DEPOSIT AGREEMENT
EXECUTION
COPY
by and
among
GMARKET
INC.
AND
CITIBANK,
N.A.,
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY SHARES ISSUED HEREUNDER
Dated as
of July 5, 2006
TABLE OF
CONTENTS
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ARTICLE
I
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DEFINITIONS
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2
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Section
1.1
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"Affiliate"
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2
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Section
1.2
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"ADS
Record Date"
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3
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Section
1.3
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"American
Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"
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3
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Section
1.4
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"American
Depositary Share(s)" and "ADS(s)"
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3
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Section
1.5
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"Applicant"
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3
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Section
1.6
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"Beneficial
Owner"
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3
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Section
1.7
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"Certificated
ADS(s)"
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3
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Section
1.8
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"Commission"
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4
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Section
1.9
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"Company"
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4
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Section
1.10
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"CSD"
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4
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Section
1.11
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"Custodian"
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4
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Section
1.12
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"Deliver"
and "Delivery"
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4
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Section
1.13
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4
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Section
1.14
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"Depositary"
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4
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Section
1.15
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"Deposited
Securities"
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4
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Section
1.16
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"Dollars"
and "$"
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5
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Section
1.17
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"DTC"
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5
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Section
1.18
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"DTC
Participant"
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5
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Section
1.19
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"Exchange
Act"
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5
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Section
1.20
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"Foreign
Currency"
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5
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Section
1.21
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"Full
Entitlement ADR(s)", "Full Entitlement ADS(s)" and "Full Entitlement
Share(s)"
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5
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Section
1.22
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"Holder(s)"
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5
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Section
1.23
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"Korea"
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5
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Section
1.24
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"Partial
Entitlement ADR(s)", "Partial Entitlement ADS(s)" and "Partial Entitlement
Share(s)"
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5
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Section
1.25
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"Pre-Release
Transaction"
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5
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Section
1.26
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"Principal
Office"
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6
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Section
1.27
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"Registrar"
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6
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Section
1.28
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"Restricted
Securities"
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6
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Section
1.29
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"Restricted
ADR(s)", "Restricted ADS(s)" and "Restricted Shares"
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6
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Section
1.30
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"Securities
Act"
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6
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Section
1.31
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"Share
Xxxxxxxxx"
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0
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Section
1.32
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"Shares"
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7
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Section
1.33
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"Uncertificated
ADS(s)"
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7
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Section
1.34
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"United
States" and "U.S."
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7
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Section
1.35
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"Won"
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7
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ARTICLE
II
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APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
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7
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Section
2.1
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Appointment
of Depositary.
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7
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Section
2.2
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Form
and Transferability of ADSs.
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7
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Section
2.3
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Deposit
with Custodian.
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9
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Section
2.4
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Registration
and Safekeeping of Deposited Securities.
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11
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Section
2.5
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Issuance
of ADSs.
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11
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Section
2.6
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Transfer,
Combination and Split-up of ADRs.
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12
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Section
2.7
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Surrender
of ADSs and Withdrawal of Deposited Securities.
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13
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Section
2.8
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Limitations
on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery,
Transfer, etc.
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14
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Section
2.9
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Lost
ADRs, etc.
|
15
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Section
2.10
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Cancellation
and Destruction of Surrendered ADRs; Maintenance of
Records.
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15
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Section
2.11
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Partial
Entitlement ADSs.
|
15
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Section
2.12
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Certificated/Uncertificated
ADSs.
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16
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Section
2.13
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Restricted
ADSs.
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17
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ARTICLE
III
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CERTAIN
OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs
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19
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Section
3.1
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Proofs,
Certificates and Other Information.
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19
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Section
3.2
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Liability
for Taxes and Other Charges.
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19
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Section
3.3
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Representations
and Warranties on Deposit of Shares.
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20
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Section
3.4
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Compliance
with Information Requests.
|
20
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Section
3.5
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Ownership
Restrictions.
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21
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ARTICLE
IV
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THE
DEPOSITED SECURITIES
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21
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Section
4.1
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Cash
Distributions.
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21
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Section
4.2
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Distribution
in Shares.
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21
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Section
4.3
|
Elective
Distributions in Cash or Shares.
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22
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Section
4.4
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Distribution
of Rights to Purchase Additional ADSs.
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23
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Section
4.5
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Distributions
Other Than Cash, Shares or Rights to Purchase Shares.
|
25
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Section
4.6
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Distributions
with Respect to Deposited Securities in Bearer Form.
|
25
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Section
4.7
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Redemption.
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26
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Section
4.8
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Conversion
of Foreign Currency.
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26
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Section
4.9
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Fixing
of ADS Record Date.
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27
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Section
4.10
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Voting
of Deposited Securities.
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27
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Section
4.11
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Changes
Affecting Deposited Securities.
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28
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Section
4.12
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Available
Information.
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29
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Section
4.13
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Reports.
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29
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Section
4.14
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List
of Holders.
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30
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Section
4.15
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Taxation.
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30
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ARTICLE
V
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THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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31
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Section
5.1
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Maintenance
of Office and Transfer Books by the Registrar.
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31
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Section
5.2
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Exoneration.
|
31
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Section
5.3
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Standard
of Care.
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32
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Section
5.4
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Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
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33
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Section
5.5
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The
Custodian.
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33
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Section
5.6
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Notices
and Reports.
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34
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Section
5.7
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Issuance
of Additional Shares, ADSs etc.
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35
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Section
5.8
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Indemnification.
|
36
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Section
5.9
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Fees
and Charges of Depositary.
|
37
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Section
5.10
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Pre-Release
Transactions.
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37
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Section
5.11
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Restricted
Securities Owners.
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38
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ARTICLE
VI
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AMENDMENT
AND TERMINATION
|
38
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Section
6.1
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Amendment/Supplement.
|
38
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Section
6.2
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Termination.
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39
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ARTICLE
VII
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MISCELLANEOUS
|
40
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Section
7.1
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Counterparts.
|
40
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Section
7.2
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No
Third Party Beneficiaries.
|
40
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Section
7.3
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Severability.
|
40
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Section
7.4
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Holders
and Beneficial Owners as Parties; Binding Effect.
|
40
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Section
7.5
|
Notices.
|
41
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Section
7.6
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Governing
Law and Jurisdiction.
|
42
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Section
7.7
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Assignment.
|
43
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Section
7.8
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Compliance
with U.S. Securities Laws.
|
43
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Section
7.9
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Korean
Law References.
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43
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Section
7.10
|
Titles
and References.
|
44
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EXHIBITS
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|
Form
of ADR.
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A-1
|
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|
Fee
Schedule.
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B-1
|
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DEPOSIT AGREEMENT, dated as of
July 5, 2006, by and among (i) GMARKET Inc., a company organized under the
laws of the Republic of Korea, and its successors (the "Company"),
(ii) Citibank, N.A., a national banking association organized under the
laws of the United States of America acting in its capacity as depositary, and
any successor depositary hereunder (the "Depositary"), and (iii) all
Holders and Beneficial Owners of American Depositary Shares issued hereunder
(all such capitalized terms as hereinafter defined).
W I T N E S S E T
H T H A T:
WHEREAS, the Company desires
to establish with the Depositary an ADR facility to provide inter alia for the deposit of
the Shares (as hereinafter defined) and the creation of American Depositary
Shares representing the Shares so deposited and for the execution and delivery
of American Depositary Receipts evidencing such American Depositary Shares;
and
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in this Deposit Agreement; and
WHEREAS, the American
Depositary Receipts evidencing the American Deposit Shares issued pursuant to
the terms of this Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and
WHEREAS, the American
Depositary Shares to be issued pursuant to the terms of this Deposit Agreement
are to be listed for trading on the NASDAQ National Market; and
WHEREAS,
the Board of Directors of the Company (or an authorized committee thereof) has
duly approved the establishment of an ADR facility upon the terms set forth in
this Deposit Agreement (as hereinafter defined), the execution and delivery of
this Deposit Agreement on behalf of the Company, and the actions of the Company
and the transactions contemplated herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
Section
1.1 "Affiliate" shall
have the meaning assigned to such term by the Commission (as hereinafter
defined) under Regulation C promulgated under the Securities Act (as hereinafter
defined), or under any successor regulation thereto.
2
Section 1.2 "ADS
Record Date" shall
have the meaning given to such term in Section 4.9.
Section 1.3 "American
Depositary Receipt(s)", "ADR(s)"
and "Receipt(s)" shall
mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement in the form
of Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended
from time to time in accordance with the provisions of this Deposit
Agreement. An ADR may evidence any number of ADSs and may, in the
case of ADSs held through a central depository such as DTC, be in the form of a
"Balance Certificate."
Section 1.4 "American
Depositary Share(s)" and "ADS(s)" shall
mean the rights and interests in the Deposited Securities granted to the Holders
and Beneficial Owners pursuant to the terms and conditions of this Deposit
Agreement and, if issued as Certificated ADS(s) (as hereinafter defined), the ADR(s) issued to
evidence such ADSs. ADS(s) may be issued under the terms of this
Deposit Agreement in the form of (a) Certificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are evidenced by ADR(s), or
(b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.12. Unless otherwise specified in this Deposit Agreement or in any
ADR, or unless the context otherwise requires, any reference to ADS(s) shall
include Certificated ADS(s) and Uncertificated ADS(s), individually or
collectively, as the context may require. Each ADS shall represent
one (1) Share until there shall occur a distribution upon Deposited Securities
referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional ADSs are not issued, and
thereafter each ADS shall represent the Deposited Securities determined in
accordance with the terms of such Sections.
Section 1.5 "Applicant" shall
have the meaning given to such term in Section 5.10.
Section 1.6 "Beneficial
Owner" shall
mean, as to any ADS, any person or entity having a beneficial interest deriving
from the ownership of such ADS. A Beneficial Owner of ADSs may or may
not be the Holder of the ADSs. A Beneficial Owner shall be able to
exercise any right or receive any benefit hereunder solely through the person
who is the Holder of the ADSs owned by such Beneficial Owner. Unless
otherwise identified to the Depositary, a Holder shall be deemed to be the
Beneficial Owner of all the ADSs registered in his/her/its name.
Section 1.7 "Certificated
ADS(s)" shall
have the meaning set forth in Section 2.12.
Section 1.8 "Commission" shall
mean the Securities and Exchange Commission of the United States or any
successor governmental agency thereto in the United States.
Section 1.9 "Company" shall
mean GMARKET Inc., a company incorporated and existing under the laws of Korea,
and its successors.
Section 1.10 "CSD" shall
mean any institution authorized under applicable law to effect book-entry
transfers of securities of Korean corporations, which may include the Korea
Securities Depository.
3
Section 1.11 "Custodian" shall
mean, as of the date hereof, Korea Securities Depository, located at 00-0
Xxxxx-xxxx, Xxxxxxxxxx xx-xx, Xxxxx 000-000, Korea, as the custodian for the
purposes of this Deposit Agreement, and any other entity that may be appointed
by the Depositary pursuant to the terms of Section 5.5 as successor,
substitute or additional custodian hereunder. The term "Custodian"
shall mean any Custodian individually or all Custodians collectively, as the
context requires.
Section 1.12 "Deliver"
and "Delivery" shall
mean, when used in respect of ADSs, Deposited Securities and Shares, either
(i) the physical delivery of the certificate(s) representing such
securities, or (ii) the electronic delivery of such securities by means of
book-entry transfer, if available.
Section 1.13 "Deposit
Agreement" shall
mean this Deposit Agreement and all exhibits hereto, as the same may from time
to time be amended and supplemented from time to time in accordance with the
terms of this Deposit Agreement.
Section 1.14 "Depositary" shall
mean Citibank, N.A., a national banking association organized under the laws of
the United States, in its capacity as depositary under the terms of this Deposit
Agreement, and any successor depositary hereunder.
Section 1.15 "Deposited
Securities" shall
mean Shares at any time deposited under this Deposit Agreement and any and all
other securities, property and cash held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of
Section 4.8. The collateral delivered in connection with
Pre-Release Transactions described in Section 5.10 shall not constitute
Deposited Securities.
Section 1.16 "Dollars"
and "$" shall
refer to the lawful currency of the United States.
Section 1.17 "DTC" shall
mean The Depository Trust Company, a national clearinghouse and the central
book-entry settlement system for securities traded in the United States and, as
such, the custodian for the securities of DTC Participants (as hereinafter
defined) maintained in DTC, and any successor thereto.
Section 1.18 "DTC
Participant" shall
mean any financial institution (or any nominee of such institution) having one
or more participant accounts with DTC for receiving, holding and delivering the
securities and cash held in DTC.
Section 1.19 "Exchange
Act" shall
mean the United States Securities Exchange Act of 1934, as amended from time to
time.
Section 1.20 "Foreign
Currency" shall
mean any currency other than Dollars.
Section 1.21 "Full
Entitlement ADR(s)",
"Full
Entitlement ADS(s)" and
"Full
Entitlement Share(s)" shall
have the respective meanings set forth in Section 2.11.
Section 1.22 "Holder(s)" shall
mean the person(s) in whose name the ADSs are registered on the books of the
Depositary (or the Registrar, if any) maintained for such purpose. A
Holder may or may not be a Beneficial Owner. If a Holder is not the
Beneficial Owner of the ADS(s) registered in its name, such person shall be
deemed, for all purposes hereunder, to have all requisite authority to act on
behalf of the Beneficial Owners of the ADSs registered in its name.
4
Section 1.23 "Korea" shall mean the Republic
of Korea.
Section
1.24 "Partial
Entitlement ADR(s)", "Partial Entitlement
ADS(s)" and "Partial Entitlement
Share(s)" shall
have the respective meanings set forth in Section 2.11.
Section 1.25 "Pre-Release
Transaction" shall
have the meaning set forth in Section 5.10.
Section 1.26 "Principal
Office" shall
mean, when used with respect to the Depositary, the principal office of the
Depositary at which at any particular time its depositary receipts business
shall be administered, which, at the date of this Deposit Agreement, is located
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
Section 1.27 "Registrar" shall
mean the Depositary or any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which shall be appointed by the Depositary
to register issuances, transfers and cancellations of ADSs as herein provided,
and shall include any co-registrar appointed by the Depositary for such
purposes. Registrars (other than the Depositary) may be removed and
substitutes appointed by the Depositary. Each Registrar (other than
the Depositary) appointed pursuant to this Deposit Agreement shall be required
to give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit
Agreement.
Section 1.28 "Restricted
Securities" shall
mean Shares, Deposited Securities or ADSs which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and are
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons
performing similar functions) or other Affiliate of the Company, or
(iii) are subject to other restrictions on sale or deposit under the laws
of the United States, Korea, or under a shareholder agreement or the Articles of
Incorporation of the Company or under the regulations of an applicable
securities exchange unless, in each case, such Shares, Deposited Securities or
ADSs are being transferred or sold to persons other than an Affiliate of the
Company in a transaction (a) covered by an effective resale registration
statement, or (b) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs are not, when held by such person(s), Restricted Securities.
Section 1.29 "Restricted
ADR(s)", "Restricted ADS(s)" and "Restricted Shares" shall
have the respective meanings set forth in Section 2.13.
Section 1.30 "Securities
Act" shall
mean the United States Securities Act of 1933, as amended from time to
time.
5
Section 1.31 "Share
Registrar" shall
mean Korea Securities Depository or any other institution organized under the
laws of Korea appointed by the Company to carry out the duties of registrar for
the Shares, and any successor thereto.
Section 1.32 "Shares" shall
mean the Company’s common share, par value Won 100 per share,
validly issued and outstanding and fully paid and may, if the Depositary so
agrees after consultation with the Company, include evidence of the right to
receive Shares; provided that in no event
shall Shares include evidence of the right to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which preemptive
rights have theretofore not been validly waived or exercised; provided further, however, that, if there shall
occur any change in par value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of
the Shares of the Company, the term "Shares" shall thereafter, to the maximum
extent permitted by law, represent the successor securities resulting from such
event.
Section 1.33 "Uncertificated
ADS(s)" shall have the meaning
set forth in Section 2.12.
Section 1.34 "United
States" and "U.S." shall
have the meaning assigned to it in Regulation S as promulgated by the
Commission under the Securities Act.
Section 1.35 "Won" shall
refer to the lawful currency of Korea.
ARTICLE
II
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION AND
DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
Section
2.1 Appointment
of Depositary. The
Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby authorizes and directs the Depositary to act in accordance
with the terms and conditions set forth in this Deposit Agreement and the
applicable ADRs. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms and conditions of this Deposit Agreement shall be deemed for all purposes
to (a) be a party to and bound by the terms of this Deposit Agreement and
the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact,
with full power to delegate, to act on its behalf and to take any and all
actions contemplated in this Deposit Agreement and the applicable ADR(s), to
adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement and the
applicable ADR(s), the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
Section
2.2 Form and
Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced
by definitive ADRs which shall be engraved, printed, lithographed or produced in
such other manner as may be agreed upon by the Company and the
Depositary. ADRs may be issued under this Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be
substantially in the form set forth in Exhibit A to
this Deposit Agreement, with any appropriate insertions, modifications and
omissions, in each case as otherwise contemplated in this Deposit Agreement or
required by law. ADRs shall be (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a
duly authorized signatory of the Registrar, and (iv) registered in the
books maintained by the Registrar for the registration of issuances and
transfers of ADSs. No ADR and no Certificated ADS evidenced thereby
shall be entitled to any benefits under this Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
ADR shall have been so dated, signed, countersigned and
registered. ADRs bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such ADR by the
Depositary. The ADRs shall bear a CUSIP number that is different from
any CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company and which are not ADRs
issued hereunder.
6
(b) Legends. The ADRs may,
with the prior consent of the Company, be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the provisions
of this Deposit Agreement as (i) may be necessary to enable the Depositary
and the Company to perform their respective obligations hereunder, (ii) may
be required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) may be necessary to indicate any special limitations or restrictions
to which any particular ADRs or ADSs are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) may be required
by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the
limitations contained herein and in the ADR, title to an ADR (and to each
Certificated ADS
evidenced thereby) shall be transferable upon the same terms as a certificated
security under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of an ADS
(that is, the person in whose name an ADS is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. Neither
the Depositary nor the Company shall have any obligation nor be subject to any
liability under this Deposit Agreement or any ADR to any holder or any
Beneficial Owner unless such holder is the Holder registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the
Beneficial Owner’s representative, is the Holder registered on the books of the
Depositary.
7
(d) Book-Entry
Systems. The Depositary
shall make arrangements for the acceptance of the ADSs into DTC. A
single ADR in the form of a "Balance Certificate" will evidence all ADSs held
through DTC and will be registered in the name of the nominee for DTC (currently
"Cede & Co.") and will provide that it represents the aggregate number of
ADSs from time to time indicated in the records of the Depositary as being
issued hereunder and that the aggregate number of ADSs represented thereby may
from time to time be increased or decreased by making adjustments on such
records of the Depositary and of DTC or its nominee as hereinafter
provided. As such, the nominee for DTC will be the only "Holder" of
the ADR evidencing all ADSs held through DTC. Citibank, N.A. (or such
other entity as is appointed by DTC or its nominee) may hold the "Balance
Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The
DTC Participants shall for all purposes be deemed to have all requisite power
and authority to act on behalf of the Beneficial Owners of the ADSs held in the
DTC Participants’ respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long
as ADSs are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the ADR registered in the name of the nominee for DTC
will be shown on, and transfers of such ownership will be effected only through,
records maintained by (i) DTC or its nominee (with respect to the interests of
DTC Participants), or (ii) DTC Participants or their nominees (with respect to
the interests of clients of DTC Participants).
Section
2.3 Deposit with
Custodian. Subject
to the terms and conditions of this Deposit Agreement and applicable law, Shares
or evidence of rights to receive Shares (other than Restricted Securities) may
be deposited by any person (including the Depositary in its individual capacity
but subject, however, in the case of the Company or any Affiliate of the
Company, to Section 5.7) at any time, whether or not the transfer books of the
Company or the Share Registrar, if any, are closed, by Delivery of the Shares to
the Custodian. Every deposit of Shares shall be accompanied by the
following: (A) (i) in the case of Shares represented by
certificates issued in registered form, appropriate instruments of
transfer or endorsement, in a form satisfactory to the Custodian,
(ii) in the case of
Shares represented by certificates in bearer form. the requisite coupons
and talons pertaining thereto, and (iii) in the case of Shares delivered by
book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause such Shares
to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary’s fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary
to issue and deliver to, or upon the written order of, the person(s) stated in
such order the number of ADSs representing the Shares so deposited,
(D) evidence satisfactory to the Depositary (which may be an opinion of
counsel) that all necessary approvals have been granted by, or there has been
compliance with the rules and regulations of, any applicable governmental agency
in Korea, and (E) if the Depositary so requires, (i) an agreement,
assignment or instrument satisfactory to the Depositary or the Custodian which
provides for the prompt transfer by any person in whose name the Shares are or
have been recorded to the Custodian of any distribution, or right to subscribe
for additional Shares or to receive other property in respect of any such
deposited Shares or, in lieu thereof, such indemnity or other agreement as shall
be satisfactory to the Depositary or the Custodian and (ii) if the Shares
are registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any
nominee.
8
Without
limiting any other provision of this Deposit Agreement, the Depositary shall
instruct the Custodian not to, and the Depositary shall not knowingly, accept
for deposit (a) any Restricted Securities (except as contemplated in
Section 2.13) nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional
ADSs. No Share shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
Korea and any necessary approval has been granted by any applicable governmental
body in Korea, if any. The Depositary may issue ADSs against evidence
of rights to receive Shares from the Company, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished by the Company or any such custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares or other Deposited
Securities, or any Shares or other Deposited Securities the deposit of which
would violate any provisions of the Articles of Incorporation of the
Company. For purposes of the foregoing sentence, the Depositary shall
be entitled to rely upon representations and warranties made or deemed made
pursuant to this Deposit Agreement and shall not be required to make any further
investigation. The Depositary will comply with written instructions
of the Company (received by the Depositary reasonably in advance) not to accept
for deposit hereunder any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the Company's compliance with the securities laws of the
United States and other jurisdictions.
So long
as the laws or regulations of Korea require the Company's consent for the
deposit of such number of Shares which, when deposited, shall cause the total
number of Shares on deposit to exceed the number of Shares initially deposited
by the Company (including deposits made in connection with all subsequent
offering of ADSs and stock dividends or other distributions related to the
ADSs), the Company hereby consents to the deposit of an unlimited number of
Shares in accordance with the terms and conditions of this Deposit Agreement;
provided, however, that if the
Depositary is notified by the Company that any such deposit would violate the
Articles of Incorporation of the Company or Korean law, the Depositary shall not
accept such deposit.
9
Section
2.4 Registration
and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by
a Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Section
2.5 Issuance of
ADSs. The
Depositary has made arrangements with the Custodian to confirm to the Depositary
(i) that a deposit of Shares has been made pursuant to Section 2.3,
(ii) that such Deposited Securities have been recorded in the name of the
Depositary, the Custodian or a nominee of either on the shareholders’ register
maintained by or on behalf of the Company by the Share Registrar if registered
Shares have been deposited or, if deposit is made by book-entry transfer,
confirmation of such transfer in the books of the CSD, (iii) that all
required documents have been received, and (iv) the person(s) to whom or
upon whose order ADSs are deliverable in respect thereof and the number of ADSs
to be so delivered. Such notification may be made by letter, cable,
telex, SWIFT message or, at the risk and expense of the person making the
deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement and applicable law, shall issue the
ADSs representing the Shares so deposited to or upon the order of the person(s)
named in the notice delivered to the Depositary and, if applicable, shall execute
and deliver at its Principal Office Receipt(s) registered in the name(s)
requested by such person(s) and evidencing the aggregate number of ADSs to which
such person(s) are entitled, but, in each case, only upon payment to the
Depositary of the charges of the Depositary for accepting a deposit, issuing
ADSs (as set forth in Section 5.9 and Exhibit B
hereto) and all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Shares and the issuance of the
ADS(s). The Depositary shall only issue ADSs in whole numbers and
deliver, if applicable, ADR(s) evidencing whole numbers of
ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon
the terms set forth in this Deposit Agreement.
10
Section
2.6 Transfer,
Combination and Split-up of ADRs.
(a) Transfer. The Registrar
shall promptly register the transfer of ADRs (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
(x) cancel such ADRs and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by the ADRs canceled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if
each of the following conditions has been satisfied: (i) the
ADRs have been duly Delivered by the Holder (or by a duly authorized attorney of
the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) the surrendered ADRs have been properly
endorsed or are accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) the surrendered ADRs have been duly stamped (if required by the laws
of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case,
to the terms and conditions of the applicable ADRs, of this Deposit
Agreement and of applicable law, in each case as in effect at the time
thereof.
(b) Combination
& Split Up. The Registrar
shall promptly register the split-up or combination of ADRs (and of the ADSs
represented thereby) on the books maintained for such purpose and the Depositary
shall (x) cancel such ADRs and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
the ADRs cancelled by the Depositary, (y) cause the Registrar to
countersign such new ADRs and (z) Deliver such new ADRs to or upon the
order of the Holder thereof, if each of the following conditions has been
satisfied: (i) the ADRs have been duly Delivered by the Holder
(or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto)
have been paid, subject,
however, in each case, to the terms and conditions of the applicable
ADRs, of this Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(c) Co-Transfer
Agents. The Depositary
may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices on
behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to such
ADRs and will be entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
11
Section
2.7 Surrender of
ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian’s designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the
Depositary, the ADRs Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of
the ADSs has executed and delivered to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be Delivered
to or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in
Section 5.9 and Exhibit B) have been
paid, subject, however, in
each case, to the terms and conditions of the ADRs evidencing the
surrendered ADSs, of this Deposit Agreement, of the Company’s Articles of
Incorporation and of any applicable laws and the rules of the CSD, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
Upon
satisfaction of each of the conditions specified above, the Depositary
(i) shall cancel the ADSs Delivered to it (and, if applicable, the ADRs
evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian’s designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case,
to the terms and conditions of this Deposit Agreement, of the ADRs
evidencing the ADSs so cancelled, of the Articles of Incorporation of the
Company, of any applicable laws and of the rules of the CSD, and to the terms
and conditions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
The
Depositary shall not accept for surrender ADSs representing less than one
Share. In the case of the Delivery to it of ADSs representing a
number other than a whole number of Shares, the Depositary shall cause ownership
of the appropriate whole number of Shares to be Delivered in accordance with the
terms hereof, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs
representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Share represented by the ADSs so surrendered and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding
anything else contained in any ADR or this Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any
Holder so surrendering ADSs, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash
or other property (other than securities) held by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
12
Section
2.8 Limitations on Execution and
Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer,
etc.
(a) Additional
Requirements. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter
of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1,
and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations as the Depositary
and the Company may establish consistent with the provisions of the
representative ADR, if applicable, this Deposit Agreement and applicable
law.
(b) Additional
Limitations. The issuance of
ADSs against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the deposit of particular Shares may be refused, or
the registration of transfer of ADSs in particular instances may be refused, or
the registration of transfers of ADSs generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of this Deposit Agreement or the representative
ADR(s), if applicable, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject, in all cases, to Section 7.8.
(c) Regulatory
Restrictions. Notwithstanding
any provision of this Deposit Agreement or any ADR(s) to the contrary, Holders
are entitled to surrender outstanding ADSs to withdraw the Deposited Securities
at any time subject only to (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders’ meeting or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the ADRs
or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
13
Section
2.9 Lost ADRs,
etc. In
case any ADR shall be mutilated, destroyed, lost, or stolen, the Depositary
shall execute and deliver a new ADR of like tenor at the expense of the Holder
(a) in the case of a
mutilated ADR, in exchange of and substitution for such mutilated ADR
upon cancellation thereof, or (b) in the case of a destroyed, lost or
stolen ADR, in lieu of and in substitution for such destroyed, lost, or
stolen ADR, after the Holder thereof (i) has submitted to the Depositary a
written request for such exchange and substitution before the Depositary has
notice that the ADR has been acquired by a bona fide purchaser, (ii) has
provided such security or indemnity (including an indemnity bond) as may be
required by the Depositary to save it and any of its agents harmless, and
(iii) has satisfied any other reasonable requirements imposed by the
Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such ADR, the authenticity
thereof and the Holder’s ownership thereof.
Section
2.10 Cancellation
and Destruction of Surrendered ADRs; Maintenance of Records. All
ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under
this Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled,
provided the Depositary maintains a record of all destroyed ADRs. Any
ADSs held in book-entry form (i.e., through accounts at
DTC) shall be deemed canceled when the Depositary causes the number of ADSs
evidenced by the Balance Certificate to be reduced by the number of ADSs
surrendered (without the need to physically destroy the Balance
Certificate). The Depositary agrees to maintain records of all ADRs
surrendered and the Shares withdrawn, substitute ADRs delivered and canceled or
destroyed ADRs to the extent required by the laws or regulations governing the
Depositary. Upon the reasonable request of the Company, the
Depositary shall, at the Company's expense, provide a copy of such records to
the Company.
Section
2.11 Partial
Entitlement ADSs. In
the event any Shares are deposited which (i) entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount different
from the Shares then on deposit or (ii) are not fully fungible (including,
without limitation, as to settlement or trading) with the Shares then on deposit
(the Shares then on deposit collectively, "Full Entitlement Shares" and the
Shares with different entitlement, "Partial Entitlement Shares"), the Depositary
shall (i) cause the Custodian to hold Partial Entitlement Shares separate
and distinct from Full Entitlement Shares, and (ii) subject to the terms of
this Deposit Agreement, issue ADSs representing Partial Entitlement Shares which
are separate and distinct from the ADSs representing Full Entitlement Shares, by
means of separate CUSIP numbering and legending (if necessary) and, if
applicable, by issuing ADRs evidencing such ADSs with applicable notations
thereon ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full
Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of
Partial Entitlement ADSs and give Holders of Partial Entitlement ADRs the
opportunity to exchange such Partial Entitlement ADRs for Full Entitlement ADRs,
(b) cause the Custodian to transfer the Partial Entitlement Shares into the
account of the Full Entitlement Shares, and (c) take such actions as are
necessary to remove the distinctions between (i) the Partial Entitlement
ADRs and ADSs, on the one hand, and (ii) the Full Entitlement ADRs and ADSs
on the other. Holders and Beneficial Owners of Partial Entitlement
ADSs shall only be entitled to the entitlements of Partial Entitlement
Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All
provisions and conditions of this Deposit Agreement shall apply to Partial
Entitlement ADRs and ADSs to the same extent as Full Entitlement ADRs and ADSs,
except as contemplated by this Section 2.11. The Depositary is
authorized to take any and all other actions as may be necessary (including,
without limitation, making the necessary notations on ADRs) to give effect to
the terms of this Section 2.11. The Company agrees to give
timely written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
14
Section 2.12Certificated/Uncertificated
ADSs. Notwithstanding
any other provision of this Deposit Agreement, the Depositary may, at any time
and from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated
ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s)
under this Deposit Agreement, the Depositary shall at all times be subject to
(i) the standards applicable to registrars and transfer agents maintaining
direct registration systems for equity securities in New York and issuing
uncertificated securities under New York law, and (ii) the terms of New
York law applicable to uncertificated equity
securities. Uncertificated ADSs shall not be represented by any
instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated
ADSs, that are not subject to any registered pledges, liens, restrictions or
adverse claims of which the Depositary has notice at such time, shall at all
times have the right to exchange the Uncertificated ADS(s) for Certificated
ADS(s) of the same type and class, subject in each case to applicable laws and
any rules and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the
Depositary maintains a direct registration system for the ADSs, have the right
to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii)
the presentation of a written request to that effect to the Depositary, subject
in each case to (a) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary then has
notice, (b) the terms of this Deposit Agreement and the rules and regulations
that the Depositary may establish for such purposes hereunder,
(c) applicable law, and (d) payment of the Depositary fees and
expenses applicable to such exchange of Certificated ADS(s) for Uncertificated
ADS(s). Uncertificated ADSs shall in all respects be identical to
Certificated ADS(s) of the same type and class, except that (i) no ADR(s)
shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of this Deposit
Agreement, be transferable upon the same terms and conditions as uncertificated
securities under New York law, (iii) the ownership of Uncertificated ADS(s)
shall be recorded on the books of the Depositary maintained for such purpose and
evidence of such ownership shall be reflected in periodic statements provided by
the Depositary to the Holder(s) in accordance with applicable New York law,
(iv) the Depositary may from time to time, upon notice to the Holders of
Uncertificated ADSs affected thereby, establish rules and regulations, and amend
or supplement existing rules and regulations, as may be deemed reasonably
necessary to maintain Uncertificated ADS(s) on behalf of Holders, provided that
(a) such rules and regulations do not conflict with the terms of this
Deposit Agreement and applicable law, and (b) the terms of such rules and
regulations are readily available to Holders upon request, (v) the
Uncertificated ADS(s) shall not be entitled to any benefits under this Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless such Uncertificated ADS(s) is/are registered on the books of
the Depositary maintained for such purpose, (vi) the Depositary may, in
connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and cancellation of
Uncertificated ADSs, require the prior receipt of such documentation as the
Depositary may deem reasonably appropriate, and (vii) upon termination of
this Deposit Agreement, the Depositary shall not require Holders of
Uncertificated ADSs to affirmatively instruct the Depositary before remitting
proceeds from the sale of the Deposited Securities represented by such Holders'
Uncertificated ADSs under the terms of Section 6.2 of this Deposit
Agreement. When issuing ADSs under the terms of this Deposit
Agreement, including, without limitation, issuances pursuant to Sections 2.5,
4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to
issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise
specifically instructed by the applicable Holder to issue Certificated
ADSs. All provisions and conditions of this Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated by this Section 2.12. The Depositary is authorized
and directed to take any and all actions and establish any and all procedures
deemed reasonably necessary to give effect to the terms of this Section
2.12. Any references in this Deposit Agreement or any ADR(s) to the
terms "American Depositary Share(s)" or "ADS(s)" shall, unless the context
otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.12 and except as
required by applicable law, the Uncertificated ADSs shall be treated as ADSs
issued and outstanding under the terms of this Deposit Agreement. In
the event that, in determining the rights and obligations of parties hereto with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of
this Deposit Agreement (other than this Section 2.12) and (b) the terms of this
Section 2.12, the terms and conditions set forth in this Section 2.12 shall be
controlling and shall govern the rights and obligations of the parties to this
Deposit Agreement pertaining to the Uncertificated ADSs.
15
Section 2.13Restricted
ADSs. The Depositary
shall, at the request and expense of the Company, establish procedures enabling
the deposit hereunder of Shares that are Restricted Securities in order to
enable the holder of such Shares to hold its ownership interests in such
Restricted Shares in the form of ADSs issued under the terms hereof (such
Shares, "Restricted Shares"). Upon receipt of a written request from
the Company to accept Restricted Shares for deposit hereunder, the Depositary
agrees to establish procedures permitting the deposit of such Restricted Shares
and the issuance of ADSs representing such deposited Restricted Shares (such
ADSs, the "Restricted ADSs," and the ADRs evidencing such Restricted ADSs, the
"Restricted ADRs"). The Company shall assist the Depositary in the
establishment of such procedures and agrees that it shall take all steps
necessary and satisfactory to the Depositary to insure that the establishment of
such procedures does not violate the provisions of the Securities Act or any
other applicable laws. The depositors of such Restricted Shares and
the holders of the Restricted ADSs may be required prior to the deposit of such
Restricted Shares, the transfer of the Restricted ADRs and the Restricted ADSs
evidenced thereby or the withdrawal of the Restricted Shares represented by
Restricted ADSs to provide such written certifications or agreements as the
Depositary or the Company may require. The Company shall provide to
the Depositary in writing the legend(s) to be affixed to the Restricted ADRs,
which legends shall (i) be in a form reasonably satisfactory to the Depositary
and (ii) contain the specific circumstances under which the Restricted ADRs and
the Restricted ADSs represented thereby may be transferred or the Restricted
Shares withdrawn. The Restricted ADSs issued upon the deposit of
Restricted Shares shall be separately identified on the books of the Depositary
and the Restricted Shares so deposited shall be held separate and distinct from
the other Deposited Securities held hereunder. The Restricted Shares
and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion
in any book-entry settlement system, including, without limitation, DTC, and
shall not in any way be fungible with the ADSs issued under the terms hereof
that are not Restricted ADSs. The Restricted ADRs and the Restricted
ADSs evidenced thereby shall be transferable only by the Holder thereof upon
delivery to the Depositary of (i) all documentation otherwise contemplated by
this Deposit Agreement and (ii) an opinion of counsel satisfactory to the
Depositary setting forth, inter alia, the conditions upon which the Restricted
ADR presented is, and the Restricted ADSs evidenced thereby are, transferable by
the Holder thereof under applicable securities laws and the transfer
restrictions contained in the legend set forth on the Restricted ADR presented
for transfer. Except as set forth in this Section 2.13 and except as
required by applicable law, the Restricted ADRs and the Restricted ADSs
evidenced thereby shall be treated as ADRs and ADSs issued and outstanding under
the terms of this Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Restricted ADSs, any conflict arises between (a) the terms of this Deposit
Agreement (other than this Section 2.13) and (b) the terms of (i) this Section
2.13 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.13 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to this Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
16
If the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are no longer
Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel
satisfactory to the Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations
between the applicable Restricted Shares held on deposit under this Section 2.13
and the other Shares held on deposit under the terms of this Deposit Agreement
that are not Restricted Shares, (ii) treat the newly unrestricted ADRs and
ADSs on the same terms as, and fully fungible with, the other ADRs and ADSs
issued and outstanding under the terms of this Deposit Agreement that are not
Restricted ADRs or Restricted ADSs, (iii) take all actions necessary to
remove any distinctions, limitations and restrictions previously existing under
this Section 2.13 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
17
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF ADSs
Section
3.1 Proofs,
Certificates and Other Information. Any
person presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
this Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under this Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by the terms of
Section 7.8, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary’s, the Registrar’s and the Company’s
satisfaction. The Depositary shall provide the Company, in a timely
manner, with copies or originals if necessary and appropriate of (i) any such
proofs of citizenship or residence, taxpayer status, or exchange control
approval which it receives from Holders and Beneficial Owners, and (ii) any
other information or documents which the Company may reasonably request and
which the Depositary shall request and receive from any Holder or Beneficial
Owner or any person presenting Shares for deposit or ADSs for cancellation,
transfer or withdrawal. Nothing herein shall obligate the Depositary
to (i) obtain any information for the Company if not provided by the Holders or
Beneficial Owners, or (ii) verify or vouch for the accuracy of the information
so provided by the Holders or Beneficial Owners.
Section
3.2 Liability for
Taxes and Other Charges. Any
tax or other governmental charge payable by the Custodian or by the Depositary
with respect to any ADR or any Deposited Securities or ADSs shall be payable by
the Holders and Beneficial Owners to the Depositary. The
Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer of ADSs, register the
split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
18
Section
3.3 Representations and
Warranties on Deposit of Shares. Each
person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.13), and (vi) the Shares presented for deposit
have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
Section
3.4 Compliance
with Information Requests. Notwithstanding
any other provision of this Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the NASDAQ, and any other stock
exchange on which the Shares or ADSs are, or will be, registered, traded or
listed or the Articles of Incorporation of the Company, which
are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company’s expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
19
Section
3.5 Ownership
Restrictions. Notwithstanding
any other provision in this Deposit Agreement or any ADR, the Company may
restrict transfers of the Shares where such transfer might result in ownership
of Shares exceeding limits imposed by applicable law or the Articles of
Incorporation of
the Company. The Company may also restrict, in such manner as it
deems appropriate, transfers of the ADSs where such transfer may result in the
total number of Shares represented by the ADSs owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its
sole discretion but subject to applicable law, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of
Incorporation of the Company.
ARTICLE
IV
THE
DEPOSITED SECURITIES
Section
4.1 Cash
Distributions. Whenever
the Depositary receives confirmation from the Custodian of the receipt of any
cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Deposited Securities or any other
entitlements held in respect of Deposited Securities under the terms hereof, the
Depositary will (i) if at the time of receipt thereof any amounts received
in a Foreign Currency can in the judgment of the Depositary (pursuant to Section
4.8) be converted on a practicable basis into Dollars transferable to the United
States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.8),
(ii) if applicable, establish the ADS Record Date upon the terms described
in Section 4.9, and (iii) distribute promptly the amount thus received (net
of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as
can be distributed without attributing to any Holder a fraction of one cent, and
any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any
cash dividend or other cash distribution in respect of any Deposited Securities
an amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities shall
be reduced accordingly. Such withheld amounts shall be forwarded by
the Company, the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section
4.2 Distribution
in Shares. If
any distribution upon any Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary shall
establish the ADS Record Date upon the terms described in Section 4.9 and either
(i) the Depositary shall, subject to Section 5.9, distribute to the Holders as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional ADSs are not so distributed, each ADS issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional integral
number of Shares distributed upon the Deposited Securities represented thereby
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares or ADSs, as the case may be,
represented by the aggregate of such fractions and distribute the net proceeds
upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation
under Section 5.7, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of (a) taxes and (b) fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1. The Depositary shall hold and/or distribute
any unsold balance of such property in accordance with the provisions of this
Deposit Agreement.
20
Section
4.3 Elective
Distributions in Cash or Shares. Subject
to applicable Korean Law, whenever the Company intends to make a distribution
payable at the election of the holders of Shares in cash or in additional
Shares, the Company shall give notice thereof to the Depositary at least
forty-five (45) days prior to the proposed distribution stating whether or not
it wishes such elective distribution to be made available to Holders of
ADSs. Upon timely receipt of notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of
ADSs. The Depositary shall make such elective distribution available
to Holders only if (i) the Company shall have timely requested that the elective
distribution be made available to Holders, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7. If the above conditions are not satisfied, the
Depositary shall, to the extent permitted by law, distribute to the Holders, on
the basis of the same determination as is made in Korea in respect of the Shares
for which no election is made, either (X) cash upon the terms described in
Section 4.1 or (Y) additional ADSs representing such additional Shares upon the
terms described in Section 4.2. If the above conditions are
satisfied, the Depositary shall establish an ADS Record Date (on the terms
described in Section 4.9) and establish procedures to enable Holders to elect
the receipt of the proposed distribution in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. If a Holder elects to receive the
proposed distribution (X) in cash, the distribution shall be made upon the terms
described in Section 4.1, or (Y) in ADSs, the distribution shall be made
upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the
elective distribution in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
21
Section
4.4 Distribution
of Rights to Purchase Additional ADSs.
(a) Distribution
to ADS Holders. Whenever the
Company intends to distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares, the Company shall give notice thereof to the
Depositary at least forty-five (45) days prior to the proposed distribution
stating whether or not it wishes such rights to be made available to Holders of
ADSs. Upon timely receipt of a notice indicating that the Company
wishes such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7,
and (iii) the Depositary shall have determined that such distribution of rights
is reasonably practicable. In the event any of the conditions set
forth above are not satisfied or if the Company requests that the rights not be
made available to Holders of ADSs, the Depositary shall proceed with the sale of
the rights as contemplated in Section 4.4(b) below. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.9) and establish procedures
to (x) distribute rights to purchase additional ADSs (by means of warrants
or otherwise), (y) to enable the Holders to exercise such rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver
ADSs upon the valid exercise of such rights. The Company shall assist
the Depositary to the extent necessary in establishing such
procedures. Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs).
(b) Sale of
Rights. If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5.7 or determines it is not reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Company shall assist the Depositary
to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1.
22
(c) Lapse of
Rights. If the Depositary
is unable to make any rights available to Holders upon the terms described in
Section 4.4(a) or to arrange for the sale of the rights upon the terms described
in Section 4.4(b), the Depositary shall allow such rights to lapse.
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or the securities to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (or
other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes the Depositary opinion(s) of counsel for the Company in
the United States and counsel to the Company in any other applicable country in
which rights would be distributed, in each case satisfactory to the Depositary,
to the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable
laws. Because Korean law presently does not contemplate the issuance
of rights in negotiable form and the possibility of such issuance is unlikely, a
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall
be reduced accordingly. In the event that the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or
charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Section
4.5 Distributions
Other Than Cash, Shares or Rights to Purchase Shares.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders of ADSs, the Depositary shall consult with
the Company, and the Company shall assist the Depositary, to determine whether
such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
23
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section
4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
Section
4.6 Distributions
with Respect to Deposited Securities in Bearer Form. Subject
to the terms of this Article IV, distributions in respect of Deposited
Securities that are held by the Depositary in bearer form shall be made to the
Depositary for the account of the respective Holders of ADS(s) with respect to
which any such distribution is made upon due presentation by the Depositary or
the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of
such distributions. The Depositary or the Custodian shall promptly
present such coupons, talons or certificates, as the case may be, in connection
with any such distribution.
Section
4.7 Redemption. If
the Company intends to exercise any right of redemption in respect of any of the
Deposited Securities, the Company shall give notice thereof to the Depositary at
least sixty (60) days prior to the intended date of redemption which notice
shall set forth the particulars of the proposed redemption. Upon
timely receipt of (i) such notice and (ii) satisfactory documentation given
by the Company to the Depositary within the terms of Section 5.7, and only if
the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company’s notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company the Deposited
Securities in respect of which redemption rights are being exercised against
payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof and the terms set forth in Sections 4.1 and 6.2. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 and the
applicable fees and charges of, and expenses incurred by, the Depositary, and
taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
24
Section
4.8 Conversion of
Foreign Currency. Whenever
the Depositary or the Custodian shall receive Foreign Currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, which in the judgment of the Depositary can at
such time be converted on a practicable basis, by sale or in any other manner
that it may determine in accordance with applicable law, into Dollars
transferable to the United States and distributable to the Holders entitled
thereto, the Depositary shall convert or cause to be converted, by sale or in
any other manner that it may determine, such Foreign Currency into Dollars, and
shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of this Deposit Agreement. If the Depositary shall have
distributed warrants or other instruments that entitle the holders thereof to
such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in
either case without liability for interest thereon. Such distribution
may be made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of any application of exchange
restrictions or otherwise.
If such
conversion or distribution generally or with regard to a particular Holder can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event,
however, shall the Depositary be obligated to make such a filing.
If at any
time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practicable or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the
Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) to Holders for whom this is lawful and practicable or
(iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders
entitled to receive the same.
25
Section
4.9 Fixing of ADS
Record Date. Whenever
the Depositary shall receive notice of the fixing of a record date by the
Company for the determination of holders of Deposited Securities entitled to
receive any distribution (whether in cash, Shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each ADS, or whenever the Depositary
shall receive notice of any meeting of, or solicitation of consents or proxies
of, holders of Shares or other Deposited Securities, or whenever the Depositary
shall find it necessary or convenient in connection with the giving of any
notice, solicitation of any consent or any other matter, the Depositary shall
fix a record date (the "ADS Record Date") for
the determination of the Holders of ADS(s) who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each
ADS. The Depositary shall make reasonable efforts to establish the
ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in Korea. Subject to
applicable law and the provisions of Section 4.1 through 4.8 and to the other
terms and conditions of this Deposit Agreement, only the Holders of ADSs at the
close of business in New York on such ADS Record Date shall be entitled to
receive such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
Section
4.10 Voting of
Deposited Securities. As
soon as practicable after receipt of notice of any meeting at which the holders
of Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested by
the Company in writing in a timely manner (the Depositary having no obligation
to take any further action if the request shall not have been received by the
Depositary at least thirty (30) days prior to the date of such vote or meeting)
and as soon as practicable after receipt thereof, at the Company’s expense and
provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b)
a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the provisions of this Deposit
Agreement, the Articles of Incorporation of the Company and the provisions of or
governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder’s ADSs, and (c) a brief statement as to
the manner in which such voting instructions may be given. Voting instructions
may be given only in respect of a number of ADSs representing an integral number
of Deposited Securities. Upon the timely receipt from a Holder of
ADSs as of the ADS Record Date of voting instructions in the manner specified by
the Depositary, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law, the provisions of this Deposit Agreement,
Articles of Incorporation of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
(in person or by proxy) represented by such Holder’s ADSs in accordance with
such voting instructions.
26
Neither
the Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the Custodian shall vote,
attempt to exercise the right to vote, or in any way make use of for purposes of
establishing a quorum or otherwise, the Deposited Securities represented by
ADSs, except pursuant to and in accordance with the voting instructions timely
received from Holders or as otherwise contemplated herein. If the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder’s ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting
instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted. Notwithstanding anything else contained herein, the
Depositary shall, if so requested in writing by the Company, represent all
Deposited Securities (whether or not voting instructions have been received in
respect of such Deposited Securities from Holders as of the ADS Record Date) for
the sole purpose of establishing quorum at a meeting of
shareholders.
Notwithstanding
anything else contained in this Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited Securities and to
deliver to the Depositary an opinion of U.S. counsel addressing any actions
requested to be taken if so requested by the Depositary.
There can
be no assurance that Holders generally or any Holder in particular will receive
the notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
Section
4.11Changes Affecting
Deposited Securities. Upon
any change in nominal or par value, split-up, cancellation, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the ADRs shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional or replacement securities, as applicable. The
Depositary may, with the Company’s approval, and shall, if the Company shall so
request, subject to the terms of this Deposit Agreement and receipt of an
opinion of counsel to the Company satisfactory to the Depositary that such
distributions are not in violation of any applicable laws or regulations,
execute and deliver additional ADRs as in the case of a stock dividend on the
Shares, or call for the surrender of outstanding ADRs to be exchanged for new
ADRs, in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of ADR contained in Exhibit A hereto,
specifically describing such new Deposited Securities or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company’s approval, and shall, if
the Company requests, subject to receipt of an opinion of Company’s counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such securities available to Holders in general or
to any Holder in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or (iii) any liability to the purchaser of such
securities.
27
Section
4.12 Available
Information. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These
reports and documents can be retrieved from the Commission's website (xxx.xxx.xxx) and can
be inspected and copied at the public reference facilities maintained by the
Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx
X.X. 00000.
Section
4.13 Reports. The
Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall also provide to
Holders copies of such reports when furnished by the Company pursuant to Section
5.6.
Section
4.14 List of
Holders. Promptly
upon written request by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of ADSs of all
Holders.
Section 4.15Taxation. The
Depositary will, and will instruct the Custodian to, forward to the Company or
its agents such information from its records as the Company may reasonably
request to enable the Company or its agents to file the necessary tax reports
with governmental authorities or agencies. The Depositary, the
Custodian or the Company and its agents may file such reports as are necessary
to reduce or eliminate applicable taxes on dividends and on other distributions
in respect of Deposited Securities under applicable tax treaties or laws for the
Holders and Beneficial Owners. In accordance with instructions from
the Company and to the extent practicable, the Depositary or the Custodian will
take reasonable administrative actions to obtain tax refunds, reduced
withholding of tax at source on dividends and other benefits under applicable
tax treaties or laws with respect to dividends and other distributions on the
Deposited Securities. As a condition to receiving such benefits,
Holders and Beneficial Owners of ADSs may be required from time to time, and in
a timely manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary’s or the Custodian’s obligations under applicable
law. The Depositary and the Company shall have no obligation or
liability to any person if any Holder or Beneficial Owner fails to provide such
information or if such information does not reach the relevant tax authorities
in time for any Holder or Beneficial Owner to obtain the benefit of any tax
treaty. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
28
If the
Company (or any of its agents) withholds from any distribution any amount on
account of taxes or governmental charges, or pays any other tax in respect of
such distribution (i.e., stamp duty tax, capital
gains or other similar tax), the Company shall (and shall cause such agent to)
remit promptly to the Depositary information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other proof
of payment to the applicable governmental authority) therefor, in each
case, in a form satisfactory to the Depositary. The
Depositary shall, to the extent required by U.S. law, report to Holders any
taxes withheld by it or the Custodian, and, if such information is provided to
it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary or the Custodian, as
applicable. Neither the Depositary nor the Custodian shall be liable
for the failure by any Holder or Beneficial Owner to obtain the benefits of
credits on the basis of non-U.S. tax paid against such Holder’s or Beneficial
Owner’s income tax liability.
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Passive Foreign Investment
Company" (as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section
5.1 Maintenance
of Office and Transfer Books by the Registrar. Until
termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the issuance and delivery of ADSs, the acceptance for
surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of this Deposit Agreement.
29
The
Registrar shall keep books for the registration of issuances and transfers of
ADSs which at all reasonable times shall be open for inspection by the Company
and by the Holders of such ADSs, provided that such inspection shall not be, to
the Registrar’s knowledge, for the purpose of communicating with Holders of such
ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to this Deposit Agreement or the
ADSs.
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to Section
7.8.
If any
ADSs are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registration of issuances, cancellations,
transfers, combinations and split-ups of ADSs and, if applicable, to countersign
ADRs evidencing the ADSs so issued, transferred, combined or split-up, in accordance with any
requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary after consultation with the Company or upon reasonable request of the
Company.
Section
5.2 Exoneration. Neither
the Depositary nor the Company shall be obligated to do or perform any act which
is inconsistent with the provisions of this Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States, Korea or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future, of the Articles of Incorporation of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Incorporation of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of this Deposit
Agreement.
30
The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
No
disclaimer of liability under the Securities Act is intended by any provision of
this Deposit Agreement.
Section
5.3 Standard of
Care. The
Company and the Depositary assume no obligation and shall not be subject to any
liability under this Deposit Agreement or any ADRs to any Holder(s) or
Beneficial Owner(s), except that the Company and the Depositary agree to perform
their respective obligations specifically set forth in this Deposit Agreement or
the applicable ADRs without negligence or bad faith.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the ADSs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of this Deposit
Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section
5.4 Resignation
and Removal of the Depositary; Appointment of Successor
Depositary. The
Depositary may at any time resign as Depositary hereunder by written notice of
resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 90th day after delivery thereof to the Company (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2),
or (ii) the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
31
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall be required by
the Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment
of all sums due it and on the written request of the Company shall, (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in Sections 5.8 and
5.9), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
Section
5.5 The
Custodian. The
Depositary has initially appointed Korea Securities Depository as Custodian for
the purpose of this Deposit Agreement. The Custodian or its
successors in acting hereunder shall be subject at all times and in all respects
to the direction of the Depositary for the Shares for which the Custodian acts
as custodian and shall be responsible solely to it. If any Custodian
resigns or is discharged from its duties hereunder with respect to any Deposited
Securities and no other Custodian has previously been appointed hereunder, the
Depositary shall promptly appoint a substitute custodian that is organized under
the laws of Korea. The Depositary shall require such resigning or
discharged Custodian to deliver the Deposited Securities held by it, together
with all such records maintained by it as Custodian with respect to such
Deposited Securities as the Depositary may request, to the Custodian designated
by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional
custodian with respect to any Deposited Securities, or discharge the Custodian
with respect to any Deposited Securities and appoint a substitute custodian,
which shall thereafter be Custodian hereunder with respect to the Deposited
Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing, and
shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
32
Section
5.6 Notices and
Reports. On
or before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities, or
of any adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of
any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in the English language but otherwise in
the form given or to be given to holders of Shares or other Deposited
Securities. The Company shall also furnish to the Custodian and the Depositary a
summary, in English, of any applicable provisions or proposed provisions of the
Articles of Incorporation of the Company that may be relevant or pertain to such
notice of meeting or be the subject of a vote thereat.
The
Company will also transmit to the Depositary (a) an English language version of
the other notices, reports and communications which are made generally available
by the Company to holders of its Shares or other Deposited Securities and (b)
the English-language versions of the Company’s annual and semi-annual (if any)
reports prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the
Company and at the Company’s expense, to provide copies thereof to all Holders
or make such notices, reports and other communications available to all Holders
on a basis similar to that for holders of Shares or other Deposited Securities
or on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange
requirement. The Company has delivered to the Depositary and the
Custodian a copy of the Company’s Articles of Incorporation along with the
provisions of or governing the Shares and any other Deposited Securities issued
by the Company in connection with such Shares, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein. The
Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications issued by the Company and delivered to
the Depositary for inspection by the Holders of the ADSs at the Depositary’s
Principal Office, at the office of the Custodian and at any other designated
transfer office.
Section
5.7 Issuance of
Additional Shares, ADSs etc. The
Company agrees that in the event it or any of its Affiliates proposes (i) an
issuance, sale or distribution of additional Shares, (ii) an offering of rights
to subscribe for Shares or other Deposited Securities, (iii) an issuance of
securities convertible into or exchangeable for Shares, (iv) an issuance of
rights to subscribe for securities convertible into or exchangeable for Shares,
(v) an elective dividend of cash or Shares, (vi) a redemption of Deposited
Securities, (vii) a meeting of holders of Deposited Securities, or solicitation
of consents or proxies, relating to any reclassification of securities, merger
or consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the proposed transaction does not violate the
registration provisions of the Securities Act, or any other applicable laws
(including, without limitation, the Investment Company Act of 1940, as amended,
the Exchange Act and the securities laws of the states of the
U.S.). In support of the foregoing, the Company will, at the request
of the Depositary, furnish to the Depositary (a) a written opinion of U.S.
counsel (reasonably satisfactory to the Depositary) stating whether such
transaction (1) requires a registration statement under the Securities Act
to be in effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of Korean counsel stating that (1) making the
transaction available to Holders and Beneficial Owners does not violate the laws
or regulations of Korea and (2) all requisite regulatory consents and approvals
have been obtained in Korea. If the filing of a registration
statement is required, the Depositary shall not have any obligation to proceed
with the transaction unless it shall have received evidence reasonably
satisfactory to it that such registration statement has been declared
effective. If, being advised by counsel, the Company determines that
a transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The
Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act and, if applicable, the Exchange Act or have been registered under the
Securities Act and, if applicable, the Exchange Act (and such registration
statement has been declared effective).
33
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
Section
5.8 Indemnification. The
Depositary agrees to indemnify the Company and its directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any direct loss, liability, tax, charge or expense of any kind whatsoever
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary under the
terms hereof due to the negligence or bad faith of the Depositary.
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case (i) by the Depositary, the Custodian or
any of their respective directors, officers, employees, agents and Affiliates,
except to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates. The Company
shall not indemnify the Depositary or the Custodian against any liability or
expense arising out of information relating to the Depositary or such Custodian,
as the case may be, furnished in a signed writing to the Company, executed by
the Depositary or such Custodian expressly for use in any registration
statement, prospectus or preliminary prospectus relating to any Deposited
Securities represented by the ADSs.
34
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
Any
person seeking indemnification hereunder (an "indemnified person") shall notify
the person from whom it is seeking indemnification (the "indemnifying person")
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person’s rights to
seek indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder without
the consent of the indemnifying person, which consent shall not be unreasonably
withheld.
Section
5.9 Fees and
Charges of Depositary. The
Company, the Holders, the Beneficial Owners, and persons depositing Shares or
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be required to pay to the Depositary the Depositary’s fees and related charges
identified as payable by them respectively in the Fee Schedule attached hereto
as Exhibit
B. All fees and charges so payable may, at any time and from
time to time, be changed by agreement between the Depositary and the Company,
but, in the case of fees and charges payable by Holders and Beneficial Owners,
only in the manner contemplated in Section 6.1. The Depositary shall
provide, without charge, a copy of its latest fee schedule to anyone upon
request.
The
Company agrees to promptly pay to the Depositary such other fees and charges,
except for such fees and related charges identified as payable by Holders and
Beneficial Owners as set out in the Fee Schedule attached hereto as Exhibit B,
and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its statement
for such expenses and fees or charges to the Company once every three
months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
35
Section
5.10 Pre-Release
Transactions. Subject
to the further terms and provisions of this Section 5.10, the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a "Pre-Release
Transaction"). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the "Applicant") to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case-by-case basis
as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant).
Section
5.11 Restricted
Securities Owners. The
Company agrees to advise in writing each of the persons or entities who, to the
knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder (except under the circumstances
contemplated in Section 2.13) and, to the extent
practicable, shall require each of such persons to represent in writing that
such person will not deposit Restricted Securities hereunder (except under the
circumstances contemplated in Section 2.13).
ARTICLE
VI
AMENDMENT
AND TERMINATION
Section
6.1 Amendment/Supplement. Subject
to the terms and conditions of this Section 6.1 and applicable law, the ADRs
outstanding at any time, the provisions of this Deposit Agreement and the form
of ADR attached hereto and to be issued under the terms hereof may at any time
and from time to time be amended or supplemented by written agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable without the prior written consent of the Holders or Beneficial
Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such ADSs, to consent and agree
to such amendment or supplement and to be bound by this Deposit Agreement and
the ADR, if applicable, as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADS and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, this Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement this Deposit Agreement and
any ADRs at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to this Deposit Agreement
and any ADRs in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
36
Section
6.2 Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by providing notice of such termination to the Holders of
all ADSs then outstanding at least thirty (30) days prior to the date fixed in
such notice for such termination. If ninety (90) days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and in either
case a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4, the Depositary may terminate this
Deposit Agreement by providing notice of such termination to the Holders of all
ADSs then outstanding at least thirty (30) days prior to the date fixed for such
termination. On and after the date of termination of this Deposit
Agreement, the Holder of ADS(s) will, upon surrender of such ADS(s) at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of ADSs referred to in Section 2.7 and subject to
the conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to Delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
ADS. If any ADSs shall remain outstanding after the date of
termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of ADSs, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in Section 2.7, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for ADSs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders whose ADSs have not theretofore been
surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement with respect to the
ADSs and the Deposited Securities, except to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of ADSs, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8, 5.9 and
7.6.
37
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Counterparts. The
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts together shall
constitute one and the same agreement. Copies of this Deposit
Agreement shall be maintained with the Depositary and shall be open to
inspection by any Holder during business hours.
Section
7.2 No
Third-Party Beneficiaries. The
Deposit Agreement is for the exclusive benefit of the parties hereto (and their
successors) and shall not be deemed to give any legal or equitable right, remedy
or claim whatsoever to any other person, except to the extent specifically set
forth in this Deposit Agreement. Nothing in this Deposit Agreement
shall be deemed to give rise to a partnership or joint venture among the parties
nor establish a fiduciary or similar relationship among the
parties. The parties hereto acknowledge and agree that (i) the
Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or
relationships.
38
Section
7.3 Severability. In
case any one or more of the provisions contained in this Deposit Agreement or in
the ADRs should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section
7.4 Holders and
Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any ADR by acceptance thereof or any beneficial interest
therein.
Section
7.5 Notices. Any
and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail
or air courier, addressed to 0xx
Xxxxx, XXX Xxxxx, 000-00, Xxxxxxx-Xxxx, Xxxxxxx-Xx, Xxxxx 135-912, Korea,
Attention: Xxxx Xxx (Facsimile Number: 822-3016-5450) or to any other
address which the Company may specify in writing to the Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail
or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, U.S.A., Attention: Depositary
Receipts Department (Facsimile Number: 212-816-6865), or to any other address
which the Depositary may specify in writing to the Company.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
(a) personally
delivered or sent by mail or cable, telex or facsimile transmission, confirmed
by letter, addressed to such Holder at the address of such Holder as it appears
on the books of the Depositary or, if such Holder shall have filed with the
Depositary a request that notices intended for such Holder be mailed to some
other address, at the address specified in such request, or (b) if a Holder shall
have designated such means of notification as an acceptable means of
notification under the terms of this Deposit Agreement, by means of electronic
messaging addressed for delivery to the e-mail address designated by the Holder
for such purpose. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement. Failure
to notify a Holder or any defect in the notification to a Holder shall not
affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery
of a notice sent by mail, air courier or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box or delivered to an air courier service, without regard for the actual
receipt or time of actual receipt thereof by a Holder. The Depositary
or the Company may, however, act upon any cable, telex or facsimile transmission
received by it from any Holder, the Custodian, the Depositary, or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
39
Delivery
of a notice by means of electronic messaging shall be deemed to be effective at
the time of the initiation of the transmission by the sender (as shown on the
sender’s records), notwithstanding that the intended recipient retrieves the
message at a later date, fails to retrieve such message, or fails to receive
such notice on account of its failure to maintain the designated e-mail address,
its failure to designate a substitute e-mail address or for any other
reason.
Section
7.6 Governing Law
and Jurisdiction. The
Deposit Agreement and the ADRs shall be interpreted in accordance with, and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, the laws of the State of New York without reference to the
principles of choice of law thereof. Notwithstanding anything
contained in this Deposit Agreement, any ADR or any present or future provisions
of the laws of the State of New York, the rights of holders of Shares and of any
other Deposited Securities and the obligations and duties of the Company in
respect of the holders of Shares and other Deposited Securities, as such, shall
be governed by the laws of Korea (or, if applicable, such other laws as may
govern the Deposited Securities).
Except as
set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with this
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the "Agent") now at 000
0xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent to receive
for and on its behalf service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If
for any reason the Agent shall cease to be available to act as such, the Company
agrees to designate a new agent in New York on the terms and for the purposes of
this Section 7.6 reasonably satisfactory to the Depositary. The Company further
hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to be
ineffective or such Agent shall fail to accept or acknowledge such service),
with a copy mailed to the Company by registered or certified air mail, postage
prepaid, to its address provided in Section 7.5. The Company agrees
that the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary, in
any such case, in any state or federal court of the United States, and the
Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or
proceeding, then the Company and the Depositary may pursue such claim against
each other in the state or federal court in the United States in which such
suit, action, or proceeding is pending and, for such purposes, the Company and
the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in
the manner set forth in the preceding paragraph shall be effective service upon
it for any suit, action or proceeding brought against it as described in this
paragraph.
40
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, and agrees not to plead or claim, any right of immunity from legal
action, suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution or judgment, from execution of
judgment, or from any other legal process or proceeding for the giving of any
relief or for the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any jurisdiction, in each
case with respect to any matter arising out of, or in connection with, this
Deposit Agreement, any ADR or the Deposited Securities.
No
disclaimer of liability under the Securities Act is intended by any provision of
this Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in
part.
Section
7.7 Assignment. Subject
to the provisions of Section 5.4, this Deposit Agreement may not be assigned by
either the Company or the Depositary.
Section
7.8 Compliance
with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section
7.9 Korean Law
References. Any
summary of Korean laws and regulations and of the terms of the Company’s
Articles of Incorporation set forth in this Deposit Agreement have been provided
by the Company solely for the convenience of Holders, Beneficial Owners and the
Depositary. While such summaries are believed by the Company to be
accurate as of the date of this Deposit Agreement, (i) they are summaries
and as such may not include all aspects of the materials summarized applicable
to a Holder or Beneficial Owner, and (ii) these laws and regulations and the
Company’s Articles of Incorporation may change after the
date of this Deposit Agreement. Neither the Depositary nor the
Company has any obligation under the terms of this Deposit Agreement to update
any such summaries.
41
Section
7.10 Titles and
References.
(a) Deposit
Agreement. All references in
this Deposit Agreement to exhibits, articles, sections, subsections, and other
subdivisions refer to the exhibits, articles, sections, subsections and other
subdivisions of this Deposit Agreement unless expressly provided
otherwise. The words "this Deposit Agreement", "herein", "hereof",
"hereby", "hereunder", and words of similar import refer to this Deposit
Agreement as a whole as in effect at the relevant time between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit
Agreement. References to "applicable laws and regulations" shall
refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities
as in effect at the relevant time of determination, unless otherwise required by
law or regulation.
(b) ADRs. All references in
any ADR(s) to paragraphs, exhibits, articles, sections, subsections, and other
subdivisions refer to the paragraphs, exhibits, articles, sections, subsections
and other subdivisions of the ADR(s) in question unless expressly provided
otherwise. The words "the Receipt", "the ADR", "herein", "hereof",
"hereby", "hereunder", and words of similar import used in any ADR refer to the
ADR as a whole and as in effect at the relevant time, and not to any particular
subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender in any ADR shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to paragraphs of any ADR are
included for convenience only and shall be disregarded in construing the
language contained in the ADR. References to "applicable laws and
regulations" shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
42
IN
WITNESS WHEREOF, GMARKET INC. and CITIBANK, N.A. have duly executed this Deposit
Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of ADSs
issued in accordance with the terms hereof, or upon acquisition of any
beneficial interest therein.
|
GMARKET
INC.
|
||||
|
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By:
|
/s/ Young Bae Ku | ||
| Name: | Young Bae Ku | |||
| Title: | Chief Executive Officer | |||
|
CITIBANK,
N.A.
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||||
|
|
By:
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/s/ Xxxx Xxxxxx | ||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
43
EXHIBIT
A
FORM
OF ADR
|
Number
|
CUSIP NUMBER: _______ |
| ________________ | |
|
American
Depositary Shares (each
American
Depositary Share
representing
one (1) fully paid
common
share, par value Won 100
per
share, of GMARKET Inc.
|
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
COMMON SHARES
of
GMARKET
INC.
(Incorporated
under the laws of the Republic of Korea)
CITIBANK,
N.A., a national banking association organized and existing under the laws of
the United States of America, as depositary (the "Depositary"), hereby certifies
that _____________is the owner of ______________ American Depositary Shares
(hereinafter "ADS"), representing deposited common shares, par value of Won 100
per share ,
including evidence of rights to receive such common shares (the "Shares"),
of GMARKET Inc., a corporation incorporated under the laws of the
Republic of Korea (the "Company"). As of the date of the Deposit
Agreement (as hereinafter defined), each ADS represents one (1) Share deposited
under the Deposit Agreement with the Custodian, which at the date of execution
of the Deposit Agreement is Korea Securities Depository (the
"Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment as
provided in Articles IV and VI of the Deposit Agreement. The
Depositary’s Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X.
A-1
(1) The
Deposit Agreement. This American
Depositary Receipt is one of an issue of American Depositary Receipts ("ADRs"),
all issued and to be issued upon the terms and conditions set forth in the
Deposit Agreement, dated as of July 5, 2006 (as amended and supplemented from
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs. The
Deposit Agreement sets forth the rights and obligations of Holders and
Beneficial Owners of ADSs and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file
at the Principal Office of the Depositary and with the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of
any ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The
statements made on the face and reverse of this ADR are summaries of certain
provisions of the Deposit Agreement and the Articles of Incorporation of the
Company (as in effect on the date of the signing of the Deposit Agreement) and
are qualified by and subject to the detailed provisions of the Deposit Agreement
and the Articles of Incorporation, to which reference is
hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to
the validity or worth of the Deposited Securities. The Depositary has
made arrangements for the acceptance of the ADSs into DTC. Each
Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC and
the DTC Participants to exercise and be entitled to any rights attributable to
such ADSs.
(2) Withdrawal of Deposited
Securities. The
Holder of this ADR (and of the ADSs evidenced hereby) shall be entitled to
Delivery (at the Custodian’s designated office) of the Deposited Securities at
the time represented by the ADSs evidenced hereby upon satisfaction of each of
the following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered ADSs to the Depositary at its Principal Office the
ADSs evidenced hereby (and, if applicable, this ADR evidencing such ADSs) for
the purpose of withdrawal of the Deposited Securities represented thereby, (ii)
if applicable and so required by the Depositary, this ADR delivered to the
Depositary for such purpose has been properly endorsed in blank or is
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and delivered
to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR evidencing the surrendered
ADSs, of the Deposit Agreement, of the Company’s Articles of Incorporation and
of any applicable laws and the rules of the CSD, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
A-2
Upon
satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the ADRs evidencing the
ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver (without unreasonable
delay) at the Custodian’s designated office the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of title
for the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, of this ADR
evidencing the ADSs so cancelled, of the Articles of Incorporation of the
Company, of any applicable laws and of the rules of the CSD, and to the terms
and conditions of or governing the Deposited Securities, in each case
as in effect at the time thereof.
The
Depositary shall not accept for surrender ADSs representing less than one
Share. In the case of Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the
ADSs. Notwithstanding anything else contained in this ADR or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or
(ii) any proceeds from the sale of any distributions of shares or rights,
which are at the time held by the Depositary in respect of the Deposited
Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer,
Combination and Split-Up of ADRs. The Registrar
shall promptly register the transfer of this ADR (and of the ADSs represented
hereby) on the books maintained for such purpose and the Depositary shall
(x) cancel this ADR and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by this ADR when canceled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of
the following conditions has been satisfied: (i) this ADR has
been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) this surrendered ADR has been properly endorsed or
is accompanied by proper instruments of transfer (including signature guarantees
in accordance with standard securities industry practice), (iii) this
surrendered ADR has been duly stamped (if required by the laws of the State of
New York or of the United States), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
A-3
The
Registrar shall promptly register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of
ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced
by this ADR (when canceled), (y) cause the Registrar to countersign such
new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been
satisfied: (i) this ADR has been duly Delivered by the Holder
(or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination hereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and government charges (as are set forth in
Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
(4) Pre-Conditions
to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B of the
Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matters
contemplated by Section 3.1 in the Deposit Agreement, and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary or the Company may establish consistent
with the provisions of this ADR, if applicable, and the Deposit Agreement and
applicable law.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the deposit of particular Shares may be
refused, or the registration of transfer of ADSs in particular instances may be
refused, or the registration of transfer of ADSs generally may be suspended,
during any period when the transfer books of the Company, the Depositary, a
Registrar or the Share Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which the Shares
or ADSs are listed, or under any provision of the Deposit Agreement or this ADR,
if applicable, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24). Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
any time subject only to (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders’ meeting or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, (iii) compliance with any
U.S. or foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to
time).
A-4
(5) Compliance
With Information Requests. Notwithstanding
any other provision of the Deposit Agreement or this ADR, each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of NASDAQ, and of any other stock
exchange on which Shares or ADSs are, or will be, registered, traded or listed,
or the Articles of Incorporation of the Company, which are made to provide
information, inter
alia, as to the capacity in which such Holder or Beneficial Owner owns
ADSs (and Shares, as the case may be) and regarding the identity of any other
person(s) interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request.
(6) Ownership
Restrictions. Notwithstanding
any provision of this ADR or of the Deposit Agreement, the Company may restrict
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Articles of Incorporation of the
Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of ADSs where such transfer may result in the total
number of Shares represented by the ADSs owned by a single Holder or Beneficial
Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of
Incorporation of the Company.
(7) Liability
of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian
and/or Depositary may withhold or deduct from any distributions made in respect
of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner hereof
remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer of ADSs, register the split-up or combination of ADRs and
(subject to paragraph (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
A-5
(8) Representations
and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.13 of the Deposit
Agreement), and
(vi) the Shares presented for deposit have not been stripped of any rights
or entitlements. Such representations and warranties shall survive
the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
(9) Filing
Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or this ADR evidencing the ADSs and the provisions of, or
governing, the Deposited Securities, to execute such certifications and to make
such representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration of Shares on the books of
the Company or of the Shares Registrar) as the Depositary or the Custodian may
deem necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations under the Deposit
Agreement and this ADR. The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by paragraph
(24), the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary’s, the Registrar’s and the Company’s
satisfaction.
A-6
(10) Charges
of Depositary. The Depositary
shall charge the following fees:
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(i)
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Issuance
Fee: to any person depositing Shares or to whom ADSs are
issued upon the deposit of Shares, a fee not in excess of U.S. $5.00 per
100 ADSs (or fraction thereof) so issued under the terms of the Deposit
Agreement (excluding issuances as a result of distributions described in
paragraph (iv) below);
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(ii)
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Cancellation
Fee: to any person surrendering ADS(s) for cancellation
and withdrawal of Deposited Securities, a fee not in excess of U.S. $5.00
per 100 ADSs (or fraction thereof)
surrendered;
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(iii)
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Cash Distribution
Fee: to any Holder of ADSs, a fee not in excess of U.S.
$4.00 per 100 ADSs (or fraction thereof) held for the distribution of cash
dividends or other cash distributions (i.e., sale of rights and other
entitlements) under the terms of the Deposit Agreement, unless
prohibited by the exchange upon which the ADSs are listed;
and
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(iv)
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Stock
Distribution/Rights Exercise Fee: to any Holder of ADSs,
a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
pursuant to (i) stock dividends or other free stock distributions or
(ii) exercise of rights to purchase additional ADSs unless
prohibited by the exchange upon which the ADSs are
listed;
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(v)
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Other Distribution
Fee: to any Holder of ADS(s) receiving a distribution of
securities other than ADSs or rights to purchase additional ADSs (i.e.,
spin-off shares), a fee not in excess of U.S. $5.00 per unit of 100
securities (or fraction thereof)
distributed;
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(vi)
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Annual Depositary
Services Fee: to any Holder of ADSs, a fee not in excess
of U.S. $4.00 per 100 ADSs (or fraction thereof) held on the applicable
record date(s) established by the Depositary;
and
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(vii)
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ADR Transfer
Fee: to any person presenting an ADR for transfer, a fee
not in excess of U.S. $1.50 per certificate presented for
transfer.
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Holders,
Beneficial Owners, persons depositing Shares for deposit and persons
surrendering ADSs for cancellation for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
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(i)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(ii)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
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A-7
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(iii)
|
such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
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(iv)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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(v)
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such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
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(vi)
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the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the servicing or delivery of Deposited
Securities.
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Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. The charges and expenses
of the Custodian are for the sole account of the Depositary.
(11) Title to
ADRs. It is a condition
of this ADR, and every successive Holder of this ADR by accepting or holding the
same consents and agrees, that title to this ADR (and to each ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless such holder is the
Holder of this ADR registered on the books of the Depositary or, in the case of
a Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s
representative is the Holder registered on the books of the
Depositary.
(12) Validity
of ADR. The Holder(s) of
this ADR (and the ADSs represented hereby) shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose against
the Depositary or the Company unless this ADR has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly-authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a
duly-authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADRs. An ADR bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such ADR by the
Depositary.
A-8
(13) Available
Information; Reports; Inspection of Transfer Books. The Company is
subject to the periodic reporting requirements of the Exchange Act and
accordingly files certain information with the Commission. These
reports and documents can be retrieved from the Commission's website (xxx.xxx.xxx) and can
be inspected and copied at the public reference facilities maintained by the
Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000. The
Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.
The
Registrar shall keep books for the registration of issuances and transfers of
ADSs which at all reasonable times shall be open for inspection by the Company
and by the Holders of such ADSs, provided that such inspection shall not be, to
the Registrar’s knowledge, for the purpose of communicating with Holders of such
ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the
ADSs.
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to paragraph
(24).
If any
ADSs are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registration of issuances, cancellations,
transfers, combinations and split-ups of ADSs and, if applicable, to countersign
ADRs evidencing the ADSs so issued, transferred, combined or split-up, in accordance with any
requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary after consultation with the Company or upon reasonable request of the
Company.
Dated:
|
CITIBANK,
N.A.
Transfer
Agent and Registrar
|
CITIBANK,
N.A.
as
Depositary
|
|
By:_____________________________
|
By:_______________________________
|
|
Authorized
Signatory
|
Authorized
Signatory
|
The
address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
A-9
FORM
OF REVERSE OF ADR
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(14) Dividends
and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of the receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received
in a Foreign Currency can in the judgment of the Depositary (pursuant to Section
4.8 of the Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (on the terms
described in Section 4.8 of the Deposit Agreement), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9 of the
Deposit Agreement, and (iii) distribute promptly the amount thus received
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as
can be distributed without attributing to any Holder a fraction of one cent, and
any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs then
outstanding at the time of the next distribution. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any
cash dividend or other cash distribution in respect of any Deposited Securities
an amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities shall
be reduced accordingly. Such withheld amounts shall be forwarded by
the Company, the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their respective nominees. Upon receipt
of confirmation of such deposit from the Custodian, the Depositary shall,
subject to and in accordance with the Deposit Agreement, establish the ADS
Record Date upon the terms described in Section 4.9 of the Deposit Agreement and
either (i) the Depositary shall, subject to Section 5.9 of the Deposit
Agreement, distribute to the Holders as of the ADS Record Date in proportion to
the number of ADSs held as of the ADS Record Date, additional ADSs, which
represent in the aggregate the number of Shares received as such dividend, or
free distribution, subject to the other terms of the Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights
and interest in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall
sell the number of Shares or ADSs, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms
described in Section 4.1 of the Deposit Agreement.
A-10
In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligations under Section 5.7 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and (b) fees and charges of, and the expenses incurred by, the Depositary)
to Holders entitled thereto upon the terms described in Section 4.1 of the
Deposit Agreement. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
Subject
to applicable Korean Law, whenever the Company intends to make a distribution
payable at the election of the holders of Shares in cash or in additional
Shares, the Company shall give notice thereof to the Depositary at least
forty-five (45) days prior to the proposed distribution stating whether or not
it wishes such elective distribution to be made available to Holders of
ADSs. Upon timely receipt of a notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of
ADSs. The Depositary shall make such elective distribution available
to Holders only if (i) the Company shall have timely requested that the elective
distribution be made available to Holders, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7 of the Deposit Agreement. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in Korea in
respect of the Shares for which no election is made, either (X) cash upon the
terms described in Section 4.1 of the Deposit Agreement or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.2 of
the Deposit Agreement. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described in Section
4.9 of the Deposit Agreement) and establish procedures to enable Holders to
elect the receipt of the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the proposed distribution (X) in
cash, the distribution shall be made upon the terms described in Section 4.1 of
the Deposit Agreement, or (Y) in ADSs, the distribution shall be made upon
the terms described in Section 4.2 of the Deposit Agreement. Nothing
herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the Holder
hereof will be given the opportunity to receive elective distributions on the
same terms and conditions as the holders of Shares.
A-11
Whenever
the Company intends to distribute to the holders of the Deposited Securities
rights to subscribe for additional Shares, the Company shall give notice thereof
to the Depositary at least forty-five (45) days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7 of the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably
practicable. In the event any of the conditions set forth above are
not satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of rights as
contemplated below. In the event all conditions set forth below are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.9 of the Deposit Agreement) and establish procedures
(x) to distribute rights to purchase additional ADSs (by means of warrants
or otherwise), (y) to enable the Holders to exercise such rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver
ADSs upon the valid exercise of such rights. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise rights to subscribe for Shares (rather than
ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5.7 of the Deposit Agreement or
determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Company shall assist the Depositary to the
extent necessary to determine such legality and practicability. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1 of the
Deposit Agreement. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) of the Deposit
Agreement, or to arrange for the sale of the rights upon the terms described in
Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights
to lapse. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or practicable to make such rights available
to Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale or exercise, or (iii) the
content of any materials forwarded to the Holders on behalf of the Company in
connection with the rights distribution.
A-12
Notwithstanding
anything herein or in the Deposit Agreement to the contrary, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights to
the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. Because Korean law presently does not contemplate the issuance
of rights in negotiable form and the possibility of such issuance is unlikely, a
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such
rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders of ADSs, the Depositary shall consult with
the Company, and the Company shall assist the Depositary, to determine whether
such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7 of the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable.
A-13
Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If (i)
the Company does not request the Depositary to make such distribution to Holders
or requests not to make such distribution to Holders, (ii) the Depositary does
not receive satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, or (iii) the Depositary determines that all or a portion of
such distribution is not reasonably practicable, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms of Section 4.1 of the
Deposit Agreement. If the Depositary is unable to sell such property,
the Depositary may dispose of such property for the account of the Holders in
any way it deems reasonably practicable under the circumstances.
(15) Redemption. If the Company
intends to exercise any right of redemption in respect of any of the Deposited
Securities, the Company shall give notice thereof to the Depositary at least
sixty (60) days prior to the intended date of redemption which notice shall set
forth the particulars of the proposed redemption. Upon timely receipt
of (i) such notice and (ii) satisfactory documentation given by the
Company to the Depositary within the terms of Section 5.7 of the Deposit
Agreement, and only if the Depositary shall have determined that such proposed
redemption is practicable, the Depositary shall provide to each Holder a notice
setting forth the intended exercise by the Company of the redemption rights and
any other particulars set forth in the Company’s notice to the
Depositary. The Depositary shall instruct the Custodian to present to
the Company the Deposited Securities in respect of which redemption rights are
being exercised against payment of the applicable redemption
price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon
delivery of such ADSs by Holders thereof upon the terms of Sections 4.1 and 6.2
of the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio)
upon the redemption of the Deposited Securities represented by ADSs (subject to
the terms of Section 4.8 of the Deposit Agreement and the applicable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by
the number of Deposited Securities represented by each ADS
redeemed.
A-14
(16) Fixing of
ADS Record Date. Whenever the
Depositary shall receive notice of the fixing of a record date by the Company
for the determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date ("ADS
Record Date") for the determination of the Holders of ADSs who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or withhold such consent, to receive
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in Korea. Subject to
applicable law and the provisions of Sections 4.1 through 4.8 and to the other
terms and conditions of this ADR and the Deposit Agreement, only the Holders of
ADSs at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such instructions, to receive
such notice or solicitation, or otherwise take action.
(17) Voting of
Deposited Securities. As soon as
practicable after receipt of notice of any meeting at which the holders of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of such consent or proxy
in accordance with Section 4.9 of the Deposit Agreement. The
Depositary shall, if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least thirty (30) days prior to the
date of such vote or meeting) and as soon as practicable after receipt thereof,
at the Company’s expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxies, (b) a statement that the Holders
at the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Company’s Articles
of Incorporation and the provisions of or governing Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by such Holder’s ADSs and (c)
a brief statement as to the manner in which such voting instructions may be
given. Voting instructions may be given only in respect of a number
of ADSs representing an integral number of Deposited Securities. Upon
the timely receipt from a Holder of ADSs of the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, the Articles of Incorporation of the
Company and the provisions of the Deposited Securities, to vote, or cause the
Custodian to vote, the Deposited Securities (in person or by proxy) represented
by such Holder’s ADSs in accordance with such instructions.
A-15
Neither
the Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the Custodian shall vote,
attempt to exercise the right to vote, or in any way make use of, for purposes
of establishing a quorum or otherwise, the Deposited Securities represented by
ADSs, except pursuant to and in accordance with the voting instructions timely
received from Holders or as otherwise contemplated herein. If the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder’s ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such
instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted. Notwithstanding anything else contained herein, the
Depositary shall, if so requested in writing by the Company, represent all
Deposited Securities (whether or not voting instructions have been received in
respect of such Deposited Securities from Holders as of the ADS Record Date) for
the sole purpose of establishing quorum at a meeting of
shareholders.
Notwithstanding
anything else contained in the Deposit Agreement or this ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited Securities and to
deliver to the Depositary an opinion of U.S. counsel addressing any actions
requested to be taken if so requested by the Depositary. There can be
no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) Changes
Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional or replacement securities, as applicable. The
Depositary may, with the Company’s approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional ADRs as in the case of a stock dividend on the Shares, or call for
the surrender of outstanding ADRs to be exchanged for new ADRs, in either case,
as well as in the event of newly deposited Shares, with necessary modifications
to the form of ADR contained in this Exhibit A to the
Deposit Agreement, specifically describing such new Deposited Securities or
corporate change. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, with the Company’s approval, and shall if the Company
requests, subject to receipt of an opinion of Company's counsel satisfactory to
the Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1 of the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
A-16
(19) Exoneration. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement or incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this ADR, by reason of any provision of any present or
future law or regulation of the United States, Korea or any other country, or of
any other governmental authority or regulatory authority or stock exchange, or
on account of possible criminal or civil penalties or restraint, or by reason of
any provision, present or future, of the Articles of Incorporation of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Incorporation of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs or (v) for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act
is intended by any provision of the Deposit Agreement or this ADR.
(20) Standard
of Care. The Company and
the Depositary assume no obligation and shall not be subject to any liability
under the Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s),
except that the Company and Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement and this ADR without
negligence or bad faith. Without limitation of the foregoing, neither
the Depositary, nor the Company, nor any of their respective controlling
persons, or agents, shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the ADSs, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary). The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company.
A-17
(21) Resignation
and Removal of the Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary under the Deposit Agreement by written
notice of resignation delivered to the Company, such resignation to be effective
on the earlier of (i) the 90th day after delivery thereof to the Company
(whereupon the Depositary shall be entitled to take the actions contemplated in
Section 6.2 of the Deposit Agreement), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be
removed by the Company by written notice of such removal, which removal shall be
effective on the later of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. In case at any time
the Depositary acting hereunder shall resign or be removed, the Company shall
use its best efforts to appoint a successor depositary, which shall be a bank or
trust company having an office in the Borough of Manhattan, the City of New
York. Every successor depositary shall be required by the Company to
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor (other than as contemplated in Sections 5.8 and
5.9 of the Deposit Agreement). The predecessor depositary, upon
payment of all sums due it and on the written request of the Company, shall
(i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and
deliver all right, title and interest to the Deposited Securities to such
successor, and (iii) deliver to such successor a list of the Holders of all
outstanding ADSs and such other information relating to ADSs and Holders thereof
as the successor may reasonably request. Any such successor depositary shall
promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
A-18
(22) Amendment/Supplement. Subject to the
terms and conditions of this paragraph (22), the Deposit Agreement and
applicable law, this ADR and any provisions of the Deposit Agreement may at any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable without the prior written consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than the charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act or (b) the ADSs to be settled solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such ADS(s), to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
and this ADR, if applicable, as amended or supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to
surrender such ADS and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary
shall, at any time at the written direction of the Company, terminate the
Deposit Agreement by providing notice of such termination to the Holders of all
ADSs then outstanding at least thirty (30) days prior to the date fixed in such
notice for such termination. If ninety (90) days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in Section 5.4 of the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all ADSs then outstanding at least thirty (30)
days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder of ADS(s) will, upon
surrender of such ADS(s) at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of ADSs referred to
in paragraph (2) and in Section 2.7 of the Deposit Agreement and subject to the
conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to Delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
ADS. If any ADSs shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADSs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.7 of the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for ADSs surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary for the surrender of an
ADS, any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six
months from the date of termination of the Deposit Agreement, the Depositary may
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders whose ADSs have not theretofore been
surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement with respect to the
ADSs and the Deposited Securities, except to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of ADSs, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement under Sections 5.8, 5.9 and
7.6.
A-19
(24) Compliance
with U.S. Securities Laws. Notwithstanding
anything in this ADR or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
(25) Certain
Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this paragraph (25) and Section 5.10 of the
Deposit Agreement, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the
Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares. In its capacity as
Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu
of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the "Applicant") to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary
may also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant).
A-20
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
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Dated:
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Name:
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||
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By:
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Title:
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NOTICE:
The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority to
act in such capacity, if not on file with the Depositary, must be
forwarded with this
ADR.
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__________________________
SIGNATURE
GUARANTEED
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All
endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer
Association, Inc.
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Legends
[The
ADRs issued in respect of Partial Entitlement American Depositary Shares shall
bear the following legend on the face of the ADR: "This ADR evidences
ADSs representing 'partial entitlement' [type of shares] of GMARKET
Inc. and as such do not entitle the holders thereof to the same per-share
entitlement as other [type of shares] Shares (which are 'full entitlement' [type
of shares] Shares) issued and outstanding at such time. The ADSs
represented by this ADR shall entitle holders to distributions and entitlements
identical to other ADSs when the [type of shares] Shares represented by such
ADSs become 'full entitlement' [type of shares] Shares."]
A-21
EXHIBIT
B
FEE
SCHEDULE
DEPOSITARY
FEES AND RELATED CHARGES
All
capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Deposit Agreement.
|
I.
|
Depositary
Fees
|
The
Company, the Holders, the Beneficial Owners and the persons depositing Shares or
surrendering ADSs for cancellation agree to pay the following fees of the
Depositary:
| Service |
Rate
|
By
Whom Paid
|
|
| (1) | Issuance of ADSs upon deposit of Shares (excluding issuances as a result of distributions described in paragraph (4) below). |
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) issued.
|
Person
depositing Shares or person receiving ADSs.
|
| (2) | Delivery of Deposited Securities against surrender of ADSs. |
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof)
surrendered.
|
Person
surrendering ADSs for purpose of withdrawal of Deposited Securities or
person to whom Deposited Securities are delivered.
|
| (3) | Distribution of cash dividends or other cash distributions (i.e., sale of rights and other entitlements). |
Up
to U.S. $4.00 per 100 ADSs (or fraction thereof) held as of the record
date for such distribution, unless
prohibited by the exchange upon which the ADSs are listed.
|
Person
to whom distribution is made.
|
| (4) | Distribution of ADSs pursuant to (i) stock dividends or other free stock distributions, or (ii) exercise of rights to purchase additional ADSs. |
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held as of the record
date for such distribution, unless
prohibited by the exchange upon which the ADSs are listed.
|
Person
to whom distribution is made.
|
| (5) | Distribution of securities other than ADSs or rights to purchase additional ADSs (i.e., spin-off shares). |
Up
to U.S. $5.00 per unit of 100 securities (or fraction thereof)
distributed.
|
Person
to whom distribution is made.
|
| (6) | Annual Depositary Services. |
Up
to U.S. $4.00 per 100 ADSs (or fraction thereof) held.
|
Person
holding ADSs on applicable record date(s) established by the
Depositary.
|
| (7) | Transfer of ADRs. | U.S. $1.50 per certificate presented for transfer. | Person presenting certificate for transfer. |
B-1
|
II.
|
Charges
|
Holders,
Beneficial Owners, persons depositing Shares for deposit and persons
surrendering ADSs for cancellation and for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
|
(i)
|
taxes
(including applicable interest and penalties) and other governmental
charges;
|
|
(ii)
|
such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
|
|
(iii)
|
such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
|
|
(iv)
|
the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
|
|
(v)
|
such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
|
|
(vi)
|
the
fees and expenses incurred by the Depositary, the Custodian or any nominee
in connection with the servicing or delivery of Deposited
Securities.
|
B-2
