AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of [DATE] , 2005
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of [DATE] , 2005
TABLE
OF CONTENTS
| Page | ||||
| PARTIES | 1 | |||
| RECITALS | 1 | |||
| 1 | ||||
| Section 1. | Certain Definitions | 1 | ||
|
(a)
|
ADR Register | 1 | ||
|
(b)
|
ADRs; Direct Registration ADRs | 1 | ||
|
(c)
|
ADS | 1 | ||
|
(d)
|
CSD | 1 | ||
|
(e)
|
Custodian | 1 | ||
|
(f)
|
Deliver, execute, issue et al. | 1 | ||
|
(g)
|
|
Delivery Order1 | 1 | |
|
(h)
|
Deposited Securities | 1 | ||
|
(i)
|
Direct Registration System | 1 | ||
|
(j)
|
Holder | 1 | ||
|
(k)
|
Securities Act of 1933 | 1 | ||
|
(l)
|
Securities Exchange Act of 1934 | 1 | ||
|
(m)
|
Shares | 1 | ||
|
(n)
|
Transfer Office | 1 | ||
|
(o)
|
Withdrawal Order | 1 | ||
| Section 2. | ADRs | 2 | ||
| Section 3. | Deposit of Shares | 2 | ||
| Section 4. | Issue of ADRs | 2 | ||
| Section 5. | Distributions on Deposited Securities | 3 | ||
| Section 6. | Withdrawal of Deposited Securities | 3 | ||
| Section 7. | Substitution of ADRs | 4 | ||
| Section 8. | Cancellation and Destruction of ADRs | 4 | ||
| Section 9. | The Custodian | 4 | ||
| Section 10. | Co-Registrars and Co-Transfer Agents | 4 | ||
| Section 11. | Lists of Holders | 4 | ||
| Section 12. | Depositary's Agents | 5 | ||
| Section 13. | Successor Depositary | 5 | ||
| Section 14. | Reports | 5 | ||
| Section 15. | Additional Shares | 5 | ||
| Section 16. | Indemnification | 5 | ||
| Section 17. | Notices | 6 | ||
| Section 18. | Miscellaneous | 6 | ||
| Section 19. | Consent to Jurisdiction | |||
| TESTIMONIUM | 7 | |||
| SIGNATURES | 7 | |||
i
EXHIBIT
A
| Page | ||||
| FORM OF FACE OF ADR |
A-1
|
|||
| Introductory Paragraph |
A-1
|
|||
| (1) | Issuance of ADRs | A-2 | ||
| (2) | Withdrawal of Deposited Securities | A-2 | ||
| (3) | Transfers of ADRs | A-3 | ||
| (4) | Certain Limitations | A-3 | ||
| (5) | Taxes | A-4 | ||
| (6) | Disclosure of Interests | A-5 | ||
| (7) | Charges of Depositary | A-6 | ||
| (8) | Available Information | A-7 | ||
| (9) | Execution | A-7 | ||
| Signature of Depositary | A-7 | |||
| Address of Depositary's Office | A-7 | |||
| FORM OF REVERSE OF ADR | A-7 | |||
| (10) | Distributions on Deposited Securities | A-8 | ||
| (11) | Record Dates | A-9 | ||
| (12) | Voting of Deposited Securities | A-9 | ||
| (13) | Changes Affecting Deposited Securities | A-10 | ||
| (14) | Exoneration | A-10 | ||
| (15) | Resignation and Removal of Depositary; the Custodian | A-11 | ||
| (16) | Amendment | A-11 | ||
| (17) | Termination | A-11 | ||
| (18) | Further Assurances | A-12 | ||
ii
DEPOSIT
AGREEMENT dated as of , 2005 (the "Deposit Agreement") among
PIXELPLUS CO., LTD. and its successors (the "Company"), JPMORGAN CHASE
BANK,
N.A., as depositary hereunder (the "Depositary"), and all holders from time
to
time of American
Depositary Receipts issued hereunder ("ADRs") evidencing American Depositary
Shares
("ADSs") representing deposited Shares (defined below). 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 set forth in this Deposit Agreement. All
capitalized
terms used herein have the meanings ascribed to them in Section 1 or elsewhere
in this
Deposit Agreement. The parties hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs
in
physical certificated form, and the terms and conditions governing the Direct
Registration
ADRs (as hereinafter defined), shall be substantially in the form of Exhibit
A
annexed
hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership
of which is recorded on the Direct Registration System. References to "ADRs"
shall include
certificated ADRs and Direct Registration ADRs, unless the context otherwise
requires. The
form
of ADR is hereby incorporated herein and made a part hereof; the provisions
of
the form
of
ADR shall be binding upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR
represents the right to receive one-half of one Share and a pro rata share
in
any other Deposited
Securities.
(d) "CSD.
means
any institution authorized under the applicable law
to
effect
book-entry transfers of securities of Korean corporations, which may include
Korea Securities
Depository.
(e) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as
the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(f) The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and, when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(g) "Delivery
Order"
is
defined in Section 3.
(h) "Deposited
Securities"
as of
any time means all Shares at such time deposited under this Deposit Agreement
and any and all other Shares, securities, property and cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
1
(i) "Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by
the
Depositary pursuant to which the Depositary may record the ownership of ADRs
without the
issuance of a certificate, which ownership shall be evidenced by periodic
statements issued by the
Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System
shall include access to the Profile Modification System maintained by DTC
which
provides
for automated transfer of ownership between DTC and the
Depositary.
(j) "Holder"
means
the person or persons in whose name an ADR is registered on the
ADR
Register.
(k) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(l) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(m) "Shares"mean
the
common shares of the Company and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(n) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(o) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of
ADR,
with such changes as may be required by the Depositary or the Company to comply
with
their obligations hereunder, any applicable law, regulation or usage or to
indicate any special
limitations or restrictions to which any particular ADRs are subject. ADRs
may
be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the facsimile signature of anyone who was at the
time
of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that
such
officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated ADRs are specifically requested by the Holder.
2
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the Custodian
or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10)
or
(13) of the form of ADR, the Custodian shall, as soon as transfer and
recordation can be accomplished,
transfer and record the Shares being deposited in the name of the Depositary
or,
subject
to applicable law, its nominee on the shareholders' register or the books of
the
CSD, if applicable.
Deposited Securities shall be held by the Depositary or by a Custodian for
the
account
and to the order of the Depositary, or at such other place or places as the
Depositary shall determine,
subject to the applicable laws of Korea, in all cases at the cost and expense
of
the person
making such deposit (or for whose benefit such deposit is made). Deposited
Securities shall
be
held by the Custodian for the account and to the order of the Depositary at
such
place or places
and in such manner as the Depositary shall determine. Deposited Securities
may
be delivered
by the Custodian to any person only under the circumstances expressly
contemplated in this
Deposit Agreement. To the extent that the provisions of or governing the Shares
make delivery
of certificates therefor impracticable, Shares may be deposited hereunder by
such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation,
by causing them to be credited to an account maintained by the Custodian for
such purpose
with the Company or an accredited intermediary, such as a bank, acting as a
registrar for the
Shares, together with delivery of the documents, payments and Delivery Order
referred to herein
to
the Custodian or the Depositary.
The
Company shall from time to time notify the Depositary and the Custodian in
writing with
respect to any such restrictions on the deposit of its Shares. To the extent
no
such written notification
shall have been received by the Depositary, the Depositary shall be protected
in
acting
hereunder as if no such restriction exists. To the extent a deposit of Shares
would result in the
number of Shares on deposit with the Custodian exceeding the maximum number
of
Shares theretofore
consented to by the Company as being permitted to be represented by ADSs, the
Depositary
will not accept the deposit of such Shares unless and until the Company shall
have consented
thereto in writing, such consent not to be unreasonably withheld or delayed.
In
order to enable
the Depositary, the Custodian and their respective agents to accept the deposit
of additional
Shares hereunder and issue ADSs representing such securities in respect thereof,
the Company
hereby consents, after giving effect to such deposits, to deposits from
shareholders of the
Company and others which will enable up to a total of 2,850,000 Shares to be
represented by ADSs
at
any one time. At
any
time as the aforementioned number of Shares are represented by outstanding
ADSs, no ADSs above such number may be issued on the deposit of Shares without
the
Company's prior consent, which shall not be unreasonably withheld. The number
of
Shares on
deposit consented by the Company shall be automatically adjusted to give effect
to any securities
deposited by the Company in connection with (x) offerings of rights to acquire
additional
ADSs, (y) share dividends and other free distributions of shares, and/or (z)
a
subdivision
of Shares, if any, and may be increased as determined from time to time by
the
Company
and the Depositary. The provisions of this paragraph shall cease to apply at
such time as
the
Company's consent is no longer required under Korean laws or regulations.
3
4.
Issue
of ADRs.
Upon
receipt by a Custodian of a deposit pursuant to Section 3 hereunder
and a proper acknowledgment or other evidence (i) from the Company (or the
appointed
agent of the Company for transfer and registration of Shares), satisfactory
to
the Depositary
that any Deposited Securities are properly recorded upon the shareholders'
register of the
Company (or such agent) maintained for that purpose in the name of the
Depositary or (ii) where
such deposit is made by entry in the books of a CSD, from such CSD that any
Deposited Securities
have been recorded upon the books of such CSD in the name of the Depositary,
together
with the other documents required hereunder, the Custodian shall notify the
Depositary of
such
deposit and of the information contained in any related Delivery Order by
letter, first class
airmail postage prepaid, or, at the request, risk and expense of the person
making the deposit,
by cable, telex or facsimile transmission. After receiving such notice from
the
Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue at
the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
discretion that any distribution pursuant to paragraph (10) of the form of
ADR
is not practicable
with respect to any Holder, the Depositary may make such distribution as it
so
deems practicable,
including the distribution of foreign currency, securities or property (or
appropriate documents
evidencing the right to receive foreign currency, securities or property) or
the
retention
thereof as Deposited Securities with respect to such Holder's ADRs (without
liability for
interest thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order) or by such other means as the Depositary may deem practicable,
including, without limitation,
by transfer of record ownership thereof to an account designated in the
Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a
registrar for the Deposited Securities.
4
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser,
upon the Holder thereof filing with the Depositary a request for such execution
and delivery
and a sufficient indemnity bond and satisfying any other reasonable requirements
imposed
by the Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in
certificated form
so
cancelled in accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time appoint
one or more agents to act for it as Custodian hereunder. Each Custodian so
appointed (other
than JPMorgan Chase Bank, N.A.) shall give written notice to the Company and
the
Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary.
The Depositary may, after consultation with the Company if practicable,
discharge any
Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing
to act hereunder as Custodian shall deliver, upon the instruction of the
Depositary, all Deposited
Securities held by it to a Custodian continuing to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer
offices in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or
co-transfer agent (other than JPMorgan Chase Bank, N.A.) shall give notice
in
writing to the Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of this Deposit Agreement and applicable laws.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company may
request. The
Depositary or its agent shall furnish to the Company promptly upon the written
request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders
as
of a date within
seven days of the Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company of such appointment and shall remain responsible for the performance
of
such obligations
as if no agent were appointed.
5
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder
by at least 30 days prior written notice of its election so to do delivered
to
the Company
and the Depositary may at any time be removed by the Company by at least 30
days
prior
written notice of such removal. Notwithstanding anything to the contrary
contained herein, in
case
at any time the Depositary acting hereunder shall resign or be removed, it
shall
continue to
act as
Depositary for the purpose of terminating this Deposit Agreement pursuant to
paragraph (17)
of
the form of ADR. Any bank or trust company into or with which the Depositary
may
be merged
or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary
receipt business, shall be the successor of the Depositary without the execution
or filing
of
any document or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy
thereof in English or with an English translation or summary. The Company has
delivered to
the
Depositary, the Custodian and any Transfer Office, a copy of all provisions
of
or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company
and, promptly upon any change thereto, the Company shall deliver to the
Depositary, the
Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions
as so changed. The Depositary and its agents may rely upon the Company's
delivery thereof
for all purposes of this Deposit Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company 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 securities
laws in the United States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the
Depositary and its agents against any loss, liability or expense (including
reasonable fees and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended, modified
or
supplemented from time to time in accordance herewith (i) by either the
Depositary or its agents
or
their respective directors, employees, agents and affiliates, except, subject
to
the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence
or bad faith of the Depositary, or (ii) by the Company or any of its directors,
employees,
agents or affiliates.
6
The
indemnities set forth in the preceding paragraph shall apply to any liability
or
expense which may arise out of any misstatement or alleged misstatement or
omission or alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable
fees and expenses of counsel) incurred by the Company in respect of this Deposit
Agreement
to the extent such loss, liability or expense is due to the negligence or bad
faith of the Depositary
or the Custodian acting hereunder.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the
other
for any indirect, special, punitive or consequential damages (collectively
"Special Damages")
except (i) to the extent such Special Damages arise from the gross negligence
or
willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages
arise from or out of a claim brought by a third party (including, without
limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of
the
gross negligence or willful misconduct of the party seeking indemnification
hereunder.
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
|
| Four Xxx Xxxx Xxxxx |
| Xxx Xxxx, Xxx Xxxx 00000 |
| Attention: ADR Administration |
| Fax: (000) 000-0000 |
| 5th Floor, Intellige 0, XXXX Xxxxx |
| 00-0 Xxxxxxx-xxxx, Xxxxxxx-Xx Seongnam-si |
| Gyeonggi-do, 463-811, The Republic of Korea |
| Attention: Chief Financial Officer |
| Fax: (0000) 000-0000 |
7
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal
or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners
of
ADRs from time to time shall be parties to this Deposit Agreement and shall
be
bound by
all of
the provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect,
the remaining provisions shall in no way be affected thereby. This Deposit
Agreement may
be
executed in any number of counterparts, each of which shall be deemed an
original and all
of
which shall constitute one instrument.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or
proceeding against the Company brought by the Depositary or any Holder, arising
out of or based
upon this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any
state
or federal court in New York, New York, and irrevocably waives any objection
which it may
now
or hereafter have to the laying of venue of any such proceeding, and irrevocably
submits
to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The
Company has appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000,
as
its authorized agent (the "Authorized Agent") upon which process may be served
in any
such
action arising out of or based on this Deposit Agreement or the transactions
contemplated
hereby which may be instituted in any state or federal court in New York, New
York
by
the Depositary or any Holder, and waives any other requirements of or objections
to personal
jurisdiction with respect thereto. The Company represents and warrants that
the
Authorized
Agent has agreed to act as said agent for service of process, and the Company
agrees to
take
any and all action, including the filing of any and all documents and
instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process
upon the Authorized Agent and written notice of such service to the Company
shall be deemed,
in every respect, effective service of process upon the Company. If, for any
reason, the Authorized
Agent named above or its successor shall no longer serve as agent of the Company
to receive
service of process in New York, the Company shall promptly appoint a successor
acceptable
to the Depositary, so as to serve and will promptly advise the Depositary
thereof. In the
event
the Company fails to continue such designation and appointment in full force
and
effect,
the Company hereby waives personal service of process upon it and consents
that
any such service
of process may be made by certified or registered mail, return receipt
requested, directed to
the
Company at its address last specified for notices hereunder, and service so
made
shall be deemed
completed five (5) days after the same shall have been so mailed.
Notwithstanding the foregoing,
any action based on this Agreement may be instituted by the Depositary or any
Holder in
any
competent court in the Republic of Korea.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in
any
respect thereof, 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, or from execution of judgment, or other legal process or proceeding
for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings
may at any time be commenced, with respect to its obligations, liabilities
or
other matter
under or arising out of or in connection with the Shares or Deposited
Securities, the ADSs, the ADRs or this Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably
and unconditionally waives, and agrees not to plead or claim, any such immunity
and consents
to such relief and enforcement.
8
IN
WITNESS WHEREOF, PIXELPLUS CO., LTD. and JPMORGAN CHASE
BANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above
set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs
issued in accordance with the terms hereof.
| PIXELPLUS CO., LTD. | |||
| By: __________________________ | |||
| Name:: | |||
| Title: | |||
| JPMORGAN CHASE BANK, N.A. | |||
| By: __________________________ | |||
| Name: | |||
| Title: Vice President |
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
| ___ | No. of ADSs: | ||
| Number | ________ | ||
| Each ADS represents | |||
| One-half of one Share | |||
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
(Incorporated
under the
laws
of
the Republic of Korea)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States, as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each
(subject to paragraph (13)) representing one-half of one common share (including
the rights to
receive Shares described in paragraph (1), "Shares" and, together with any
other
securities, cash
or
property from time to time held by the Depositary in respect or in lieu of
deposited Shares,
the "Deposited Securities"), of Pixelplus Co., Ltd., a corporation organized
under the laws
of
the Republic of Korea (the "Company"), deposited under the Deposit Agreement
dated as of
[DATE]
, 2005 (as amended from time to time, the "Deposit Agreement") among the
Company,
the Depositary and all Holders from time to time of American Depositary Receipts
issued
thereunder ("ADRs"), each of whom by accepting an ADR becomes a party thereto.
The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall
be
governed by and construed in accordance with the laws of the State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
satisfactory to the Custodian; (b) rights to receive Shares from the Company
or
any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or,
(c)
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b)
above, "Pre-released ADRs") only if (i) Pre-released ADRs are fully
collateralized (marked to market
daily) with cash or such other collateral as the Depositary deems appropriate
held by the Depositary
for the benefit of Holders (but such collateral shall not constitute "Deposited
Securities"),
(ii) each recipient of Pre-released ADRs agrees in writing with the Depositary
that such
recipient or its customer (a) owns such Shares, (b) assigns all beneficial
right, title and interest
therein to the Depositary, (c) holds such Shares for the account of the
Depositary and (d) will
deliver such Shares to the Custodian as soon as practicable and promptly upon
demand therefor
and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those
evidenced by Pre-released ADRs), 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
retain for its own account any earnings on collateral for Pre-released ADRs
and
its charges for
issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary
may accept deposits for forwarding to the Custodian and may deliver ADRs at
a
place other
than its office. Every person depositing Shares under the Deposit Agreement
represents and
warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable and free
of
pre-emptive rights, that the person making such deposit is duly authorized
so to
do and that
such
Shares (A) are not "restricted securities" as such term is defined in Rule
144
under the Securities
Act of 1933 unless at the time of deposit they may be freely transferred in
accordance with
Rule
144(k) and may otherwise be offered and sold freely in the United States or
(B)
have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive
the deposit of Shares and issuance of ADRs. If any of the representations or
warranties are
incorrect in any way, the Company and the Depositary may, in their sole
discretion, at the cost
and
expense of the Holder, take any and all actions necessary to correct the
consequences of such
misrepresentation. The Depositary will not knowingly accept for deposit under
the Deposit Agreement
any Shares required to be registered under the Securities Act of 1933 and not
so
registered;
the Depositary may refuse to accept for such deposit any Shares identified
by
the Company
in order to facilitate the Company's compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer
Office or (ii)
proper instructions and documentation in the case of a Direct Registration
ADR,
the Holder hereof
is
entitled to delivery at, or in the case of Deposited Securities in
dematerialized form from,
the
Custodian's office of the Deposited Securities at the time represented by the
ADSs evidenced
by this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may
deliver such Deposited Securities at such other place as may have been requested
by the Holder.
As of the date of the Deposit Agreement, a Holder who wants to withdraw Shares
must register
its identity with the Financial Supervisory Service of Korea before the
acquisition of Shares
if
such registration has not been made unless such Holder intends to sell the
Shares within three
months. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal
of Deposited Securities may be restricted only for the reasons set forth in
General Instruction I.A.(1) of Form F-6 (as such instructions may be amended
from time to time) under the
Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a
register (the
"ADR
Register") for the registration, registration of transfer, combination and
split-up of ADRs,
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System,
which at all reasonable times will be open for inspection by Holders and the
Company for
the
purpose of communicating with Holders in the interest of the business of the
Company or a
matter
relating to the Deposit Agreement and (b) facilities for the delivery and
receipt of ADRs. The
term
ADR Register includes the Direct Registration System. Title to this ADR (and
to
the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed
(in
the case
of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer,
is transferable by delivery with the same effect as in the case of negotiable
instruments under
the
laws of the State of New York; provided
that the
Depositary, notwithstanding any notice
to
the contrary, may treat the person in whose name this ADR is registered on
the
ADR Register
as the absolute owner hereof for all purposes and neither the Depositary nor
the
Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5),
this
ADR is transferable on the ADR Register and may be split into other ADRs or
combined with
other ADRs into one ADR, evidencing the aggregate number of ADSs surrendered
for
split-up or combination, by the Holder hereof or by duly authorized attorney
upon surrender of this ADR
at
the Transfer Office properly endorsed (in the case of ADRs in certificated
form)
or upon delivery
to the Depositary of proper instruments of transfer and duly stamped as may
be
required by
applicable law; provided
that the
Depositary may close the ADR Register at any time or from time
to
time when deemed expedient by it or requested by the Company. At the request
of
a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration
ADR, or vice versa, execute and deliver a certificated ADR or a Direct
Registration ADR,
as
the case may be, for any authorized number of ADSs requested, evidencing the
same aggregate
number of ADSs as those evidenced by the certificated ADR or Direct Registration
ADR,
as
the case may be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or
combination of any ADR, the delivery of any distribution in respect thereof,
or,
subject to the last
sentence of paragraph (2), the withdrawal of any Deposited Securities, and
from
time to time in
the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or
the
Custodian may
require: (a) payment with respect thereto of (i) any stock transfer or other
tax
or other governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange
control approval, beneficial ownership of any securities, payment of applicable
Korean or
other
taxes or governmental charges, or legal or beneficial ownership and the nature
of such interest, information relating to the registration on the shareholders'
register of the Company (or the
appointed agent of the Company for the transfer and registration of Shares)
or
the books of the
CSD
of the Shares presented for deposit, compliance with applicable law,
regulations, provisions
of or governing Deposited Securities and terms of the Deposit Agreement and
this
ADR,
as
it may deem necessary or proper; and (c) compliance with such regulations as
the
Depositary
may establish consistent with the Deposit Agreement. As a condition of accepting
Shares
for deposit, the Depositary may require that the person making such deposit
furnish evidence
satisfactory to the Depositary (which may be an opinion of counsel) that any
necessary approvals
have been waived or granted by any governmental or quasi-governmental body
or
agency
in
Korea, including, without limitation, any such body which is then performing
the
function
of regulation of currency exchange. The issuance of ADRs, the acceptance of
deposits of
Shares, the registration, registration of transfer, split-up or combination
of
ADRs or, subject to the
last
sentence of paragraph (2), the withdrawal of Deposited Securities may be
suspended, generally
or in particular instances, when the ADR Register, any register for Deposited
Securities is
closed, the books of the CSD are closed, or when any such action is deemed
advisable by the Depositary
for any reason or the Company by reason of any requirement of law or
governmental or
governmental body or commission rule or regulation..
A-3
(5)
Taxes.
Holders
hereof and owners of an interest herein acknowledge that cash distributions
in respect of Deposited Securities may be subject to withholding for taxes
under
Korean
law, and the Company will withhold for taxes any amounts that it is required
to
withhold under
applicable Korean law. If any tax or other governmental charge shall become
payable by or
on
behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other
governmental charge shall be paid by the Holder hereof to the Depositary. The
Depositary may
refuse to effect any registration, registration of transfer, split-up or
combination hereof or, subject
to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such
payment is made. The Depositary may also deduct from any distributions on or
in
respect of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any
part
or all of such Deposited Securities (after attempting by reasonable means to
notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of
any
such sale in
payment of such tax or other governmental charge, the Holder hereof remaining
liable for any deficiency,
and shall reduce the number of ADSs evidenced hereby to reflect any such sales
of Shares.
In connection with any distribution to Holders, the Company or its agent will
remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing
to
such authority or agency by the Company or its agent; and the Depositary and
the
Custodian
will remit to the appropriate governmental authority or agency all amounts
(if
any) required
to be withheld and owing to such authority or agency by the Depositary or the
Custodian.
The Depositary shall, at the cost and expense of the Company, forward to the
Company
or its agent such information from its records as the Company may reasonably
request to
enable
the Company or its agent to file necessary reports with governmental authorities
or agencies.
If the Depositary determines that any distribution in property other than cash
(including
Shares or rights) on Deposited Securities is subject to any tax that the
Depositary or the
Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to
pay
such taxes, by public or private sale, and the Depositary shall distribute
the
net proceeds of any
such
sale or the balance of any such property after deduction of such taxes to the
Holders entitled
thereto. Notwithstanding any other provision of the Deposit Agreement or this
ADR ,before
making any distribution or other payment on any Deposited Securities, the
Company shall make
such
deductions (if any) which, by the laws of Korea, the Company is required to
make
in respect
of any income, capital gains or other taxes and the Company may also deduct
the
amount of
any
tax or governmental charges payable by the Company or for which the Company
might be made
liable in respect of such distribution or other payment or any document signed
in connection
therewith. In making such deductions, neither the Company nor the Depositary
shall have
any
obligation to any Holder to apply a rate under any treaty or other arrangement
between Korea
and
the country within which such Holder is resident unless such Holder has timely
provided
to the Company directly or through the Depositary evidence of the residency
of
such Holder
that is accepted by the relevant tax authorities of Korea. Each Holder of an
ADR
or an interest
therein agrees to 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. In connection with any distribution to Holders, the Company or its
agent will remit
to
the appropriate governmental authority or agency all amounts (if any) required
under applicable
law to be withheld and remitted by the Company or such agent and owing to such
governmental
authority or agency by the Company or such agent; and the Depositary or the
Custodian
will remit to the appropriate governmental authority or agency all amounts
(if
any) required
under applicable law to be withheld and remitted by the Depositary or the
Custodian and owing
to
such authority or agency by the Depositary or the Custodian. If the Company
(or
any of its
agents) withholds from any distribution or other payment any amount on account
of taxes or governmental
charges, or pays any other tax in respect of such distribution or other payment,
the Company
shall (and cause such agent to) remit promptly to the Depositary information
about such
taxes or governmental charges withheld and paid, and the tax receipt (or other
proof of payment
from the applicable governmental authority therefor.
A-4
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited
Securities may require disclosure of or impose limits on beneficial or other
ownership of
Deposited Securities, other Shares and other securities and may provide for
blocking transfer, voting
or
other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree
to
comply with all such disclosure requirements and ownership limitations and
to
comply with
any
reasonable Company instructions in respect thereof. The Company reserves the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities
so as to permit the Company to deal directly with the Holder thereof as a holder
of Shares
and Holders agree to comply with such instructions. The Depositary agrees to
cooperate with
the
Company in its efforts to inform Holders of the Company s
exercise of its rights under this
paragraph and agrees to consult with, and provide reasonable assistance without
risk, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may
enforce such rights with respect to any Holder.
A-5
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued
against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs
for
withdrawal of Deposited Securities, up to U.S. $5.00 for each 100 ADSs (or
portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities
and property received in respect of Share Distributions, Rights and Other
Distributions prior
to
such deposit to pay such charge. The following additional charges shall be
incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or
to
whom ADRs are issued (including, without limitation, issuance pursuant to a
stock dividend
or stock split declared by the Company or an exchange of stock regarding the
ADRs or the
Deposited Securities or a distribution of ADRs pursuant to paragraph (10)),
whichever is applicable
(i) a fee of $0.02 or less per ADS (or portion thereof) for any Cash
distribution made pursuant
to the Deposit Agreement, (ii) to the extent not prohibited by the rules of
the
primary stock
exchange upon which the ADSs are listed, a fee of $1.50 per ADR or ADRs for
transfers made
pursuant to paragraph (3) hereof, (iii) a fee for the distribution or sale
of
securities pursuant to
paragraph (10) hereof, such fee being in an amount equal to the fee for the
execution and delivery
of ADSs referred to above which would have been charged as a result of the
deposit of such
securities (for purposes of this paragraph (7) treating all such securities
as
if they were Shares)
but which securities or the net cash proceeds from the sale thereof are instead
distributed by
the
Depositary to Holders entitled thereto,
(iv)
a fee
of US$0.02 per ADS (or portion thereof) per
year
for the services performed by the Depositary in administering the ADRs (which
fee shall be
assessed against Holders as of the record date or dates set by the Depositary
not more than once
each
calendar year and shall be payable at the sole discretion of the Depositary
by
billing Holders
or by deducting such charge from one or more cash dividends or other cash
distributions),
and (v) such fees and expenses as are incurred by the Depositary (including
without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign
exchange control regulations or any law or regulation relating to foreign
investment) in delivery
of Deposited Securities or otherwise in connection with the Depositary's or
its
Custodian's
compliance with applicable law, rule or regulation.
The
Company will pay all other charges
and expenses of the Depositary and any agent of the Depositary (except the
Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock
transfer or other taxes and other governmental charges (which are payable by
Holders or persons
depositing Shares), (ii) cable, telex and facsimile transmission and delivery
charges incurred
at the request of persons depositing, or Holders delivering Shares, ADRs or
Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the
registration or transfer of Deposited Securities on any applicable register
or
the books of the CSD,
in
any case in connection with the deposit or withdrawal of Deposited Securities
(which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no
such
fees in respect of the Shares as of the date of the Deposit Agreement), (iv)
expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid
out
of such foreign currency), and (v) any other charge payable by any of the
Depositary, any
of
the Depositary’s
agents,
including, without limitation, the custodian, or the agents of the Depositary’s
agents in connection with the servicing of the Shares or other Deposited
Securities (which
charge shall be assessed against Holders as of the record date or dates set
by
the depositary
and shall be payable at the sole discretion of the Depositary by billing such
Holders or by
deducting such charge from one or more cash dividends or other cash
distributions).
Such
charges may at any time and from time to time be changed by agreement between
the Company and
the
Depositary.
A-6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received
by the Custodian or its nominee as a holder of Deposited Securities and made
generally available
to the holders of Deposited Securities, are available for inspection by Holders
at the offices
of the Depositary and the Custodian and at the Transfer Office. The Depositary
will distribute
copies of such communications (or English translations or summaries thereof)
to
Holders
when furnished by the Company. The Company is subject to the periodic reporting
requirements
of the Securities Exchange Act of 1934 and accordingly files certain reports
with the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other
information may be inspected and copied at public reference facilities
maintained by the Commission
located at the date hereof at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| By _________________________ | ||
|
Authorized
Officer
|
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date
set
by the Depositary therefor at such Holder's address shown on the ADR Register,
in proportion
to the number of Deposited Securities (on which the following distributions
on
Deposited
Securities are received by the Custodian) represented by ADSs evidenced by
such
Holder's
ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend
or other cash distribution or the net proceeds of sales of any other
distribution or portion thereof
authorized in this paragraph (10) ("Cash"), on an averaged or other practicable
basis, subject
to (i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible
or impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's
expenses in (1) converting any foreign currency to U.S. dollars by sale or
in
such other
manner as the Depositary may determine to the extent that it determines that
such conversion
may be made on a reasonable basis, (2) transferring foreign currency or U.S.
dollars to
the
United States by such means as the Depositary may determine to the extent that
it determines
that such transfer may be made on a reasonable basis, (3) obtaining any approval
or license
of any governmental authority required for such conversion or transfer, which
is
obtainable
at a reasonable cost and within a reasonable time and (4) making any sale by
public or private
means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing
whole ADSs representing any Shares available to the Depositary resulting from
a
dividend
or free distribution on Deposited Securities consisting of Shares (a "Share
Distribution")
and (ii) U.S. dollars available to it resulting from the net proceeds of sales
of Shares
received in a Share Distribution, which Shares would give rise to fractional
ADSs if additional
ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments
in the discretion of the Depositary representing rights to acquire additional
ADRs in respect
of any rights to subscribe for additional Shares or rights of any nature
available to the Depositary
as a result of a distribution on Deposited Securities ("Rights"), to the extent
that the Company
timely furnishes to the Depositary evidence satisfactory to the Depositary
that
the Depositary
may lawfully distribute the same (the Company has no obligation to so furnish
such evidence),
or (ii) to the extent the Company does not so furnish such evidence and sales
of
Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence
and such sales cannot practicably be accomplished by reason of the
nontransferability of
the
Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may
lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting
from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights
("Other Distributions"), by any means that the Depositary may deem equitable
and
practicable, or (ii) to the extent the Depositary deems distribution of such
securities or property not
to be
equitable and practicable, any U.S. dollars available to the Depositary from
the
net proceeds
of sales of Other Distributions as in the case of Cash. Such U.S. dollars
available will be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional
cents will be withheld without liability and dealt with by the Depositary in
accordance with
its
then current practices.
A-8
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall
be
responsible for the fee assessed by the Depositary for administration of the
ADR
program
and for any expenses provided for in paragraph (7) hereof as well as for the
determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited
Securities, to give instructions for the exercise of any voting rights, to
receive any notice
or
to act in respect of other matters and only such Holders shall be so entitled
or
obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice
stating (a) such information
as is contained in such notice and any solicitation materials, (b) that each
Holder on the
record date set by the Depositary therefor will, subject to applicable
provisions of Korean law,
be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
and
(c) the
manner in which such instructions may be given, including instructions to give
a
discretionary
proxy to a person designated by the Company. Upon receipt of instructions of
a
Holder
on
such record date in the manner and on or before the date established by the
Depositary for
such
purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions
of or governing Deposited Securities to vote or cause to be voted the Deposited
Securities
represented by the ADSs evidenced by such Holder's ADRs in accordance with
such
instructions.
The Depositary will not itself exercise any voting discretion in respect of
any
Deposited
Securities. To the extent such instructions are not so received by the
Depositary from any
Holder, the Depositary shall take such action as is necessary, upon the written
request of the Company
and subject to applicable law, and the terms and conditions of the Deposited
Securities, to
cause
such underlying Shares to be counted for the purposes of satisfying applicable
quorum requirements;
provided, however that, except to the extent Holders and beneficial owners
of
ADSs
have
been given at least 30 days to provide the Depositary with voting instructions,
the Shares
shall not be so counted with respect to any matter as to which the Company
informs the Depositary
(and the Company agrees to provide such information promptly in writing) or
the
Depositary
reasonably believes that (x) substantial opposition exists or (y) materially
affects the rights
of
holders of Shares. For purposes hereof, by way of example and not limitation,
it
is agreed
that routine matters, such as appointing auditors and directors (except where
a
competing director
or slate of directors is proposed), and resolutions to approve the public
offering or private
placement of de minimis amounts of securities (i.e. issuances of Shares which,
based on the
number of Shares issued and outstanding prior to giving effect to such issuance,
represents less
than
ten percent of the then outstanding Shares), would not materially affect the
rights of holders
of Shares. There can be no assurance that Holders generally or any Holder in
particular will
receive the notice described above with sufficient time to enable such Holder
to
return voting
instructions to the Depositary in a timely manner.
A-9
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with
or
without calling this ADR for exchange) or cash, securities or property on the
record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution
not distributed to Holders or any cash, securities or property available to
the
Depositary
in respect of Deposited Securities from (and the Depositary is hereby authorized
to surrender
any Deposited Securities to any person and, irrespective of whether such
Deposited Securities
are surrendered or otherwise cancelled by operation of law, rule, regulation
or
otherwise,
to sell by public or private sale any property received in connection with)
any
recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale
of
all or substantially all the assets of the Company, and to the extent the
Depositary does not
so
amend this ADR or make a distribution to Holders to reflect any of the
foregoing, or the net
proceeds thereof, whatever cash, securities or property results from any of
the
foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent
its pro rata interest in the Deposited Securities as then
constituted.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur
no
liability (i) if any present or future law, rule or regulation of the United
States, the Republic
of Korea or any other country, or of any governmental or regulatory authority
or
any securities
exchange or market or automated quotation system, the provisions of or governing
any Deposited
Securities, any present or future provision of the Company's charter, any act
of
God, war,
terrorism or other circumstance beyond its control shall prevent, delay or
subject to any civil or
criminal penalty
any act which the Deposit Agreement or this ADR provides shall be done or
performed
by
it or
them (including, without limitation, voting pursuant to paragraph (12) hereof),
or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to the
extent they
are
specifically set forth in this ADR and the Deposit Agreement without gross
negligence or
bad
faith; (c) in the case of the Depositary and its agents, be under no obligation
to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or this
ADR;
(d) in the case of the Company and its agents hereunder be under no obligation
to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities
or this ADR, 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; or (e) not be liable for any action
or
inaction by it
in
reliance upon the advice of or information from legal counsel, accountants,
any
person presenting
Shares for deposit, any Holder, or any other person believed by it to be
competent to give
such
advice or information. The Depositary, its agents and the Company may rely
and
shall be
protected in acting upon any written notice, request, direction or other
document believed by them
to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary
and its agents will not be responsible for any failure to carry out any
instructions to vote
any
of the Deposited Securities (provided such act was in good faith), for the
manner in which
any
such vote is cast or for the effect of any such vote. For the avoidance of
doubt, the Depositary
shall have no responsibility whatsoever to the Company, any Holder or beneficial
owner
or
any other person with respect to any deficiency which might arise because the
Depositary
is subject to any tax in respect of the Deposited Securities or any part thereof
or any income
therefrom or any proceeds thereof. The Depositary and its agents may own and
deal in any
class
of securities of the Company and its affiliates and in ADRs. Notwithstanding
anything to
the
contrary set forth in the Deposit Agreement or an ADR, the Depositary and its
agents may fully
respond to any and all demands or requests for information maintained by or
on
its behalf in connection with the Deposit Agreement, any Holder or Holders,
any
ADR or ADRs or otherwise related
hereto to the extent such information is requested or required by or pursuant
to
any lawful authority,
including without limitation laws, rules, regulations, administrative or
judicial process, banking,
securities or other regulators. The Company has agreed to indemnify the
Depositary and
its
agents under certain circumstances and the Depositary has agreed to indemnify
the Company
under certain circumstances. Neither the Company nor the Depositary nor any
of
their respective
agents shall be liable to Holders or beneficial owners of interests in ADSs
for
any indirect,
special, punitive or consequential damages. No disclaimer of liability under
the
Securities
Act of 1933 is intended by any provision hereof.
A-10
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by at least 30 days prior written notice of its election to do so
delivered to the Company,
or be removed as Depositary by the Company by at least 30 days prior written
notice of
such
removal delivered to the Depositary. The Depositary may, after consultation
with
the Company
if practicable,appoint substitute or additional Custodians and the term
"Custodian"
refers
to
each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit
Agreement may be amended by the Company and the Depositary, provided
that any
amendment
that imposes or increases any fees or charges (other than stock transfer or
other taxes and
other
governmental charges, transfer or registration fees, cable, telex or facsimile
transmission
costs, delivery costs or other such expenses), or that shall otherwise prejudice
any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment
shall have been given to the Holders. Every Holder of an ADR at the time any
amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold
such
ADR, to consent and agree to such amendment and to be bound by the Deposit
Agreement
as amended thereby. In no event shall any amendment impair the right of the
Holder of
any
ADR to surrender such ADR and receive the Deposited Securities represented
thereby, except
in
order to comply with mandatory provisions of applicable law. 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 of 1933
or (b) the ADSs
or
Shares to be traded 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 prejudice
any substantial rights of Holders. Notwithstanding the foregoing, if any
governmental body
or
regulatory body should adopt new laws, rules or regulations which would require
amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith,
the Company and the Depositary may amend or supplement the Deposit Agreement
and
the
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.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit
Agreement, the Depositary may, and shall at the written direction of the
Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination.
After the date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions
on
Deposited Securities
and deliver Deposited Securities being withdrawn. As soon as practicable after
the expiration
of six months from the date so fixed for termination, the Depositary shall
sell
the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in
a
segregated account
the net proceeds of such sales, together with any other cash then held by it
under the Deposit
Agreement, without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs
not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from
all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such
net
proceeds and other cash. After the date so fixed for termination, the Company
shall be discharged
from all obligations under the Deposit Agreement except for its obligations
to
the Depositary
and its agents.
A-11
(18)
Further
Assurances.
The
Holders and each person holding an interest in this or any ADR
shall
take, and the Depositary is hereby authorized to take on their behalf, such
additional actions
as may be necessary or appropriate under applicable law in order to effectuate,
carry out and
perform all of the terms, conditions and purposes of the Deposit Agreement,
all
the transactions
contemplated by the Deposit Agreement, including, without limitation, the
designation
of one of the Holders or persons holding an interest in this or any ADR as
the
representative
of all Holders and persons holding an interest in ADRs.
A-12
