of the Company contained in such agreement cease to be true and correct or if
the Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose or (iv) of the happening of any
event during the period a registration statement is effective as a result of
which such registration statement or the related prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
use all reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement at the earliest possible time;
(f) upon written request by any underwriters of the offering, and
subject to applicable rules and guidelines, cause its independent certified
public accountants and attorneys, as applicable, to furnish the participating
Holders a signed counterpart, addressed to the participating Holders, and the
underwriters, if any, of (i) a letter from the independent certified accountants
of the Company in the form customarily furnished to underwriters in firm
commitment underwritten offerings, providing substantially that such accountants
are independent certified public accountants within the meaning of the
Securities Act and that in the opinion of such accountants the financial
statements and other financial data of the Company included in the registration
statement and the prospectus, and any amendment or supplement to such
registration statement and prospectus, comply as to form in all material
respects with the applicable accounting requirements of the Securities Act, and
additionally covering such other financial matters (including information as of
the date of such letter) with respect to the registration in respect of which
such letter is being given as the underwriters may reasonably request and as is
consistent with the requirements of Statements on Auditing Standards ("SAS") No.
72; and (ii) an opinion of outside legal counsel to the Company, dated the
effective date of the registration statement, covering substantially the same
matters with respect to the registration statement and prospectus included
therein as are customarily covered (at the time of such registration) in the
opinions of issuer's counsel delivered to the underwriters in comparable
underwritten public offerings;
(g) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under the U.S. securities or
blue sky laws of such jurisdictions as the participating Holders or their
underwriters, if any, shall reasonably request and do any and all other acts and
things which may be necessary or desirable to consummate the disposition of the
securities in such jurisdiction; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified, or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject, or
subject the Company to any tax in any such jurisdiction where it is not then so
subject;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement; and
(i) subject to the execution by such Persons of a confidentiality
agreement in customary form reasonably acceptable to the Company, make available
for reasonable inspection by the participating Holders and any participating
underwriter, accountant or other agent retained by the participating Holders,
and any participating underwriter in a U.S.
15
Demand Registration, all financial and other records and pertinent documents,
provide reasonable access to properties of the Company, and cause the Company's
Affiliates, employees and agents to (i) supply all information, (ii) otherwise
use their best efforts to obtain all legal opinions, auditors' consents and
comfort letters and (iii) participate in such road shows and similar marketing
efforts, in each case as may be reasonably requested by the participating
Holders, and any such underwriter, attorney, accountant or agent in connection
with the preparation of such registration statement and the sale of such
securities.
Section 9. Furnish Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
the Company with such information regarding such seller and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request.
Section 10. Expenses. The Company shall pay all Registration Expenses in
connection with registration of Registrable Securities pursuant to this
Agreement, including, without limitation, reasonable legal fees and expenses for
participating Holders; provided, however, that Yahoo Korea shall be responsible
for the Registration Expenses incurred by it (or by the Company on its behalf)
in connection with a U.S. Demand Registration initiated by Yahoo Korea.
Section 11. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Agreement, the Company shall,
and it hereby does, indemnify and hold harmless, to the extent permitted by law,
the seller of any Registrable Securities covered by such registration statement,
each Affiliate of such seller and their respective directors, officers, members
or general and limited partners (and any director, officer, and controlling
Person of any of the foregoing), each Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof ("Claims") and expenses
(including attorney's fees and expenses of investigation) to which such
Indemnified Party may become subject under the Securities Act, common law or
otherwise, insofar as such Claims or expenses arise out of, relate to or are
based upon (a) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading; provided, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such Claim or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or amendment
or supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller specifically stating that it is for use
in the preparation
16
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Indemnified Party and shall survive
the transfer of securities by any seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
this Agreement, that the Company shall have received an undertaking reasonably
satisfactory to it from the prospective seller of such Registrable Securities or
any underwriter to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 11(a)) the Company and all other prospective
sellers or any underwriter, as the case may be, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if 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 or on behalf of such seller or underwriter specifically stating that
it is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement, or a document
incorporated by reference into any of the foregoing. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any of the prospective sellers, or any of their respective
Affiliates, directors, officers or controlling Persons and shall survive the
transfer of securities by any seller. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 11, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; provided, that the failure of the indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under this Section 11, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such action or proceeding is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
action or proceeding (in which case the indemnified party shall have the right
to assume or continue its own defense and the indemnifying party shall be liable
for any expenses therefor, but in no event will bear the expenses for more than
one firm of counsel for all indemnified parties in each jurisdiction who shall
be approved by the majority of the participating Holders in the registration in
respect of which such indemnification is sought), the indemnifying party will be
entitled to participate in and to assume the defense thereof (at its expense),
jointly with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified 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 for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than costs
of investigation and shall have no liability for any settlement made by the
indemnified party without the consent of the
17
indemnifying party, such consent not to be unreasonably withheld. No
indemnifying party will settle any action or proceeding or consent to the entry
of any judgment without the prior written consent of the indemnified party,
unless such settlement or judgment (i) includes as an unconditional term thereof
the giving by the claimant or plaintiff of a release to such indemnified party
from all liability in respect of such action or proceeding and (ii) does not
involve the imposition of equitable remedies or the imposition of any
obligations on such indemnified party and does not otherwise adversely affect
such indemnified party, other than as a result of the imposition of financial
obligations for which such indemnified party will be indemnified hereunder.
(d) (i) If the indemnification provided for in this Section 11 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any Claim or expenses referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions
which resulted in such Claim or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 11(d) as a result of the Claim and
expenses referred to above shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any action or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 11(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in Section 11(d)(i). 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.
(e) Indemnification similar to that specified in this Section 11
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any law or with any governmental authority
other than as required by the Securities Act.
(f) The obligations of the parties under this Section 11 shall be in
addition to any liability which any party may otherwise have to any other party.
Section 12. Required Reports. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
(or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available such information), and it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
18
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
Section 13. Compliance with Xxxxxxxx-Xxxxx Act. The Company covenants that
it will fully comply with all the requirements of the Xxxxxxxx-Xxxxx Act of
2002, as amended, and any rules and regulations thereunder adopted from time to
time by the SEC and any other applicable laws, in each case to the extent
applicable to the Company.
Section 14. Korean Governmental Approvals. The Company will obtain any
Korean governmental approvals that are necessary to be obtained by the Company,
and use its commercially reasonable efforts in assisting Yahoo Korea in
obtaining any Korean governmental approvals that are necessary to be obtained by
Yahoo Korea, in each case as necessary or appropriate for the sale of shares by
Yahoo Korea under the registration statement(s) contemplated by this Article II.
ARTICLE III
OTHER REGISTRATION RIGHTS, ETC.
Section 1. Certain Offerings. Without limiting the provisions of Articles
I and II, upon request of the Investors and/or Yahoo Korea (such Holder
requesting the assistance being the "Electing Holder"), the Company and the
Major Stockholders will use their best efforts to assist the Electing Holder and
its respective Affiliates in connection with any proposed offer and sale of any
shares of Registrable Securities held by the Electing Holder(s) in any
jurisdiction, including using their best efforts to list such Registrable
Securities on a securities exchange or quotation system to be designated by the
Electing Holder (including, without limitation, the New York Stock Exchange and
NASDAQ), register such Registrable Securities with the relevant governmental
authority, and to facilitate the offer and sale of such Registrable Securities
in depositary receipt, exchangeable bond or any other form, whether or not in
reliance on any exemption from the registration requirements of the Securities
Act. Each of the Company and the Major Stockholders accordingly agrees that it
will, upon the request of the Electing Holder, prepare documents required for
such listing or registration or an offering document in customary form, and
enter into an underwriting or purchase agreement containing customary terms and
provisions reasonably acceptable to the Company, in connection with such a
proposed offer and sale, and take all such other customary actions (including
participation by the Company's management in roadshows and other meetings with
investors) as may reasonably be requested to facilitate the offer and sale of
the Registrable Securities. The Company shall pay all Registration Expenses and
other related expenses, including, without limitation, reasonable legal fees and
expenses of participating Holders.
Section 2. Information. The Company hereby undertakes and agrees that for
so long as any of the shares of Common Stock held by the Holders are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act or the
Holders or any of their respective Affiliates that hold any such securities may
be deemed an "Affiliate" of the Company within the meaning of Rule 144 under the
Securities Act, the Company will, during any period in
19
which it is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, or is not exempt from such reporting requirements pursuant to and
in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder
of such securities and to each prospective purchaser (as designated by such
holder) of such securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Securities Act.
ARTICLE IV
MISCELLANEOUS
Section 1. No Inconsistent Agreements. The Company represents and warrants
that it will not enter into, or cause or permit any of its subsidiaries to enter
into, any agreement which conflicts with or limits or prohibits the exercise of
the rights granted to the Holders of Registrable Securities in this Agreement.
In particular, the Company may not, by any means, grant to any Person any
registration rights with priority over those of the shares of Common Stock held
by Oak IX Dutch Co and Yahoo Korea without the prior written consent of Oak IX
Dutch Co and Yahoo Korea.
Section 2. Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including any
Affiliate of Yahoo Korea that Yahoo Korea may assign any of its rights,
interests or obligations hereunder and any other permitted transferees of any
shares of Common Stock). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
Section 3. Governing Law; Arbitration; Forum; Related Matters.
(a) This Agreement shall be governed in all respects by the laws of
Korea.
(b) Any dispute, controversy or claim arising out of, relating to or
in connection with this Agreement, including any dispute regarding its validity
or termination, or the performance or breach of this Agreement, shall be finally
settled by arbitration in accordance with the provisions set forth in Annex A
hereto.
(c) The parties to this Agreement agree that the appropriate and
exclusive forum for any disputes arising out of this Agreement solely among the
Company, Major Stockholders, and the Holders, in the event that the arbitrator
designated pursuant to Annex A lacks jurisdiction to hear such dispute or in
connection with any request for an injunction or other provisional or
conservatory measures in aid of arbitration as contemplated by Section 3(c) and
Annex A, shall be the Seoul Central District Court. If such court will not hear
any such suit, the parties agree to jurisdiction in the courts of the
jurisdiction of the Company's incorporation. The parties to this Agreement
irrevocably consent to the exclusive jurisdiction of such courts, and agree to
comply with all requirements necessary to give such courts jurisdiction.
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The parties to this Agreement further agree that the parties will not bring suit
with respect to any disputes arising out of this Agreement except as expressly
set forth below for the execution or enforcement of judgment, in any
jurisdiction other than the above specified courts.
(d) The parties further agree, to the extent permitted by law, that
(i) a final and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside Korea by suit on the judgment, a certified
or exemplified copy of which shall be conclusive evidence of the fact and the
amount of indebtedness, and (ii) any order of preliminary relief obtained in any
action or proceeding contemplated above shall be given effect, and will not be
contested, in any other jurisdiction within or outside Korea.
(e) To the extent that the Company or the Major Stockholders or any
of their respective properties, assets or revenues may have or may hereafter
become entitled to, or have attributed to it or its assets, any right of
immunity on the grounds of sovereignty from jurisdiction of any court, from
service of process, or from any legal action, suit or proceeding, including any
action, suit or proceeding to compel arbitration pursuant to Annex A or to
confirm, enforce or execute any arbitration award issued pursuant to Annex A
(including but not limited to, pre-judgment attachment in aid of the
arbitration, attachment upon issuance of an arbitration award, or attachment in
aid of execution of judgment), in each case in any jurisdiction in which such a
proceeding may at any time be commenced with respect to their respective
obligations, liabilities and any other matters arising out of their agreement to
arbitrate or an arbitration award issued hereunder, the Company and the Major
Stockholders, to the fullest extent permitted by law, hereby irrevocably and
unconditionally waive and agree not to plead or claim any such immunity.
Section 4. Enforcement. Each party hereto acknowledges that money damages
would not be an adequate remedy in the event that any of the covenants or
agreements in this Agreement are not performed in accordance with its terms, and
it is therefore agreed that in addition to and without limiting any other remedy
or right such party may have, in accordance with Section 3 and Annex A, apply to
a court of competent jurisdiction or the International Chamber of Commerce for
such equitable relief as such court or tribunal, as the case may be, may deem
just and proper in order to enforce this Agreement or prevent any violation of
its terms and each party waives any objection to the imposition of relief of an
equitable nature if warranted.
Section 5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by first class mail, postage prepaid, as
follows:
21
(a) If to the Company, to:
GMARKET, INC.
Xxxxxxxx X/X 0X,
0000-0, Xxxxxx-xxxx, Xxxxxx-xx
Xxxxx, Xxxxx 137-074
telecopy: 00-0 000-0000
telephone: 00-0 0000-0000
Attention: Young Bae Ku
With a copy to:
DEBEVOISE & XXXXXXXX LLP
13/F Entertainment Building
00 Xxxxx'x Xxxx
Xxxxxxx Xxxx Xxxx
Attention: Xxxx X. Xxx
(b) If to Oak IX DutchCo., to:
OAK INVESTMENT PARTNERS
One Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXX
telecopy: (000) 000-0000
telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxx
With copies to:
XXXX XXXXX & XXXXXXX LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
XXX
telecopy: (000) 000-0000
telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(c) If to Techno, to:
TECHNO PACIFIC ASSETS LIMITED
000 Xxxxxx Xxxxxx #000
Xxxx Xxxx, XX 00000
telecopy: (000) 000-0000
telephone: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
22
(d) If to Yahoo Korea, to:
YAHOO INC.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
telecopy: 000-000-0000
telephone: 000-000-0000
Attention: General Counsel
Section 7. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of (i) the Company, (i)
the holders of more than two-thirds (2/3) of the Registrable Securities, and
(iii) Yahoo Korea, in the event such waiver or amendment would have an adverse
effect on any of the rights or obligations of Yahoo Korea hereunder.
Section 8. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
Section 9. Intent. The terms of Article II of this Agreement are drafted
primarily in contemplation of an offering of Common Stock in the United States
of America. The parties recognize, however, the possibility that the Company
might effect an offering in the United States of America in the form of American
Depositary Receipts or American Depositary Shares. Accordingly, it is agreed
that the Company will not undertake any listing of American Depositary Receipts,
American Depositary Shares or any other security derivative of the Common Stock
unless arrangements have been made satisfactory to the holders of more than
two-thirds (2/3) of the Registrable Securities and Yahoo Korea, for so long as
Yahoo Korea holds at least twenty-five percent (25%) of the Common Stock
initially purchased by Yahoo Korea or any of its Affiliates pursuant to that
certain Stock Purchase Agreement, dated May 31, 2006, between Yahoo and Oak IX
DutchCo, to ensure that the spirit and intent of this Agreement will be
realized, and that the Company is committed to take such actions as are
necessary such that the Holders will enjoy rights corresponding to the rights
hereunder to sell their Registrable Securities in a public offering in the
United States of America as if the Company had listed Common Stock in lieu of
such derivative securities.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
23
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
THE COMPANY:
GMARKET, INC.
By:
-----------------------------------------
Name: Young Bae Ku
Title: Chief Executive Officer
Date:
---------------------------------------
Contact Person: Young Bae Ku
Telephone No.: x00-0-00000000
Telecopy No.: x00-0-0000000
Email Address: xxxx@xxxxxxx.xx.xx
S-1
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
HOLDERS:
OAK IX DUTCHCO:
X. XXXX PRAKTIJK B.V.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
Date:
---------------------------------------
Contact Person: Xxxxxx X. Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Email Address: xx@xxxxx.xxx
S-2
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
INTERPARK CORPORATION
By:
-----------------------------------------
Name: Ki Xxxxx Xxx
Title: Chief Executive Officer
Date:
---------------------------------------
Contact Person: Ki Xxxxx Xxx
Telephone No.: x00-0-00000000
Telecopy No.: x00-0-0000000
Email Address: xxxxxx@xxxxxxxxx.xxx
S-4
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
KI XXXXX XXX
By:
-----------------------------------------
Name: Ki Xxxxx Xxx
Title:
Date:
---------------------------------------
Contact Person: Ki Xxxxx Xxx
Telephone No.: x00-0-0000000
Telecopy No.: x00-0-0000000
Email Address: xxxxxx@xxxxxxxxx.xxx
S-5
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
YOUNG BAE KU
By:
-----------------------------------------
Name: Young Bae Ku
Title: President & CEO
Date:
---------------------------------------
Contact Person: Young Bae Ku
Telephone No.: x00-0-0000-0000
Telecopy No.: x00-0-000-0000
Email Address: xxxx@xxxxxxx.xx.xx
S-7
[GMARKET, INC. REGISTRATION RIGHTS AGREEMENT]
YAHOO KOREA! CORPORATION
By:
----------------------------------------
Name: Nakyang Seong
--------------------------------------
Title: CEO
-------------------------------------
Date: June 5, 2006
--------------------------------------
Contact Person: General Counsel
Telephone No.: (00-0) 0000-0000
Telecopy No.: (00-0) 0000-0000
Email Address: xxxxxx0@xx.xxxxx_xxx.xxx
S-11
SCHEDULE A
Holders
X. Xxxx Praktijk B.V.
Techno Pacific Assets Limited
Yahoo Korea (as defined in this Agreement)
SCHEDULE B
Major Stockholders
Oak IX DutchCo.
Techno Pacific Assets Limited
Interpark Corporation
Ki Xxxxx Xxx
Xxxxx Sun Xx
Xxxxx Bae Xx
Xxxx Gyu Xxx
Xxx Xxxxx Park
Hoseo Venture Investment Union 1st
Yahoo Korea (as defined in this Agreement)
ANNEX A
ARBITRATION PROVISIONS
All terms used but not defined in this Annex A shall have the meanings set
forth in the Agreement. References in this Annex A to "Sections" are to the
Sections of this Annex A, unless otherwise specified.
Section 1. Agreement to Arbitrate. Any and all disputes, controversies or
claims arising out of, relating to or in connection with this Agreement,
including, without limitation any dispute regarding its interpretation, validity
or termination, or the performance or breach thereof shall be finally settled by
arbitration administered by the International Chamber of Commerce (the "ICC").
The arbitration shall be conducted in accordance with the ICC Rules of
Arbitration (the "ICC Rules") in effect at the time of the arbitration to the
extent that such rules have not been modified by agreement of the parties.
Section 2. Arbitrators. The arbitration shall be conducted by three (3)
arbitrators, each of whom shall have experience in complex financial
transactions, consisting of: one (1) to be appointed by the Company and one (1)
to be appointed by the Holder(s) setting forth or defending the Claim and the
third to be appointed by mutual agreement between the first two arbitrators or,
failing agreement within thirty (30) days, by the ICC.
Section 3. Replacement Arbitrators. In the event an appointed arbitrator
may not continue to act as an arbitrator of such panel, then the party (or the
two arbitrators appointed by the parties in the case of the third arbitrator)
that appointed such arbitrator shall have the right to appoint a replacement
arbitrator in accordance with the provisions of Section 2. The parties hereto
agree that in the event an arbitral panel has been appointed to resolve a
dispute under this Agreement which is pending at the time a dispute arises
hereunder, such previously appointed arbitral panel shall be deemed appointed
for purposes of resolving the dispute arising hereunder.
Section 4. Language: Location. Unless the parties otherwise agree, all
submissions and awards in relation to arbitration under this Annex A shall be
made in English and all arbitration proceedings and all pleadings shall be in
English. Original documents in a language other than English shall be submitted
as evidence in English translation accompanied by the original or true copy
thereof. Witnesses not fluent in English may give evidence in their native
tongue (with appropriate translation). The place of arbitration shall be Hong
Kong.
Section 5. Authority. Without limiting the authority conferred on the
arbitral panel by this Annex and the rules specified above, the arbitral panel
shall have the authority to award specific performance.
Section 6. Evidence. The parties to this Agreement agree that the parties
may, within reason, request the production of relevant documents from the other
in the arbitration to the extent deemed appropriate by the arbitral panel. In
addition, the parties to this Agreement agree that the arbitral panel may
exclude evidence it deems to be irrelevant. The parties further agree that the
arbitral panel may rule upon any claim or counterclaim, or any portion thereof
(the "Arbitrated Claim"), without holding an evidentiary hearing, if, after
affording both parties an opportunity to present written submissions and
documentary evidence,
the panel concludes that there is no material issue of fact and that the
Arbitrated Claim can be determined as a matter of law. With respect to
Arbitrated Claims not resolved pursuant to the previous sentence, the arbitral
panel shall, unless the parties otherwise agree, hold an evidentiary hearing,
except that direct testimony of witnesses shall be submitted by sworn affidavit
and, at the request of the other party, the witness submitting the affidavit
shall be made available for cross-examination and if the affiant is not made
available for cross-examination, the affidavit shall be stricken from the record
and shall not be considered as evidence by the arbitral panel; provided, that
the foregoing shall not preclude either party from introducing direct oral
testimony consistent with testimony previously submitted by sworn affidavit.
Section 7. Preliminary Relief. Nothing in this Annex A shall preclude
either party from seeking provisional or conservatory measures (including,
without limitation, preliminary injunctions to prevent breaches of this
Agreement) in aid of arbitration from any court of competent jurisdiction. In
addition, the arbitral panel may, at the request of a party, order provisions or
conservatory measures (including, without limitation, preliminary injunctions to
prevent breaches of this Agreement) and, to the extent permitted by applicable
laws, the parties shall be able to enforce the terms and provisions of such
orders in any court having jurisdiction.
Section 8. Transcripts. At the request of either party or the arbitral
panel, a written transcript shall be made of each hearing before the arbitral
panel. The cost of any stenographic record and all transcripts thereof shall be
prorated equally among all parties ordering copies or, if the arbitral panel has
requested such transcription, the cost shall be prorated equally among the
parties, and shall be paid by such parties directly to the reporting agency.
Section 9. Arbitral Award. Any award in connection with the aforementioned
arbitration proceeding shall be final, binding and not subject to appeal, and
any judgment upon such award may be entered and enforced in any court of
competent jurisdiction. To the extent permitted by applicable laws, the parties
to this Agreement hereby waive all challenges to any award of an arbitrator
under this Annex A. Each of the parties hereby expressly confirms that its
execution of this Agreement and the performance of its obligations thereunder
constitute commercial acts and that the relationships created by this Agreement
constitute commercial relationships. Each of the parties further expressly
confirms that any arbitral award rendered against the Company or the Major
Stockholders pursuant to this Annex A will be enforceable against such party in
accordance with the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards of June 10, 1958 (the "New York Convention") in any
jurisdiction that is a signatory to the New York Convention.
Section 10. Continued Performance During Arbitration. No dispute,
arbitration or other proceeding shall entitle the Company to suspend payment of
dividends otherwise payable to the Holders.
