Exhibit (a)(2)
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 dated as of June 28, 2007 (the "Amendment") to the Deposit
Agreement dated as of April 3, 2000 (the "Deposit Agreement"), among
hanarotelecom incorporated (the "Company"), incorporated under the laws of the
Republic of Korea, Deutsche Bank Trust Company Americas, as depositary (the
"Depositary"), and all Registered Holders and Beneficial Owners from time to
time of American Depositary Receipts ("ADRs") issued thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit Agreement for
the purposes set forth therein; and
WHEREAS, the Company has or intends to file a Form 15F with the Securities
and Exchange Commission in order to deregister its ordinary shares under the
Securities Exchange Act of 1934, as amended.
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company and
the Depositary desire to amend the terms of the Deposit Agreement and ADRs to
reflect the Rule 12g3-2(b) exempt status of the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
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ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT AND FORM OF ADR
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SECTION 2.01. All references in the Deposit Agreement to the term "Deposit
Agreement" shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement, as amended by this Amendment.
SECTION 2.02. All references in the Deposit Agreement to the Company shall
be references to hanarotelecom incorporated and all references in the Deposit
Agreement to the Depositary shall be references to Deutsche Bank Trust Company
Americas (fka Bankers Trust Company)
SECTION 2.03. Section 4.10 of the Deposit Agreement and the first paragraph
of Article (11) of the form of Receipt are amended to read as follows:
The Company publishes on its web site on an ongoing basis, or otherwise
furnishes the United States Securities and Exchange Commission (the
"Commission") with, certain public reports and documents required by
foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act of 1934. To the extent furnished to the Commission, such reports and
documents may be inspected and copied at the public reference facilities
maintained by the Commission located at the date of the Deposit Agreement
at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION 2.04. The address of the Depositary set forth in Section 7.04 of
the Deposit Agreement is amended to read as follows:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Attention: ADR Administration
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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SECTION 3.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and the Form F-6Pos as executed and delivered by the
Company in connection herewith, will be and have been, respectively, duly
and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder in
the Republic of Korea, neither of such agreements need to be filed or
recorded with any court or other authority in the Republic of Korea, nor
does any stamp or similar tax need to be paid in the Republic of Korea on
or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE IV
MISCELLANEOUS
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SECTION 4.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective on the date in which the Company becomes
exempt from the continued reporting obligations of the Securities Exchange Act
of 1934, as amended in accordance with Rule 12g3-2(b) promulgated thereunder
(the "Effective Date").
SECTION 4.02. Indemnification. The parties hereto shall remain subject to
the indemnification provisions of Section 5.08 of the Deposit Agreement, as
amended hereby in connection with any and all liability it or they may incur as
a result of the terms of this Amendment and the transactions contemplated
herein.
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SECTION 4.03. Governing Law; Jurisdiction. The Deposit Agreement, the
Amendment and the ADRs as amended hereby shall be governed by and construed in
accordance with the laws of the State of New York. Any dispute, legal suit,
action or proceeding arising out of or based upon the Deposit Agreement (as
amended by the Amendment) or the transactions contemplated thereby shall be
submitted to the exclusive jurisdiction of the Courts of New York, New York.
SECTION 4.04. Outstanding ADRs. ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR effected hereby, do
not need to be called in for exchange and may remain outstanding until such time
as the Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and all actions
deemed necessary to effect the foregoing.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above and all Holders shall become parties hereto by holding ADSs
as of the Effective Date.
HANAROTELECOM INCORPORATED
By: /s/ Xxxxxx Xxx
---------------------
Name: Xxxxxx Xxx
Title: Senior Executive Vice President &
CFO
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxx Xxxxxx
---------------------
Name: Xxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
---------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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EXHIBIT A
FORM OF FACE OF AMERICAN DEPOSITARY RECEIPT
CUSIP Number: 000000000
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one deposited Share)
DEUTSCHE BANK TRUST COMPANY AMERICAS
AMERICAN DEPOSITARY RECEIPT
EVIDENCING AMERICAN DEPOSITARY SHARES
REPRESENTING COMMON SHARES OF
NOMINAL VALUE D 5,000 EACH OF
HANAROTELECOM, INCORPORATED.
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF KOREA)
Deutsche Bank Trust Company Americas, as depositary (hereinafter called the
"Depositary"), hereby certifies that __________________, or registered assigns
is the owner of _________________ American Depositary Shares representing
deposited common shares of par value Won 5,000 each, or evidence of rights to
receive such shares (herein called "Shares") of hanarotelecom incorporated,
incorporated under the laws of the Republic of Korea (herein called the
"Company"). At the date of the Deposit Agreement, each American Depositary Share
represents one Share deposited or subject to deposit under the Deposit Agreement
(as such term is hereinafter defined) at the principal office of Korean
Securities Depositary (herein called the "Custodian"). The ratio of American
Depositary Shares to Shares is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Corporate Trust Office is
located at 00 Xxxx Xxxxxx, Xxx Xxxx. XX 00000.
2. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of April 3, 2000, as amended (herein called
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Registered Holders and Beneficial Owners from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Registered Holders and Beneficial Owners of the
Receipts 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 Depositary's
Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of Receipts at the Depositary's Corporate Trust Office, or
at such other offices as the Depositary may designate, for the purpose of
withdrawal of the Deposited Securities represented by the American Depositary
Shares evidenced thereby, and upon payment of the fees and expenses of the
Depositary for the cancellation of Receipts as provided in Section 5.09 of the
Deposit Agreement and Exhibit B thereto and payment of all taxes and other
governmental charges payable in connection with such surrender and withdrawal of
the Deposited Securities, and subject to the terms and conditions of the
Company's Articles of Incorporation, the Deposited Securities and the Deposit
Agreement, and to any other restriction applicable thereto, the Registered
Holder of such Receipts shall be entitled to delivery, to him or upon his order,
of the Shares and any other Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipts. Delivery of such Shares
and other Deposited Securities may be made by (a) book-entry transfer of Shares
represented by the American Depositary Shares evidenced by such Receipt to an
account in the name of the Registered Holder or as ordered by him and (b) the
delivery at the office of the Custodian of any other securities, property and
cash to which such Registered Holder is then entitled in respect of such
Receipts to such Registered Holder or as ordered by him. Such delivery shall be
made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank, and if the Depositary so requires, the
Registered Holder thereof shall execute and deliver to the Depositary a written
order directing the Depositary to cause the Shares and any other Deposited
Securities being withdrawn to be delivered to or upon the written order of a
person or persons designated in such order.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. In the case of surrender of
a Receipt evidencing a number of American Depositary Shares representing other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be recorded in the name of the Registered
Holder surrendering such Receipt, and 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 shares 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.
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3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
Subject to the limitations set forth herein and in the Deposit Agreement,
the transfer of this Receipt is registrable on the books of the Depositary or
the Registrar, if any, by the Registered Holder hereof in person or by a duly
authorized attorney, upon surrender at the Depositary's designated transfer
offices of this Receipt, properly endorsed or accompanied by a properly executed
instrument of transfer and duly stamped as required by applicable law. This
Receipt may be split into other such Receipts, or may be combined with other
such receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt, the delivery of
any distribution thereon, or withdrawal of any Deposited Securities, the
Depositary, the Company, the Custodian, or Foreign Registrar may require (a)
payment from the depositor of the Shares or the presenter of the Receipt of a
sum sufficient to reimburse it for (i) any tax or other governmental charge and
any stock transfer or registration fees in respect of Receipts, (ii) any tax or
other governmental charge and any stock transfer or registration fees in respect
of registration of transfers of Shares or the Deposited Securities upon any
applicable register and (iii) any applicable fees as provided in this Receipt;
(b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.01 of the Deposit Agreement; (c) compliance with the provisions of the
Company's Articles of Incorporation in effect from time to time and resolutions
and regulations of the Company's Board of Directors adopted pursuant to such
Articles of Incorporation; and (d) compliance with (i) any laws or governmental
regulations relating to Receipts or American Depositary Shares or to the
withdrawal of Deposited Securities and (ii) such reasonable regulations as the
Depositary and Company may establish consistent with the provisions of the
Deposit Agreement or this Receipt, including, without limitation, this Article
3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts, or the combination or split-up of Receipts, generally may
be suspended, during any period when the transfer books of the Depositary or any
register for Shares or other Deposited Securities are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of the Deposit
Agreement or this Receipt, or for any other reason.
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Notwithstanding any other provision of the Deposit Agreement or this
Receipt, the Depositary may suspend the withdrawal of all or any category of
Deposited Securities (i) during any period when the register of shareholders or
other relevant holders of the Company is closed, generally or in one or more
localities, (ii) in order to comply with any applicable law or governmental or
stock exchange regulation, or (iii) any other reason that may at any time be
specified in paragraph I(A)(1) of the General Instructions to Form F-6 under the
Securities Act, as such instructions may from time to time be in effect, or any
successor provision thereto. The Depositary is not under any obligation to
ascertain or determine whether or not any such delivery should be refused and
the Depositary shall not be liable for any loss, damages or other consequences
arising from any such refusal. The Depositary may refuse to deliver Deposited
Securities generally or in one or more localities if such refusal is deemed
necessary or desirable by the Depositary, in good faith, at any time or from
time to time because of any requirement of law or of any government or
governmental authority, stock exchange or other body or commission, or under any
provision of the Deposit Agreement or for any other reason. Without limitation
of the foregoing, the Depositary shall not knowingly accept for deposit under
the Deposit Agreement any Shares or other Deposited Securities which are
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares.
4. LIABILITY OF REGISTERED HOLDER FOR TAXES AND OTHER CHARGES.
If any expense, transfer or registration fee, tax, duty, governmental or
other charge (including, but not limited to, charges imposed by any court,
regulatory body or central depositary for securities) shall become payable with
respect to this Receipt or with respect to any Deposited Securities represented
by American Depositary Shares evidenced hereby, such expense, transfer or
registration fee, tax, duty, governmental or other charge shall be payable by
the Registered Holder hereof to the Depositary. The Depositary may refuse to
effect any transfer of this Receipt or any combination or split-up hereof or any
withdrawal of Deposited Securities represented by American Depositary Shares
evidenced hereby until such payment is made, and may withhold or deduct from any
dividends or other distributions and may sell any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge (and any taxes
or expenses arising out of such sale), the Registered Holder hereof remaining
liable for any deficiency.
Every Registered 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 Registered Holder and/or
Beneficial Owner excluding any claims (a) arising from the negligence or bad
faith of the Depositary, the Custodian and any of their agents, officers,
employees and Affiliates or (b) relating to any Pre-Release Transaction not
engaged in or on behalf of such Registered Holder or Beneficial Owner.
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5. REPRESENTATIONS AND WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefore are validly issued, fully paid, non-assessable, and free
of any preemptive rights, if any, of the holders of outstanding Shares and that
the person making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that (i) Shares presented for deposit are not,
and the Receipts evidencing the American Depositary Shares representing such
Shares would not be, Restricted Securities, and (ii) the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing such
Shares by that person are not otherwise restricted under the Securities Act.
Such representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts in respect thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Registered Holder or
Beneficial Owner of a Receipt may be required by the Depositary or the Company
from time to time (i) to file with the Depositary, the Company, or the Custodian
such proof of citizenship or residence, taxpayer status, exchange control
approval, payment of applicable taxes or other governmental charges, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or such Receipt, or such information relating to the registration on
the books of the Company or the Foreign Registrar, if applicable, or any other
information the Depositary or the Company may deem necessary or appropriate to
evidence compliance with all applicable laws and regulations, and (ii) to
execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper or as the Company may reasonably
request by written request to the Depositary. The Depositary and the Registrar
may withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or distribution of rights or of the sale proceeds
thereof or the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made to the Company's and the Depositary's satisfaction. The
Depositary shall from time to time advise the Company of the availability of any
such proofs, certificates or other information and shall provide the Company, in
a timely manner, with copies thereof upon written request by the Company, unless
such disclosure is prohibited by law.
8. CHARGES OF DEPOSITARY.
The Depositary shall be entitled to receive the following
remuneration and reimbursement in respect of its services under the Deposit
Agreement (a) from the Registered Holder (i) taxes and other governmental
charges; (ii) such registration fees as may from time to time be in effect for
the registration of transfers, if any, of Shares generally on the share register
of the Company (or any appointed agent of the Company for transfer and
registration of Shares which may be the Registrar) and accordingly applicable to
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transfer of Shares to the name of the Depositary, a Custodian or their nominees
or the person who makes a withdrawal of Shares, on the making of deposits or
withdrawals pursuant to Sections 2.02 or 2.06 of the Deposit Agreement; (iii)
such cable, telex, facsimile transmission and delivery expenses as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Shares or the Registered Holders; (iv) such customary expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.05
of the Deposit Agreement (including, without limitation, expenses incurred on
behalf of Registered Holders in connection with compliance with foreign exchange
control restrictions); (v) a fee not in excess of $5.00 per 100 Receipts (or
portion thereof) for the issuance and surrender, respectively of Receipts
pursuant to the Deposit Agreement; (vi) a fee not in excess of $0.02 per
American Depositary Share (or portion thereof) held for any cash distribution
made pursuant to the Deposit Agreement; and (vii) a fee for the distribution of
the Deposited Securities pursuant to the Deposit Agreement, such fee being an
amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities, but which securities were instead distributed by the
Depositary to Registered Holders, (viii) together with all expenses, transfer
and registration fees, taxes, duties, governmental or other charges payable by
the Depositary, any Agent or the Custodian in connection with any of the above,
including, but not limited to, charges imposed by any court, regulatory body or
central depository for securities, and (b) from the Company (i) such sums and
amounts as may have been agreed between the Company and the Depositary; (ii) all
reasonable costs in connection with the delivery of information under Sections
4.10 and 5.06 of the Deposit Agreement; and (iii) in respect of any exceptional
fees, taxes, duties, charges, costs and expenses which the Depositary finds it
necessary or desirable or is required to undertake or to pay in the performance
of its obligations under this agreement, such additional remuneration as shall
be agreed between the Depositary and the Company.
Subject to the above paragraph all fees, taxes, duties, charges, costs and
expenses which are payable by the Company shall be paid by the Company to the
Depositary upon demand therefore.
9. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts against evidence of rights to receive
Shares from the Company (or any agent of the Company recording Share ownership).
No such issue of Receipts will be deemed a "Pre-Release" subject to the
restrictions of the following paragraph. Subject to the further terms and
provisions of this Article 8, the Depositary and its agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in Receipts to the extent permissible under applicable law.
In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; provided, however, that the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit
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Agreement (each such transaction is hereinafter referred to as a "Pre-Release").
The Depositary may, subject to the provisions of Section 2.06 of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of Receipts which
have been pre-released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been pre-released. The Depositary may-receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered that such person, or its customer, beneficially
owns the Shares to be remitted, as the case may be, and that such person or its
customer agrees to indicate the Depositary as owner of such Shares in its
records and to hold such Shares in trust for the Depositary until such Shares
are delivered to the Depositary or the Custodian, and unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares (b) at
all times fully collateralized with cash or other collateral the Depositary
deems appropriate, (c) terminable by the Depositary on five (5) business days
notice, and (d) subject to such further indemnities and credit regulation as the
Depositary deems reasonably appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems reasonably appropriate and may change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into under the Deposit Agreement with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
reasonably appropriate. For purposes of enabling the Depositary to fulfill its
obligations to the Registered Holder under this Receipt and the Deposit
Agreement, the collateral referred to in clause (b) above shall be held by the
Depositary for the benefit of the Registered Holder as security for the
performance of the Pre-Releasee's obligations to the Depositary in connection
with a Pre-Release transaction, including the Pre-Releasee's obligation to
deliver Shares or Receipts upon termination of a Pre-Release transaction (and
shall not, for the avoidance of doubt, constitute Deposited Securities
hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
Subject to the limitations set forth herein or in the Deposit Agreement, it
is a condition of this Receipt, and every successive holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt,
when properly endorsed or accompanied by a properly executed instrument of
transfer and transferred in accordance with the terms of the Deposit Agreement,
is transferable by delivery with the same effect as in the case of a negotiable
instrument, provided, however, that until this Receipt is transferred on the
books of the Depositary as provided in the Deposit Agreement, the Depositary and
the Company, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes, and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under
this Receipt or the Deposit Agreement to any Beneficial Owner or holder of a
Receipt unless such Beneficial Owner or holder is the Registered Holder hereof.
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10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
10. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company publishes on its web site on an ongoing basis, or otherwise
furnishes the United States Securities and Exchange Commission (the
"Commission") with, certain public reports and documents required by foreign law
or otherwise under Rule 12g3-2(b) under the Securities Exchange Act of 1934. To
the extent furnished to the Commission, such reports and documents may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of the Deposit Agreement at 000 X Xxxxxx, XX,
Xxxxxxxxxx, XX 00000.
The Depositary shall make available for inspection by Registered Holders of
Receipts at the Depositary's Corporate Trust Office any notices, reports and
other communications received from the Company which are both (a) received by
the Depositary, the Custodian or a nominee of either as the holder of the
Deposited Securities and (b) generally available to the holders of such
Deposited Securities by the Company.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any rules or regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian, of any notices, reports and other communications, including any proxy
soliciting materials, which are made generally available by the Company to
holders of its Shares or other Deposited Securities. If requested in writing by
the Company, the Depositary will arrange for the mailing, at the Company's
expense, of copies of such notices, reports and communications that are made
generally available by the Company to holders of its Shares or other Deposited
Securities and/or, at the written request of the Company and at the Company's
expense, make such notices, reports and other communications available to all
Registered 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 is required or as the Depositary may be required by any applicable
law or regulation. The Company will timely provide the Depositary with the
quantity of such notices, reports and communications, including any proxy
soliciting materials, as requested by the Depositary from time to time, in order
for the Depositary to effect such mailings. The Depositary and Custodian may
rely upon such copies for all purposes of this Receipt and the Deposit
Agreement. The Depositary will, at the expense of the Company, make such copy
and such notices, reports and communications available for inspection by
Registered Holders at the Depositary's Corporate Trust Office, at the office of
the Custodian and at any other designated transfer offices.
8
The Depositary will keep at its Corporate Trust Office a book or books for
the transfer and registration of Receipts which at all reasonable times shall be
open for inspection by the Registered Holders of Receipts; provided that such
inspection shall not be for the purpose of communicating with Registered Holders
of Receipts in the interest of a business or object other than the business of
the Company or a matter related to the Deposit Agreement or the Receipts.
The Depositary may close the books, at any time or from time to time, when
reasonably deemed expedient by it in connection with the performance of its
duties under the Deposit Agreement.
11. GOVERNING LAW.
The Deposit Agreement and the Receipts shall be governed by and construed
in accordance with the laws of the State of New York. Except as set forth in the
following sentence, the Company and the Depositary agree that the federal courts
in the State 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 the Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts.
The Company irrevocably designates, appoints and empowers CT Corporation
System located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Agent") its
authorized agent to receive and accept for and on its behalf, and on behalf of
its properties, assets and revenues, 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. If for any reason
the Agent shall cease to be available to act as such, the Company agrees to
designate a new agent in the United States on the terms and for the purposes of
Section 7.06 of the Deposit Agreement and with the prior consent of the
Depositary, which consent shall not be unreasonably withheld, and the Company
shall notify the Depositary of the address of such new agent. 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 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 7.04 of the Deposit Agreement. 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 on the Deposit Agreement.
9
In addition, the Company and the Depositary hereby agree that in the event
that a Registered Holder brings a suit, action or proceeding against (a) the
Depositary in its capacity as Depositary under the Deposit Agreement or (b)
against both the Company and the Depositary, in either case, in any state or
federal court of the United States, and the Depositary has any claim for
indemnification or otherwise, against the Company arising out of the subject
matter of such suit, action or proceeding, then the Depositary may pursue such
claim against the Company 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 irrevocably submits 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.
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 Section 7.06 of the Deposit Agreement, 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.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
The provisions of Section 7.06 of the Deposit Agreement shall survive any
termination of the Deposit Agreement in whole or in part.
Dated:
-----------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By:
-----------------------
The address of the Corporate Trust office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000.
10
FORM OF REVERSE OF RECEIPT
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or the Custodian receives any cash dividend or
other cash distribution on any Deposited Securities, the Depositary will, if at
the time of receipt thereof any amounts received in a foreign currency can in
the judgment of the Depositary be converted on a reasonable basis into Dollars
transferable to the United States, and subject to the Deposit Agreement, if
practicable in the opinion of the Depositary, give notice to the Registered
Holders of its receipt of such payment, specifying the amount per Share payable
in respect of such dividend or distribution and the estimated date, as
determined by the Depositary for such payments and shall convert or cause to be
converted such dividend or distribution into Dollars and will promptly
distribute the Dollars thereby received (net of the fees, expenses and charges
of the Depositary as provided in the Deposit Agreement) to the Registered
Holders entitled thereto; provided, however, that in the event that any of the
deposited Shares is not entitled, by reason of its date of issuance, or
otherwise, to receive the full amount of such cash dividend or distribution, the
Depositary will make appropriate adjustments in the amounts distributed to the
Registered Holders of the Receipts issued in respect of such Shares; and
provided, further, that in the event that the Company or the Depositary is
required to withhold and does withhold from such cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed on the Receipts issued in respect of such
Deposited Securities shall be reduced accordingly.
Whenever the Depositary or the Custodian receives any distribution upon the
Deposited Securities other than cash, Shares or rights pursuant to Section 4.01,
4.03 or 4.04 of the Deposit Agreement if permissible under the laws and
regulations of Korea, the Depositary will, after obtaining, at the Company's
expense, opinion(s) of United States and Korean counsel, as applicable,
reasonably satisfactory to the Depositary that the proposed distribution does
not violate any applicable laws or regulations, cause such amount of the
securities or property received by it to be distributed to the Registered
Holders of Receipts on the record date fixed pursuant to Section 4.06 of the
Deposit Agreement, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution net of expenses of the
Depositary; provided, however, that if in the opinion of the Depositary such
distribution cannot be made among the Registered Holders of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by each
of them, or if for any other reason the Depositary deems such distribution not
to be lawful or feasible, the Depositary may adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the sale, at public or private sale, of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees, expenses and charges of the Depositary as
provided in Article 7 hereof and Section 5.09 and Exhibit B of the Deposit
Agreement) shall be distributed by the Depositary to the Registered Holders of
Receipts entitled thereto as in the case of a distribution received in cash, all
in the manner and subject to the conditions set forth in the Deposit Agreement.
11
If any distribution made by the Company with respect to the Deposited
Securities and received by the Depositary shall remain unclaimed at the end of
12 years from the first date upon which such distribution is made available to
Registered Holders and subject to any applicable laws, all rights of the
Registered Holders to such distribution or the proceeds of the sale thereof
shall be extinguished and the Depositary shall return the same to the Company
for its own use and benefit (except for any distribution upon the liquidation of
the Company when the Depositary shall retain the same) and the Depositary shall
have no obligation therefor or liability with respect thereto.
No distributions to Holders pursuant to Section 4.02 of the Deposit
Agreement shall be unreasonably delayed by any action of the Depositary or any
of its agents.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall if the Company so requests, distribute to
the Registered Holders of Receipts on the record date fixed pursuant to Section
4.06 of the Deposit Agreement, in proportion to the number of American
Depositary Shares held by each of them, additional Receipts in the same form for
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.12
of the Deposit Agreement and the payment of the fees, expenses and charges of
the Depositary as provided in Article 7 hereof and Section 5.09 and Exhibit B of
the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares, the Depositary may, in its discretion, sell the amount of
Shares represented by the aggregate of such fractions, at public or private
sale, at such place or places and upon such terms as it may deem proper, and
distribute the net proceeds of any such sale in accordance with Section 4.01 of
the Deposit Agreement. If additional Receipts are not so distributed (except as
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities.
Before making any distribution or other payment in respect of any Deposited
Securities, the Company will make such deductions, if any, which, by any
applicable laws or regulations, the Company is required to make in respect of
any income, capital gains or other taxes (including interest and penalties) 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 gains or other payments or any document signed in
connection therewith or any capital gains or other taxes payable by the
Registered Holders. The Company or its agent will remit to the appropriate
governmental agency in Korea all amounts withheld and owing to such agency. The
Depositary will 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 agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Registered Holders of Receipts.
12
15. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall as soon as
practicable give notice to the Registered Holders of such offer (unless notified
by the Company that such offer or invitation should not be made), specifying, if
applicable, the earliest date established for acceptance thereof, the last date
established for acceptance thereof and the manner by which and time during which
Registered Holders may request the Depositary to exercise such rights as
provided below or, if such be the case, give details of how the Depositary
proposes to distribute the rights or to dispose of such rights and make the net
proceeds available to such Registered Holders in accordance with the procedures
for distributing cash provided for in Section 4.01 of the Deposit Agreement, or,
if by the terms of such rights offering or for any other reason it would not be
lawful or feasible for the Depositary either to make such rights available to
any Registered Holders or to dispose of such rights and make the net proceeds
available to such Registered Holders, then the Depositary shall allow the rights
to lapse. If at the time of the offering of any rights the Depositary determines
in its discretion that it is lawful and feasible to make such rights available
to all or certain Registered Holders but not to other Registered Holders, the
Depositary may distribute to any Registered Holder to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Registered Holder, warrants or other instruments
therefore in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed
generally, if the Company determines in its discretion that it is lawful and
feasible to make such rights available, by means of warrants or otherwise, to
certain Registered Holders, the Depositary will, subject to applicable law, make
such rights available to such Registered Holders, upon written notice from the
Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Registered Holder
has executed such documents as the Company and the Depositary have determined
are reasonably required under applicable law.
If the Company has distributed warrants or other instruments for rights to
all or certain Registered Holders, then upon instruction from any such
Registered Holder pursuant to such warrants or other instruments to the
Depositary from such Registered Holder to exercise such rights, upon payment by
such Registered Holder to the Depositary for the account of such Registered
Holder of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Registered Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Registered Holder.
As agent for such Registered Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver
Receipts to such Registered Holder. In the case of a distribution pursuant to
this paragraph, such Receipts shall be legended in accordance with applicable
U.S. laws, and shall be subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
13
If the Company determines in its discretion that it is not lawful or
feasible to make such rights available to all or certain Registered Holders, it
may sell the rights, warrants or other instruments (either by public or private
sale and otherwise at its discretion subject to Korean laws and regulations) in
proportion to the number of American Depositary Shares held by the Registered
Holders to whom it has determined it may not lawfully or feasibly make such
rights available, allocate the net proceeds of such sales (net of the fees,
expenses and charges of the Depositary as provided in Section 5.09 and Exhibit B
of the Deposit Agreement and all taxes and other governmental charges payable in
connection with such rights, and subject to the terms and conditions of the
Deposit Agreement) for the account of such Registered Holders otherwise entitled
to such rights, warrants or other instruments, upon an averaged or other
practical basis without regard to any distinctions among such Registered Holders
on account of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Registered Holders unless it has
received from the Company evidence, as provided in Section 5.07 of the Deposit
Agreement, to the effect that (i) a registration statement under the Securities
Act covering such offering is in effect or (ii) such offering does not require
registration under the Securities Act. If a Registered Holder of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no registration under the Securities Act, the Depositary will not
effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company satisfactory to the Depositary upon
which the Depositary may rely that such distribution to such Registered Holder
is exempt from such registration. Nothing herein or in the Deposit Agreement
shall create, or shall be construed to create, any obligation on the part of the
Company to file such a registration statement or to endeavor to have such a
registration statement in effect or to register such rights or the securities
presented thereby under the Securities Act or any other applicable law.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Registered Holders
in general or any Registered Holder in particular, any foreign exchange exposure
or loss incurred in connection with such sale, or any liability to the purchaser
of such rights, warrants or other instruments.
14
16. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if, at the time,
the foreign currency so received can, in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly convert or cause
to be converted as, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency and any expenses incurred on behalf of the Registered Holder in
complying with currency exchange control or other governmental requirements)
shall be promptly distributed to the Registered Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants 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
Registered Holders on account of exchange restrictions, the date of delivery of
any Receipt or otherwise and shall be net of any expenses of conversion into
Dollars incurred by the Depositary as provided in Section 5.09 and Exhibit B of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall have
discretion and 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, nor shall it be liable for failure to receive
approval or license.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible into Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the good faith opinion of the Depositary is not obtainable, or if any such
approval or license is not obtainable at a reasonable cost or within a
reasonable period as determined by the Depositary, the Depositary may in its
discretion, but subject to applicable laws and regulations, either (i)
distribute such foreign currency (or an appropriate document evidencing the
right to receive such foreign currency) to the Registered Holders of Receipts
entitled to receive the same, or (ii) hold such foreign currency for the
respective accounts of such persons, uninvested and without liability for
interest.
If any such conversion of foreign currency, in whole or in part, can be
effected as aforesaid for distribution to some but not all of the Registered
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Registered Holders of Receipts entitled
thereto and, with respect to the balance of such foreign currency, shall at the
direction of the Company, but subject to any applicable laws and regulations,
either (i) distribute or make available for distribution such balance to the
persons who were Registered Holders of Receipts entitled thereto with respect to
whom such conversion could not then be effected, or (ii) hold such balance for
the respective accounts of such persons, uninvested and without liability for
interest.
15
16. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, the Depositary shall fix a record date (a) for the
determination of the Registered Holders of Receipts who shall be entitled to
receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (b) on or after which each American Depositary Share will represent
the changed number of Shares, subject to the provisions of the Deposit
Agreement. Such record date will, to the extent practicable, be the same record
date as any corresponding record date set by the Company for such purpose.
17. VOTING OF DEPOSITED SECURITIES.
The instructions of Registered Holders shall be obtained with respect to
the voting rights attached to the Shares or other Deposited Securities
represented by their respective American Depositary Shares. Upon receipt of such
instructions, the Depositary shall endeavor insofar as is practicable and
permitted under the applicable provisions of law and of the Articles of
Incorporation governing Deposited Securities of the Company to vote or cause to
be voted the amount of Deposited Securities represented by such American
Depositary Shares in accordance with the instructions.
In the event that the Depositary receives express instructions from
Registered Holders to demand a poll with respect to any matter to be voted on by
Holders, the Depositary may notify the Chairman or a person designated by the
Chairman of such instructions and request the Chairman or such designee to
demand a poll with respect to such matters and the Company agrees that the
Chairman or such designee will demand a poll at the meeting at which such
matters are to be voted on and to vote such Shares in accordance with such
Registered Holder's instructions; provided; however, that prior to any demand of
a poll or request to demand poll by the Depositary upon the terms set forth
herein, the Company shall, at its expense, deliver to the Depositary an opinion
of Korean counsel, reasonably satisfactory to the Depositary. The Depositary
shall not have any obligation to demand a poll or request the demand of a poll
if the Company shall not have delivered to the Depositary the local counsel
opinion set forth in the Deposit Agreement.
16
The Depositary agrees not to, and shall ensure that the Custodian and each
of their nominees does not, vote, attempt to exercise the right to vote, or in
any way make use of, for purposes of establishing a quorum or otherwise, the
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by a Receipt other than in accordance with such instructions
from the Registered Holder, or as provided below. The Depositary may not itself
exercise any voting discretion over any Shares. If the Depositary does not
receive instructions from any Registered Holder with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Registered Holder's Receipts on or before the date established by the
Depositary for such purpose, such Registered Holder shall be deemed, and the
Depositary shall deem such Registered Holder, to have instructed the Depositary
to give discretionary proxy to a person designated by the Company to vote such
Deposited Securities; provided that (x) no such discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information as promptly as practicable
in writing) that (i) the Company does not wish such proxy given, (ii)
substantial opposition exists or (iii) the rights of the holders of Shares will
be adversely affected and (y) the Depositary shall not have any obligation to
give such discretionary proxy to a person designated by the Company if the
Company shall not have delivered to the Depositary any local counsel opinion and
representation letter required to be delivered pursuant to the Deposit
Agreement.
Holders and Beneficial Owners shall not have, and shall not have the right
to instruct the Depositary as to the exercise of, any dissenter's rights
provided to holders of Shares under applicable Korean law.
18. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION,
RECAPITALIZATIONS, ETC.
Upon any change in nominal value, sub-division, cancellation,
consolidation, or any other reclassification of Deposited Securities, or upon
any reduction of capital, 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 a Custodian
in exchange for or in conversion of or replacement or otherwise in respect of
such Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and Receipts shall, subject to the provisions of the Deposit
Agreement, and applicable law, evidence American Depositary Shares representing
the right to receive such additional Deposited Securities. Alternatively, the
Depositary may, with the Company's approval and pursuant to applicable law, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement, the 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 Receipts as in the case of a
stock dividend on the Deposited Securities, or call for the surrender of
outstanding Receipts, to be exchanged for new Receipts specifically describing
such new Deposited Securities. 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 Receipts.
17
Notwithstanding the foregoing, in the event that any security so received
may not be lawfully distributed to some or all Registered 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 reasonably 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 for the account of the Registered Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Registered 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 4.01 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 Registered Holders in
general or any Registered Holder or Registered Holders 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.
19. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company nor any of their
respective directors, officers, employees or agents, assumes any obligation or
shall be subject to any liability (including, without limitation, as to the
Depositary and Custodian, liability with respect to the validity or worth of the
Deposited Securities) under the Deposit Agreement to Registered Holders or
Beneficial Owners of Receipts, other than that each of them agrees to perform
its obligations and duties specifically set forth in the Deposit Agreement
without negligence or bad faith.
Neither the Depositary nor the Company 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 Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expenses and liabilities be furnished as often as may be required,
and the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither the Depositary, the Custodian nor the Company shall be liable for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Registered Holder or Beneficial Owner of a Receipt or any other person believed
by it in good faith to be competent to give such advice or information. The
Depositary, the Custodian and the Company may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
18
Neither the Depositary nor its agents shall be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner or effect of any such vote made either with or without request, or
for not exercising any right to vote, as long as any such action or non-action
is in good faith and in accordance with the terms of the Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
20. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR ADDITIONAL CUSTODIANS.
Subject to the provisions of the next paragraph, the Company may terminate
the appointment of the Depositary under the Deposit Agreement by giving at least
60 days' notice in writing to the Depositary and the Custodian, and the
Depositary may resign as Depositary by giving at least 60 days' notice in
writing to the Company and the Custodian. Within 30 days after the giving of
such notice, notice thereof shall be duly given by the Depositary to the
Registered Holders. In the event a successor depositary has not been appointed
and accepted its appointment within 60 days, the Depositary may terminate the
Deposit Agreement as provided in Section 6.02 thereof.
The Company may appoint a successor depositary hereunder or establish
another deposit facility with another depositary bank if the difference between
the amount of the Depositary's contribution and the amount of fees paid to the
Depositary for the issuance of Receipts and payment of dividends is repaid to
the Depositary. The Company may appoint a successor depositary hereunder or
establish another deposit facility with another depositary bank without such
difference being repaid to the Depositary only if (a) a period of ten years has
passed since the date hereof or (b) a dispute with respect to the services
provided by the Depositary hereunder remains unresolved after a period of three
months from the date such problem was first brought to the attention of the
Depositary by the Company.
The termination of the appointment or the resignation of the Depositary
shall take effect on the date specified in such notice; provided that no such
termination of appointment or resignation shall take effect until the
appointment by the Company of a successor Depositary as hereinafter provided.
19
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company, unless the Company shall desire the termination of the
Deposit Agreement as provided in Section 6.02 thereof, shall use its best
efforts to appoint a successor depositary, which shall be a bank or trust
company having its principal office in the Borough of Manhattan, The City of New
York with effect from the date of termination or resignation specified in such
notice as soon as reasonably possible following notice of such termination or
resignation. Every successor depositary shall 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, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; provided, however, that such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Deposited Securities to such
successor and shall deliver to such successor a list of the Registered Holders
of all outstanding Receipts and such other information relating to Receipts and
Registered Holders thereof as the successor may reasonably request. The
Depositary shall promptly mail notice of the appointment of the successor
depositary to the Registered Holders of Receipts and the Custodian.
Any corporation into or with which the Depositary may be converted, merged
or consolidated shall be the successor of such Depositary without the execution
or filing of any document or any further act.
The Depositary may appoint one or more agents to act as its Custodian under
the Deposit Agreement. The Depositary has initially appointed Korean Securities
Depositary as Custodian and agent of the Depositary for the purpose of the
Deposit Agreement. Any Custodian in acting under the Deposit Agreement shall be
subject at all times and in all respects to the directions of the Depositary,
and shall be responsible solely to it. Any Custodian may resign and be
discharged from its duties by notice of such resignation delivered to the
Depositary at least thirty (30) days prior to the date on which such resignation
is to become effective. If upon the effectiveness of such resignation there
shall be no Custodian acting, the Depositary shall, promptly after receiving
such notice, appoint, subject to the written approval of the Company which shall
not be unreasonably withheld, a substitute custodian that is organized under the
laws of Korea which shall thereafter be a Custodian. Whenever the Depositary in
its discretion determines that it is in the best interest of the Registered
Holders to do so, it may appoint substitute or additional custodian or
custodians, which shall thereafter be one of the Custodians under the Deposit
Agreement subject in each instance to the written approval of the Company. Upon
demand of the Depositary any previous Custodian shall deliver the Deposited
Securities held by it to any other Custodian or such substitute or additional
custodian or custodians as the Depositary shall instruct. Each such substitute
or additional custodian or custodians shall deliver to the Depositary, forthwith
upon its appointment an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary, any Custodian then acting
shall forthwith become, without any further act or writing, the agent of such
successor depositary, and the appointment of such successor depositary shall in
no way impair the authority of any Custodian; provided, however, that the
successor depositary so appointed shall, 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 as agent
of such successor depositary.
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21. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or have the effect of increasing, any fees or
charges payable by the Registered Holders of Receipts (other than the fees of
the Depositary for the execution and delivery or cancellation of Receipts and
taxes on other governmental charges, registration fees and cable, telex or
facsimile transmission, delivery expenses), or which shall otherwise prejudice
any substantial existing right of Registered Holders of Receipts, shall not
become effective as to outstanding Receipts until the expiration of thirty (30)
days after notice of such amendment shall have been given to the Registered
Holders of outstanding Receipts. 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 American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares 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
Registered Holders, shall be deemed not to prejudice any substantial rights of
Registered Holders or Beneficial Owners. Every Registered Holder of an
outstanding Receipt at the time any such amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, 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 Registered Holder of any
Receipt to surrender such Receipt and receive therefore the Deposited Securities
represented thereby except an 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 amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed rules and no losses, costs, expenses, taxes
and charges incurred by the Registered Holders and Beneficial Owners as a result
of such new laws, rules or regulations shall be borne by the Depositary. Every
Registered Holder and Beneficial Owner at the time such new laws, rules and
regulations so become effective shall be deemed, by continuing to hold such
American Depositary Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby.
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
Registered Holders or within any other period of time as required for
compliance.
22. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time, at the direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Registered Holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. If 60 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 5.04 of the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by mailing such notice of termination to
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination.
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During the period beginning on the date of the giving of such notice by the
Depositary to the Registered Holders and ending on the date on which such
termination takes effect, each Registered Holder of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 5.09 and Exhibit B of the Deposit Agreement, and (c) payment of any
applicable taxes or other governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt.
The Company shall only be entitled to terminate the appointment of the
Depositary pursuant to Section 6.02 of the Deposit Agreement where the
Depositary has failed to perform its obligations under this Agreement or has
been negligent in the performance of such obligations. In addition, the
Depositary and the Company agree to consult upon and to attempt to resolve in
good faith any matters (including, without limitation, any disputes) relating to
the services provided by the Depositary to the Company under this Agreement.
If any Receipts shall remain outstanding six months after the date of
termination, the Depositary shall, if practicable, sell the Deposited Securities
then held under the Deposit Agreement by public or private sale as it may deem
appropriate (but shall have no liability with respect to such sale) and, as soon
as reasonably practicable thereafter, deliver the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Registered
Holders of Receipts which have not theretofore been surrendered, such Registered
Holders thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash without interest (after deducting, in each case, the fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Registered Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or other
governmental charges). Upon the termination of the Deposit Agreement, the
Depositary and the Company shall be discharged from all obligations under the
Deposit Agreement except for their respective obligations under Section 5.08 of
the Deposit Agreement and the Company's obligations to the Depositary under
Section 5.09 of the Deposit Agreement.
In the event that the Company terminates the Deposit Agreement, the Company
shall reimburse the Depositary for any portion of any amounts paid to the
Company by the Depositary in connection with the offer of American Depositary
Receipts, which remain outstanding at the time of such termination, such amounts
not having been recovered by the Depositary through issuance and dividend fees
in accordance with the Deposit Agreement.
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