Execution Copy
SHINHAN FINANCIAL GROUP CO., LTD.
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF
Global Depositary Receipts evidencing
Global Depositary Shares
Deposit Agreement
Dated as of September 3, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ...................................................1
Section 1.01. Beneficial Owner ..............................................1
Section 1.02. Commission ....................................................1
Section 1.03. Company .......................................................1
Section 1.04. CSD ...........................................................1
Section 1.05. Custodian .....................................................1
Section 1.06. Deliver; Deposit; Surrender; Transfer; Withdraw ...............2
Section 1.07. Deposit Agreement .............................................2
Section 1.08. Depositary ....................................................2
Section 1.09. Deposited Securities ..........................................2
Section 1.10. Dollars .......................................................2
Section 1.11. Global Depositary Receipts; GDRs ..............................2
Section 1.12. Global Depositary Shares; GDSs ................................2
Section 1.13. Holder ........................................................3
Section 1.14. Korea .........................................................3
Section 1.15. Master GDR ....................................................3
Section 1.16. Nominee .......................................................3
Section 1.17. Principal New York Office .....................................3
Section 1.18. Registrar .....................................................3
Section 1.19. Rule 144A .....................................................3
Section 1.20. Securities Act Legend .........................................3
Section 1.21. Securities Act ................................................4
Section 1.22. Securities Exchange Act .......................................4
Section 1.23. Shares ........................................................4
Xxxxxxx 0.00. Xxxxxx Xxxxxx .................................................4
Section 1.25. Won ...........................................................4
ARTICLE II BOOK-ENTRY SYSTEM, FORM OF GDRs, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF GDRs ........5
Section 2.01. Book-Entry System; Form and Transferability of GDRs ...........5
Section 2.02. Deposit of Shares .............................................8
Section 2.03. Execution and Delivery of GDRs ...............................10
Section 2.04. Transfer of GDRs; Combination and Split-up of GDRs ...........10
Section 2.05. Surrender of GDSs and Withdrawal of Deposited Securities .....11
Section 2.06. Limitations on Execution and Delivery, Transfer, Etc. of
GDRs; Suspension of Delivery, Transfer, Etc ..................12
Section 2.07. Lost GDRs, Etc ...............................................13
Section 2.08. Cancellation and Destruction of Surrendered GDRs .............13
Section 2.09. Maintenance of Records .......................................13
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ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS ...................................13
Section 3.01. Filing Proofs, Certificates and Other Information ............13
Section 3.02. Liability of Holders and Beneficial Owners for Taxes and
Other Charges ................................................14
Section 3.03. Representations and Warranties on Deposit, Transfer and
Surrender and Withdrawal of Shares or GDRs ...................14
Section 3.04. Disclosure of Beneficial Ownership ...........................15
Section 3.05. Ownership Restrictions .......................................15
ARTICLE IV RIGHTS RELATING TO THE DEPOSITED SECURITIES; CERTAIN
OBLIGATIONS OF THE DEPOSITARY ................................15
Section 4.01. Power of Attorney ............................................15
Section 4.02. Cash Distributions; Withholding and Other Taxes and Other
Governmental Charges .........................................16
Section 4.03. Distributions Other Than Cash, Shares or Rights ..............16
Section 4.04. Distributions in Shares ......................................17
Section 4.05. Rights .......................................................17
Section 4.06. Conversion of Foreign Currency ...............................19
Section 4.07. Fixing of Record Date ........................................20
Section 4.08. Voting of Deposited Securities ...............................21
Section 4.09. Changes Affecting Deposited Securities .......................21
Section 4.10. Transmittal by the Depositary of Company Notices, Reports
and Communications ...........................................22
Section 4.11. Withholding ..................................................22
Section 4.12. Available Information ........................................23
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ................23
Section 5.01. Maintenance of Office and Transfer Books by the Registrar ....23
Section 5.02. Lists of GDR Holders .........................................24
Section 5.03. Obligations of the Depositary, the Custodian and the
Company ......................................................24
Section 5.04. Prevention or Delay in Performance by the Depositary or
the Company ..................................................25
Section 5.05. Resignation and Removal of the Depositary; Appointment
of Successor Depositary ......................................25
Section 5.06. Charges of Depositary ........................................26
Section 5.07. The Custodian ................................................27
Section 5.08. Notices and Reports ..........................................28
Section 5.09. Issuance of Additional Shares, Etc ...........................29
Section 5.10. Indemnification ..............................................29
Section 5.11. Certain Rights of the Depositary; Limitations ................30
ARTICLE VI AMENDMENT AND TERMINATION ....................................31
Section 6.01. Amendment ....................................................31
Section 6.02. Termination ..................................................32
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ARTICLE VII MISCELLANEOUS ................................................32
Section 7.01. Counterparts .................................................32
Section 7.02. No Third Party Beneficiaries .................................32
Section 7.03. Severability .................................................32
Section 7.04. Holders and Beneficial Owners as Parties; Binding Effect .....32
Section 7.05. Notices ......................................................33
Section 7.06. Governing Law ................................................33
Section 7.07. Prohibition of Assignment ....................................34
EXHIBIT A DTC Letter of Representations
EXHIBIT B Form of Master GDR
EXHIBIT C-1 Certification and Agreement of Acquirors of GDSs Upon Deposit
of Shares Pursuant to Section 2.03 of the Deposit Agreement
EXHIBIT C-2 Certification and Agreement of Persons Receiving Deposited
Securities Upon Withdrawal Pursuant to Section 2.05 of the
Deposit Agreement
EXHIBIT D Charges of the Depositary
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of September 3, 2001 among SHINHAN
FINANCIAL GROUP CO., LTD., a corporation organized under the laws of the
Republic of Korea (the "Company"), CITIBANK. N.A., a national banking
association organized under the laws of the United States (the "Depositary"),
and all Holders and Beneficial Owners from time to time of the Global Depositary
Receipts issued hereunder and evidencing Global Depositary Shares (as such
capitalized terms are hereinafter defined).
WITNESSETH:
WHEREAS, the Company desires to provide for the deposit of Shares
(as hereinafter defined) from time to time with the Depositary or with the
Custodian (as hereinafter defined), as agent of the Depositary, for the purposes
set forth in this Deposit Agreement, for the creation of Global Depositary
Shares representing the Shares so deposited and for the execution and delivery
of Global Depositary Receipts evidencing the Global Depositary Shares;
NOW, THEREFORE, in consideration of the premises the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.01. Beneficial Owner. The term "Beneficial Owner" shall
mean any person owning any beneficial interest in a GDR issued hereunder but who
is not the Holder of such GDR.
Section 1.02. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
Section 1.01 Company. The term "Company" shall mean Shinhan
Financial Group Co., Ltd., a corporation organized and existing under the laws
of Korea, having its principal registered office at 000, 0-Xx, Xxxxxxxx-Xx,
Xxxxx-Xx, Xxxxx, Xxxxx, and its successors.
Section 1.04. CSD. The term "CSD" shall mean any institution
authorized under Korean law to effect book-entry transfers of securities of
Korean corporations, which may include Korea Securities Depository.
Section 1.05. Custodian. The term "Custodian" shall mean, as of the
date hereof, Korea Securities Depository, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
be appointed by the Depositary pursuant to the terms of Section 5.07, as
substitute custodian, or as additional custodian
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hereunder, as the context shall require, and the term "Custodian" shall mean all
of them, collectively.
Section 1.06. Deliver; Deposit; Surrender; Transfer; Withdraw. The
terms "deliver," "deposit," "transfer" or "withdraw" or their respective noun
forms (including to or by the Custodian), when used with respect to Shares or
other Deposited Securities shall refer, where the context requires, to (i) a
book-entry or entries or an electronic transfer or transfers in or to an
account or accounts maintained by a CSD or (ii) the physical transfer of
certificates representing such securities. The term "deliver" or its noun form,
when used with respect to GDSs shall refer to either (1) an adjustment to the
records of the Depositary with respect to the number of GDSs evidenced by a
Master GDR and a book-entry transfer of such GDSs to the DTC account of the
applicable DTC participant or participants or (ii) the execution and delivery of
one or more GDRs evidencing such GDSs. The term "surrender" or its noun form,
when used with respect to GDSs shall refer to either (i) book-entry transfer of
such GDSs to the DTC account of the Depositary or (ii) delivery of one or more
GDRs evidencing such GDSs to the Depositary (such GDRs or GDSs being properly
endorsed or accompanied by such properly executed instruments of transfer as the
Depositary may require).
Section 1.07. Deposit Agreement. The term "Deposit Agreement" shall
mean this Deposit Agreement as from time to time be amended or supplemented in
accordance with the terms hereof.
Section 1.08. Depositary. The term "Depositary" shall mean Citibank,
N.A., a national banking association organized under the laws of the United
States, and any successor as depositary hereunder.
Section 1.09. Deposited Securities. The term "Deposited Securities"
as of any time shall mean Shares at such time deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held hereunder,
subject in the case of cash to the provisions of Section 4.06.
Section 1.10. Dollars. The term "dollars" shall mean United States
dollars.
Section 1.11. Global Depositary Receipts; GDRs. The term "Global
Depositary Receipts" or "GDRs" shall mean the Global Depositary Receipts issued
hereunder to evidence GDSs, as such Global Depositary Receipts may be amended
from time to time in accordance with the provisions of this Deposit Agreement. A
GDR may evidence any number of GDSs. Where the context requires, the term "GDR"
shall refer to a Master GDR.
Section 1.12. Global Depositary Shares; GDSs. The term "Global
Depositary Shares" and "GDSs" shall mean the rights represented by the GDRs
issued hereunder and the interests in the Deposited Securities represented
thereby. Each Global Depositary Share shall represent two (2) Shares, until
there shall occur a distribution upon Deposited Securities covered by Section
4.04 or a change in Deposited Securities covered by Section 4.09 with respect to
which additional GDSs are not issued and delivered, and thereafter Global
Depositary Shares shall represent the Shares or Deposited Securities specified
in such Sections.
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Section 1.13. Holder. The term "Holder" shall mean the person in
whose name a GDR is registered on the books of the Depositary maintained for
such purpose.
Section 1.14. Korea. The term "Korea" shall mean the Republic of
Korea.
Section 1.15. Master GDR. The term "Master GDR" shall have the
meaning specified in Section 2.01.
Section 1.16. Nominee. The term "Nominee" when used with respect to
the Depositary shall mean such nominee or nominees of the Depositary as it shall
appoint from time to time to act on its behalf in connection with the
performance of its duties and obligations under this Deposit Agreement. The
Nominee shall perform in whatever capacity and to whatever extent under this
Deposit Agreement as the Depositary designates in its appointment of the
Nominee. Such appointment may be evidenced by written agreement, letter,
telegram, telex or facsimile transmission or orally with subsequent confirming
agreement, letter, telegram, telex or facsimile transmission.
Section 1.17. Principal New York Office. The term "Principal New
York Office", when used with respect to the Depositary, shall mean the principal
office of the Depositary in The City of New York at which at any particular time
its depositary receipts business shall be administered, which, at the date of
this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 1.18. Registrar. The term "Registrar" shall mean any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register GDRs and transfers
of GDRs as herein provided, and shall include any co-registrar appointed by the
Depositary, upon the request or with the approval of the Company, for such
purposes.
Section 1.19. Rule 144A. "Rule 144A" shall mean Rule 144A under the
Securities Act.
Section 1.20. Securities Act Legend. The term "Securities Act
Legend" shall mean the following statement:
THIS GLOBAL DEPOSITARY RECEIPT ("GDR"), THE GLOBAL DEPOSITARY SHARES
EVIDENCED HEREBY AND THE SHARES OF COMMON STOCK (THE "SHARES") OF SHINHAN
FINANCIAL GROUP CO., LTD. REPRESENTED THEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, DELIVERED OR OTHERWISE
TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE BENEFICIAL OWNER AND ANY
PERSON ACTING ON ITS BEHALF REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) OUTSIDE
THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS (EACH AS DEFINED IN
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REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH RULE 903 OR 904
OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (4) IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND OTHER JURISDICTIONS. THE BENEFICIAL OWNER OF SHARES RECEIVED
UPON CANCELLATION OF ANY GDR MAY NOT DEPOSIT OR CAUSE TO BE DEPOSITED SUCH
SHARES INTO ANY DEPOSITARY RECEIPT FACILITY ESTABLISHED OR MAINTAINED BY A
DEPOSITARY BANK (INCLUDING ANY SUCH FACILITY MAINTAINED BY THE DEPOSITARY
FOR A GDR), OTHER THAN A RESTRICTED DEPOSITARY RECEIPT FACILITY, SO LONG
AS SUCH SHARES ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE
l44(a)(3) UNDER THE SECURITIES ACT. EACH HOLDER, BY ITS ACCEPTANCE OF THIS
GDR, REPRESENTS AND WARRANTS THAT IT UNDERSTANDS, AND AGREES TO, THE
FOREGOING RESTRICTIONS.
Section 1.21. Securities Act. The term "Securities Act" shall mean
the United States Securities Act of 1933, as from time to time amended.
Section 1.22. Securities Exchange Act. The term "Securities Exchange
Act" shall mean the United States Securities Exchange Act of 1934, as from time
to time amended.
Section 1.23. Shares. The term "Shares" shall mean any shares of the
common stock, par value 5,000 Won per share, of the Company and shall include
evidence of rights to receive Shares; provided, however, that, if there shall
occur any change in par value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4,09,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall thereafter represent the successor securities resulting from such
change in par value, split-up or consolidation or such other reclassification or
such exchange or conversion.
Xxxxxxx 0.00. Xxxxxx Xxxxxx. The term "United States" shall mean the
United States of America, its territories and possessions, any State of the
United States, and the District of Columbia.
Section 1.25, Won. The term "Won" shall mean Korean Won, the lawful
currency of Korea.
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ARTICLE II
BOOK-ENTRY SYSTEM, FORM OF GDRs,
DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF GDRs
Section 2.01. Book-Entry System; Form and Transferability of GDRs.
The Company and the Depositary shall make application to each of The Depository
Trust Company ("DTC"), Euroclear Bank N.V./S.A, as operator of the Euroclear
System ("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream")
for acceptance of the GDSs in its book-entry settlement system. The Company
hereby appoints the Depositary acting through any authorized officer thereof as
its attorney-in-fact with full power to delegate, for purposes of executing any
agreements, certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of the GDSs for DTC eligibility,
including but not limited to the Letter of Representations, in the form attached
hereto as Exhibit A, with such modifications as are agreed by the Company and
the other parties thereto.
So long as the GDSs are eligible for book-entry settlement with DTC,
unless otherwise required by law, the GDSs, whether sold in reliance on Rule
144A or Regulation S, shall be represented by a single restricted master GDR (a
"Master GDR") registered in the name of a nominee of DTC, and held by Citibank,
N.A. or such other entity as is agreed with DTC may hold such Master GDR as
custodian for DTC. The Master GDR will bear a legend relating to the GDSs
evidenced thereby and the Shares represented by such GDSs, whether sold in
reliance on Rule 144A or Regulation S. During any period in which GDSs are
represented by a Master GDR, no person acquiring GDSs shall receive or be
entitled to receive physical delivery of GDRs and beneficial ownership of such
GDSs shall be shown on, and the transfer of such ownership shall be effected
through, records maintained by (i) DTC or (ii) institutions that have accounts
with DTC.
The GDRs shall be typewritten, in the case of a Master GDR, and
otherwise shall be engraved, printed or lithographed on steel-engraved borders,
or in such other form as may be agreed upon by the Company and the Depositary,
and shall be substantially in the form set forth in Exhibit B annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. A Master GDR shall bear such additional legend or legends
as may be required by DTC in order for it to accept the GDSs into its book-entry
settlement system. A Master GDR shall provide that it shall evidence the
aggregate amount of GDSs from time to time indicated in the records of the
Depositary.
Interests in the Master GDR will only be exchanged for definitive
GDRs in registered form in the circumstances described in (i), (ii) or (iii)
below, in whole but not, except in the case of (iii) below, in part. The
Depositary undertakes to deliver definitive GDRs in registered form in exchange
for the Master GDR to Beneficial Owners or to their order in the event that:
(i) DTC or any successor to DTC advises the Company in writing
that it is at any time unwilling or unable to continue as a
depository and a successor depository is not appointed by the
Company within 90 days; or
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(ii) DTC or any successor to DTC ceases to be a
"clearing agency" registered under the Exchange Act or is closed for
business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention
permanently to cease to make its book-entry system available or does
in fact do so and, in each case, no alternative clearing system
satisfactory to the Depositary is available; or
(iii) the Depositary has determined that, on the occasion of
the next payment in respect of the GDRs, the Depositary would be
required to make any deduction or withholding from any payment in
respect of the GDRs which would not be required were the GDRs in
definitive registered form, or Euroclear or Clearstream is closed
for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announces an intention
permanently to cease to make its book-entry system available or does
in fact do so and no alternative clearing system satisfactory to the
Depositary is available; within 60 days of the occurrence of the
relevant event.
Upon the occurrence of the events described in (i) to (ii) above the
Company will use its best efforts to make arrangements with DTC for the exchange
of the Master GDR for individual definitive GDRs. In relation to (iii) above,
any person appearing in the records maintained by DTC, Euroclear or Clearstream,
as the case may be, as entitled to any interest in the Master GDR shall be
entitled to procure the exchange of an appropriate part of the Master GDR for a
definitive GDR for an interest in the Master GDR held by such person in the
above circumstances upon notice to the Holder. Any such exchange shall be at the
expense (including printing costs) of such person.
In the case of individual definitive GDRs issued in exchange for the
Master GDR, the certificates in respect of such individual securities will bear,
and be subject to, such legends as the Company and the Depositary may require in
order to ensure compliance with any applicable laws.
Upon any exchange of a part of the Master GDR for GDRs in definitive
form, any distribution of GDRs pursuant to the terms of the Deposit Agreement or
any change in the number of GDRs represented by the Master GDR following any
deposit and/or withdrawal of Deposited Securities pursuant to Sections 2.02 or
2.05, the relevant details shall be entered by the Registrar on the register
maintained by the Registrar, whereupon the number of deposited Shares
represented by the Master GDR shall be reduced or increased (as the case may be)
accordingly.
So long as the GDRs are listed on the Luxembourg Stock Exchange, if
GDRs are delivered in definitive form, the Company will appoint a registrar and
paying agent in Luxembourg and give notice to Holders of any such appointment in
accordance with this Deposit Agreement.
GDRs shall be executed and dated by the Depositary by the manual
signature of a duly authorized officer of the Depositary, provided, however,
that such signature may be a facsimile if such GDRs are countersigned by the
manual signature of a duly authorized signatory of the Depositary or Registrar
and dated by such signatory. No GDR shall be entitled to any
6
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless such GDR shall have been executed by the Depositary by the manual
signature of a duly authorized officer or countersigned by the manual signature
of a duly authorized signatory of the Depositary or Registrar, and such
execution of any GDR by manual signature shall be conclusive evidence, and the
only evidence, that such GDR has been duly executed and delivered hereunder. The
Depositary shall maintain books in which each GDR so executed and delivered as
hereinafter provided and the transfer of each such GDR shall be registered. GDRs
bearing the facsimile signature of a duly authorized officer of the Depositary
who was at any time a proper officer of the Depositary shall bind the
Depositary, notwithstanding the fact that such officer has ceased to hold such
office prior to the execution of such GDRs and their delivery.
The GDRs may be endorsed with or have incorporated in the text
thereof such legends, recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in order for the GDSs to be tradable on
the NASD's "PORTAL" Market or any other market developed for the trading of
securities pursuant to Rule 144A under the Securities Act.
The GDRs shall bear a CUSIP number or numbers that is different from
the CUSIP number that is or may be assigned to any depositary shares
subsequently issued pursuant to any other arrangement with the Depositary which
are not GDSs issued hereunder.
Subject to any limitations set forth in a GDR or in this Deposit
Agreement, when such GDR is properly endorsed or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice), and upon compliance with the restrictions on
registration of transfer set forth in the legend appearing on the form of GDR
attached hereto as Exhibit B, title to such GDR (and to each GDS evidenced
thereby) shall be transferable by delivery with the same effect as in the case
of a certificated security in accordance with the laws of the State of New York;
provided, however, that the Company and the Depositary, notwithstanding any
notice to the contrary, may deem and treat the Holder of a GDR as the absolute
owner thereof for any purpose, including but not limited to the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under this Deposit Agreement to any bolder of a GDR unless such
holder is the Holder thereof.
In the event certificated GDRs are made available, subject to the
terms and conditions of this Deposit Agreement, such certificated GDRs will be
made available upon receipt by the Depositary at its Principal New York Office
of written instructions from DTC, Clearstream or Euroclear, as the case may be,
on behalf of any person having a beneficial interest in certain GDSs evidenced
by a Master GDR for the purpose of directing the Depositary to execute and
deliver a GDR in certificated form evidencing such GDSs, and upon receipt by the
Depositary at its Principal New York Office of a written order of such person
containing registration instructions and such other information as the
Depositary may require in order to execute and deliver such GDR in certificated
form, and together with certification from such person to the effect that (i)
the exchange of GDRs in certificated form is being made without transfer, or
(ii) that such GDR is being transferred in compliance with the restrictions on
transfer appearing in the legend on the GDR in the form attached hereto as
Exhibit B and upon payment
7
of the fees and expenses of the Depositary, the Depositary shall, if applicable,
follow the procedures set forth in the Letter of Representations attached hereto
as Exhibit A for the purpose of reducing the number of the relevant class of
GDSs evidenced by the Master GDR and, following such reduction, shall execute
and deliver at its Principal New York Office to or upon the order of the person
or persons named in such order a GDR or GDRs registered in the name or names
requested by such person and evidencing in the aggregate the number and class of
GDSs equal to the reduction in the number represented by the Master GDR.
Section 2.02. Deposit of Shares. Subject to the terms and conditions
of this Deposit Agreement and any applicable laws and regulations of Korea,
Shares may be deposited by physical or book-entry delivery thereof to the
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer or endorsement, in form satisfactory to the Custodian, together with
all such certifications, payments (including, without limitation, amounts in
respect of any applicable transfer taxes and the fees and charges of the
Depositary set forth herein) and evidence of such payments as may be required by
the Depositary or the Custodian in accordance with the provisions of this
Deposit Agreement, and, if the Depositary so requires, together with a written
order from or on behalf of such person directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, GDSs representing the Shares so deposited. The Depositary may deliver
GDSs against evidence of rights to receive Shares from the Company, or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares furnished on behalf of the holder thereof. 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 approval has 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. Additionally, if required by the Depositary,
Shares presented for deposit at any time, whether or not the transfer books of,
or held on behalf of, the Company are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which provides for the prompt transfer to the Custodian, the Depositary or their
respective nominees of any dividend, or right to subscribe for additional Shares
or to receive other property which any person in whose name the Shares are or
have been recorded may thereafter receive upon or in respect of such deposited
Shares, or in lieu thereof, such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary. If the Shares are registered in the
name of the person on whose behalf they are presented for deposit, the
Depositary shall also require a proxy or proxies entitling the Custodian to
exercise voting rights in respect of such Shares for any and all purposes until
the Shares so deposited are registered in the name of the Depositary, the
Custodian or any nominee of either of them.
The Company shall notify the Depositary and the Custodian in writing
in the event that Shares, or securities of any class that may from time to time
be deposited with the Custodian pursuant to this Deposit Agreement, or
depositary shares or receipts representing such Shares or other securities,
shall be listed on a national securities exchange registered under Section 6 of
the Securities Exchange Act or quoted in a U.S. automated inter-dealer quotation
system (within the meaning of Rule 144A(d)(3)(i)). In such event,
notwithstanding any other provision of this Deposit Agreement, the Depositary
and the Custodian shall refuse to accept for
8
deposit any securities, unless the person making such deposit shall certify that
the securities to be deposited were not, when issued, of the same class (within
the meaning of Rule 144A(d)(3)(i)), as the securities so listed or quoted.
Each of the Depositary and the Custodian shall refuse to accept
particular Shares for deposit whenever it has been notified, as hereafter
provided, that the Company has restricted transfer of such Shares to comply with
the ownership restrictions referred to in Section 3.05 or that such deposit
would result in any violation of applicable laws, or that such deposit would
cause the total number of Shares deposited to exceed a level from time to time
determined (subject to the last paragraph of this Section 2.02) by the Company.
The Company shall notify to the Depositary and the Custodian in writing with
respect to any such restrictions on transfer of such particular Shares for
deposit hereunder
At the request and risk and expense of any holder of Shares, and for
the account of such holder, the Depositary may receive Shares to be deposited or
evidence that Shares have been delivered, or that irrevocable instructions have
been given to cause delivery of such Shares, to the Custodian, together with the
other orders, instruments and evidence herein specified, for the purpose of
forwarding such orders, instruments and evidence to the Custodian hereunder.
Upon each delivery to a Custodian of Shares to be deposited
hereunder, together with the other documents herein specified, such 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 or such Custodian or its nominee on the
shareholders' register or the books of the CSD or the books of the Custodian, if
applicable. Deposited Securities shall be held by the Depositary or by the
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.
The Nominee may be a Custodian or another Korean entity entitled to
act as nominee under relevant Korean laws and regulations, provided that the
Deposited Securities are kept in a segregated deposit account by the Custodian.
Notwithstanding the foregoing, no Shares shall be accepted for
deposit as contemplated by this Section 2.02 (each such deposit, a "Proposed
Deposit") unless the Company shall have consented to such deposit. The Company
hereby consents to any Proposed Deposit to the extent that, after giving effect
to such Proposed Deposit, the number of Shares on deposit hereunder does not
exceed the number of Shares deposited by the Company upon the establishment of
this GDR facility or in connection with any secondary offering by the Company of
its GDSs (or of any affiliate, if consented to by the Company). The number of
Shares on deposit with the consent of the Company pursuant to this Section 2.02
shall, subject to applicable law, be increased by the number of Shares deposited
by the Company in connection with (x) offerings of rights to acquire additional
GDSs, (y) Share dividends and other free distributions of Shares made available
to Holders in the form of additional GDSs, and (z) a subdivision of Shares, if
any, and, subject to applicable law and the terms of this Deposit Agreement, may
be adjusted as determined from time to time by the Company. The Depositary and
the Custodian shall not accept Shares for Proposed Deposit hereunder if it has
been notified by the Company in writing that the Company blocks such Proposed
Deposit to prevent a violation of applicable
9
Korean laws or regulations or a violation of the Articles of Incorporation of
the Company. The Company shall notify the Depositary and the Custodian with
respect to any such restrictions on transfer of its Shares for deposit
hereunder.
Section 2.03. Execution and Delivery of GDRs. Upon receipt by a
Custodian of a deposit of Shares pursuant to Section 2.02 hereunder together
with the other certifications specified herein and, in addition, 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 such Shares are properly recorded upon the shareholders'
register of the Company (or such agent) maintained for that purpose in the name
of the Depositary or, subject to applicable law, its Nominee or the Custodian or
its nominee or (ii) where such deposit is made by entry in the books of CSD
and/or the Custodian, from CSD or the Custodian, as appropriate, that any
Deposited Securities have been recorded upon the books of CSD or the Custodian,
as appropriate, in the name of the Depositary or, subject to applicable law, its
Nominee, together with the other documents required as above specified, such
Custodian shall notify the Depositary of such deposit and recordation and the
person or persons to whom or upon whose written order GDRs are deliverable in
respect thereof and the class and number of GDSs to be represented thereby. Such
notification shall be made by letter or, at the request and risk and expense of
the person making the deposit, by cable, telex or facsimile transmission.
Upon or prior to the first deposit of Shares to be represented by
GDSs of any class, the Depositary shall execute and deliver the Master GDR for
such class of GDSs.
Upon receiving such notice from such Custodian and the certification
described in the next paragraph, the Depositary or its agent, subject to the
terms and conditions of this Deposit Agreement, shall deliver to or to the
written order of the person or persons named in the Custodians notice the number
and class of GDSs issuable in respect of such deposit, but only upon payment to
the Depositary of all taxes and governmental charges, including any interest and
penalties thereon, and fees payable in connection with such deposit and the
transfer of the deposited Shares. The Depositary will not lend Shares held by it
as Depositary.
The Depositary shall not deliver GDSs to reflect any deposit unless
the person acquiring beneficial ownership of any GDS provides a certification to
the Depositary in substantially the form appearing as Exhibit C-1 hereto.
Section 2.04. Transfer of GDRs; Combination and Split-up of GDRs.
The Depositary, subject to the terms and conditions of this Deposit Agreement
and any GDR, shall, without unreasonable delay, register transfers of any such
GDR on its transfer books, upon any surrender of GDRs by the Holder thereof in
person or by duly authorized attorney, properly endorsed or accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard industry practice and in the case of any GDR in certificated form,
the accurate completion of the certifications appearing on such GDR relating to
compliance with the restrictions on transfer thereof) and duly stamped as may be
required by any applicable law; provided, that the Depositary shall refuse to
register any transfer of any GDR if such registration would cause the total
number of Shares represented by GDSs evidenced by GDRs held by any such Holder
to exceed the number of Shares as determined by the Company in order to comply
with the ownership restrictions referred to in Section 3.05 and notified in
writing, from time to
10
time, to the Depositary. Upon the registration of transfer of a GDR, the
Depositary shall execute a new GDR or GDRs and deliver the same to or upon the
order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a GDR or GDRs for the purpose of effecting a
split-up or combination of such GDR or GDRs, execute and deliver a new GDR or
GDRs in the name of the same Holder for any authorized number of GDSs requested,
evidencing the same class and aggregate number of GDSs as the GDR or GDRs
surrendered. In connection with any split-up or combination pursuant to this
paragraph, the Depositary shall not be obligated to obtain any certification or
endorsement otherwise required by the terms of this Deposit Agreement.
Section 2.05. Surrender of GDSs and Withdrawal of Deposited
Securities. Upon surrender of GDSs for the purpose of withdrawal of the
Deposited Securities represented by the GDSs so surrendered, and upon payment of
the fees of the Depositary for the surrender of GDSs and delivery of Deposited
Securities (as set forth on Exhibit D hereto) and payment of all taxes and
governmental charges and interest and penalties thereon payable in connection
with such surrender, and subject to the terms and conditions of this Deposit
Agreement and the ownership restrictions referred to in Section 3.05 and
applicable laws and regulations of Korea, the Holder of the GDR evidencing such
GDSs acting for itself or on behalf of the Beneficial Owner shall be entitled to
delivery, to him or upon his order, of the Deposited Securities at the time
represented by the GDSs so surrendered; provided, however, that such withdrawals
of Deposited Securities are not permitted until the listing on the Korea Stock
Exchange of the Shares underlying the relevant class of GDSs in the case of GDSs
issued in respect of newly issued Shares. Subject to applicable Korean law,
physical delivery of such Deposited Securities may be made by the delivery of
certificates to an agent in Korea of such Holder or to such Holder or as ordered
by him. Delivery of Deposited Securities shall be made, as hereinafter provided,
without unreasonable delay. In addition, the Depositary will, subject to
applicable Korean laws and regulations, cause any Deposited Securities being
withdrawn by a Holder for physical delivery to an address in the United States
to contain a legend substantially in the form of the Securities Act Legend. No
electronic delivery of Deposited Securities to an account within the United
States will be permitted.
A surrender of GDSs for such purposes may be required by the
Depositary to be properly endorsed or accompanied by properly executed
instruments of transfer. The person requesting withdrawal of Deposited
Securities shall deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn, subject to
applicable Korean laws and regulations, to be either physically delivered
(subject, in the case of physical deliveries into the United States, to the
provisions of this Section) or electronically delivered outside the United
States to or upon the written order of a person or persons designated in such
order subject to applicable Korean laws and regulations. No Deposited Securities
may be delivered in accordance with this Section unless such written order shall
be accompanied by a signed certification in the form appearing as Exhibit C-2
hereto. Upon the receipt of complete written instructions (including the
certification referred to in the preceding sentence) the Depositary shall direct
the Custodian to deliver at the principal office of the Custodian, subject to
Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in such written instructions, the Deposited Securities represented by
the GDSs so surrendered, except that the Depositary may
11
make delivery to such person or persons at the Principal New York Office of the
Depositary of any such Deposited Securities which are in the form of cash.
At the request, risk and expense of any Holder so surrendering GDSs,
and for the account of such Holder, and provided that any applicable tax or
governmental charge or any interest and penalties thereon shall have been paid
in accordance with Section 3.02, the Depositary shall, if permitted by
applicable Korean law, direct the Custodian to forward any cash or other
property (other than rights), and forward a certificate or certificates and
other proper documents of title, if any, for the Deposited Securities
represented by the GDSs so surrendered, to the Depositary for delivery at the
Principal New York Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission. The Depositary shall not accept surrender of GDSs for
the purpose of withdrawal of less than one Share.
Section 2.06. Limitations on Execution and Delivery, Transfer, Etc.
of GDRs; Suspension of Delivery, Transfer, Etc. As a condition precedent to the
delivery of GDSs, registration of transfer, split-up, combination or surrender
of any GDR or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require payment of a sum sufficient to reimburse it for any tax
or other governmental charge, including any interest and penalties thereon, and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, and may, but is not obligated
to, require the production of proof satisfactory to it as to the identity and
genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with this Deposit Agreement,
including but not limited to, in the case of GDRs, a signature guarantee in
accordance with industry practice, and may also require compliance with any laws
or governmental regulations relating to depositary receipts in general or to the
withdrawal of Deposited Securities.
The Depositary may refuse to execute and deliver GDRs, register the
transfer of any GDR, or make any distribution of, or related to, Deposited
Securities until it has received such proofs, certificates and other information
as it or the Company may deem necessary or proper as set forth in Section 3.01.
The Registrar may close the transfer books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
under this Deposit Agreement in accordance with Section 5.01.
After consultation with the Company, the delivery of GDSs, deposits
of Shares generally or of particular Shares, the registration of transfer of
GDRs in particular instances or the registration of transfer of GDRs generally,
or the surrender of GDSs for the purpose of withdrawal of Deposited Securities
may be suspended or refused, during any period when the transfer books of the
Depositary, the shareholders' register of the Company (or the appointed agent of
the Company for the transfer and registration of Shares), the books of the CSD
or the books of the Custodian are closed, or if any such action is deemed
necessary or advisable by the Company, the Depositary, the CSD or the Custodian,
in good faith, at any time or from time to time.
12
Section 2.07. Lost GDRs, Etc. In case any GDR shall be mutilated,
destroyed, lost or stolen, the Depositary shall execute and deliver a new GDR of
like tenor and registered in the same name, in exchange and substitution for
such mutilated GDR upon cancellation thereof or in lieu of and in substitution
for such destroyed, lost or stolen GDR, upon the filing by the Holder thereof
with the Depositary of (a) a request for such exchange, execution and delivery
before the Depositary has notice that the GDR has been acquired by a bona fide
purchaser and (b) in the case of a GDR that has been destroyed, lost or stolen,
a sufficient indemnity bond, and upon satisfying any other reasonable
requirements imposed by the Depositary.
Section 2.08. Cancellation and Destruction of Surrendered GDRs. All
GDRs physically surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled GDRs shall not be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy physically surrendered GDRs so cancelled. Any GDR
evidenced in book-entry form shall be deemed cancelled when the Depositary has
caused the number of GDSs evidenced by the Master GDR to be reduced in
proportion to the number of GDSs evidenced by such surrendered GDR.
Section 2.09. Maintenance of Records. The Depositary agrees to
maintain records of all GDRs surrendered and Deposited Securities withdrawn
under Section 2.05, of substitute GDRs delivered under Section 2.07, and of GDRs
cancelled or destroyed under Section 2.08 and of GDRs executed and delivered in
certificated form under Section 2.01, in keeping with procedures ordinarily
followed by stock transfer agents located in The City of New York.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
Section 3,01. Filing Proofs, Certificates and Other Information. Any
person depositing Shares, any Holder or any Beneficial Owner may be required
from time to time to file with the Depositary or the Custodian such proof of
citizenship, residence, taxpayer status, exchange control approval, payment of
applicable Korean or other taxes or governmental charges, or legal or beneficial
ownership and the nature of such interest, to provide 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 or the books of the Custodian of the Shares presented for deposit or
other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may deem necessary or proper or
to enable the Depositary or the Company to perform its obligations under
applicable law. The Depositary may withhold delivery of GDSs or the distribution
of any dividend or sales proceeds or other distribution of rights or of the
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. Upon request by the Company, the
Depositary shall provide the Company, as promptly as practicable, with copies of
any such proofs and certificates and such written representations and warranties
provided as aforesaid.
13
Section 3.02. Liability of Holders and Beneficial Owners for Taxes
and Other Charges. If any Korean or other tax or governmental charge, including
any interest and penalties thereon, shall become payable with respect to any GDR
or any Deposited Securities represented by the GDSs evidenced by any GDR, such
tax, governmental charge, or interest and penalties thereon, shall be payable by
the Holder of such GDR to the Depositary and any Beneficial Owner of such GDR
shall be liable to the Holder thereof. The Depositary may refuse, and the
Company shall be under no obligation, to effect any registration of transfer of
all or part of such GDR or to execute and deliver any new GDR or GDRs or to
permit any deposit or any withdrawal of Deposited Securities represented by the
GDSs evidenced thereby until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder
thereof any part or all of the Deposited Securities represented by the GDSs
evidenced by such GDR, and may apply such dividends or other distributions or
the proceeds of any such sale in payment of such tax or other governmental
charge, including any interest and penalties thereon, the Holder and the
Beneficial Owners of such GDR remaining liable for any deficiency.
Section 3.03. Representations and Warranties on Deposit, Transfer
and Surrender and Withdrawal of Shares or GDRs. Each person depositing Shares
under this Deposit Agreement shall be deemed thereby to represent and warrant
that such Shares and each certificate therefor are validly issued, outstanding,
fully paid and non-assessable, that any preemptive or similar rights with
respect thereto have been exercised or validly waived and that the person making
such deposit is duly authorized so to do. Such representations and warranties
shall survive the deposit of Shares and the issuance of GDRs or adjustments in
the Depositary's records in respect thereof.
Each person depositing Shares, transferring GDRs or any beneficial
interest therein, or surrendering GDRs or any beneficial interest therein and
withdrawing Shares under the Deposit Agreement shall be deemed thereby to
represent (A) in the case of deposits, that such deposit is made (i) by or on
behalf of a qualified institutional buyer (as defined in Rule 144A). (ii) by or
on behalf of any non-U.S. person (as such term is defined in Regulation S under
the Securities Act) who acquired or is acquiring Shares and is acquiring GDRs
pursuant to and in accordance with Regulation S under the Securities Act or
(iii) otherwise in accordance with Section 2.02 of this Deposit Agreement and
(B) in every such case, to acknowledge that the GDRs, the GDSs and the Shares
have not been and will not be registered under the Securities Act and may not be
offered, sold, pledged or otherwise transferred except in accordance with the
Securities Act Legend and to agree that such person will not offer, sell,
transfer or otherwise dispose of the GDRs or any beneficial interest therein or
the Shares except in accordance with the restrictions set forth in the
Securities Act Legend, and such person shall be deemed thereby to represent and
warrant that such deposit, transfer or surrender and withdrawal complies with
the foregoing restrictions. Absent an effective registration statement under the
Securities Act, an appropriate amendment to this Deposit Agreement shall be
required to permit sales (including those pursuant to Rule 144 under the
Securities Act) of the GDRs, the GDSs or the Shares to persons other than (i)
persons reasonably believed to be qualified institutional buyers (as defined in
Rule 144A) in transactions meeting the requirements of Rule 144A or (ii)
non-U.S. persons pursuant to and in accordance with Regulation S under the
Securities Act. The Company shall not be obligated to agree to such an
amendment. Such representations, warranties and agreements shall survive any
such deposit, transfer, or surrender and withdrawal.
14
Section 3.04. Disclosure of Beneficial Ownership. The Company or the
Depositary may from time to time request Holders or Beneficial Owners or former
Holders or Beneficial Owners to provide information as to the capacity in which
they hold or held GDRs and regarding the identity of any other persons then or
previously interested in such GDRs and the nature of such interest and various
other matters. Each such Holder or Beneficial Owner agrees to provide any such
information reasonably requested by the Company or the Depositary pursuant to
this Section whether or not still a Holder or Beneficial Owner at the time of
such request. The Depositary agrees to use its reasonable efforts to comply with
written instructions received from the Company requesting that the Depositary
forward any such requests to such Holders or Beneficial Owners and to the last
known address, if any, of such former Holders or Beneficial Owners and to
forward to the Company any responses to such requests received by the
Depositary, and to use its reasonable efforts, at the Company's request and
expense, to assist the Company in obtaining such information with respect to the
GDSs evidenced by the Master GDR, provided that nothing herein shall be
interpreted as obligating the Depositary to provide or obtain any such
information not provided to the Depositary by such Holders or Beneficial Owners
or former Holders or Beneficial Owners.
Section 3.05. Ownership Restrictions. The Company may restrict, in
such manner as it deems appropriate, transfers of the Shares where such transfer
might result in ownership of Shares exceeding the limits under the Company's
Articles of Incorporation and applicable law. The Company may also restrict, in
such manner as it deems appropriate, ownership of the GDSs where the total
number of Shares represented by the GDSs beneficially owned by a single Holder
or Beneficial Owner exceeds the limit, if any, on ownership under applicable law
with respect to which the Company may, from time to time, notify the Depositary.
The Company, may, in its sole discretion, instruct the Depositary to take action
with respect to the beneficial ownership of any Holder or Beneficial Owner in
excess of any such legal limit, including but not limited to a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the GDSs beneficially owned by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable law. The Depositary shall not be obligated to ensure compliance with
the ownership restrictions described in this Section 3.05, except to the extent
of taking action in accordance with the instructions received from the Company
as provided in the immediately preceding sentence.
ARTICLE IV
RIGHTS RELATING TO THE DEPOSITED SECURITIES;
CERTAIN OBLIGATIONS OF THE DEPOSITARY
Section 4.01. Power of Attorney. Each Holder and Beneficial Owner,
upon acceptance of a GDR issued in accordance with the terms hereof or any
beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities, including but not limited to those set forth in
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit Agreement.
15
Section 4.02. Cash Distributions; Withholding and Other Taxes and
Other Governmental Charges. Whenever the Custodian shall receive any cash
dividend or other cash distribution by the Company on any Deposited Securities,
the Depositary shall cause the Custodian, subject to applicable Korean laws and
regulations and the provisions of Section 4.06, to convert as promptly as
practicable such dividend or distribution into dollars and remit the amount thus
received to the Depositary which shall, as promptly as practicable, distribute
such amount to the Holders entitled thereto in proportion to the number of GDSs
representing such Deposited Securities held by them respectively, after
deduction or upon payment of the fees and expenses of the Depositary, provided,
however, that in the event that the Company, the Custodian or the Depositary
shall be required to withhold and does withhold from any cash dividend or other
cash distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, including interest or penalties thereon,
the amount distributed to the Holder of GDRs in respect of GDSs representing
such Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent, and any balance not so distributable shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders then outstanding. The Company or its agent or the
Depositary or its agent, as appropriate, will remit to the appropriate
governmental authority or agency in Korea or any other relevant jurisdiction all
amounts withheld and owing to such authority or 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 authorities or agencies. The Depositary or
the Company or their respective agents may file such reports as may be necessary
to obtain benefits under the applicable tax treaties for the Beneficial Owners
of GDSs.
Section 4.03. Distributions Other Than Cash, Shares or Rights.
Whenever the Custodian shall receive any distribution other than cash, Shares or
rights upon any Deposited Securities, the Depositary shall, after consultation
with the Company, and upon receipt of 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
the securities or property so received to be distributed, as of a record date
fixed pursuant to Section 4.07 hereof, to the Holders entitled thereto, after
deduction or upon payment of the fees and expenses of the Depositary, in
proportion to the number of GDSs representing such Deposited Securities held by
them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution subject to any applicable laws
and regulations of Korea, provided, however, that if in the opinion of the
Depositary or its counsel, it cannot cause such securities or property to be
distributed or such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including without
limitation any requirement (i) that the Company, the Custodian or the Depositary
withhold an amount on account of taxes or other governmental charges, and
interest or penalties thereon, or (ii) that such securities must be registered
under the Securities Act or other law in order to be distributed to Holders) the
Depositary deems such distribution not to be feasible, the Depositary may obtain
opinion(s) of United States and Korean counsel, as applicable, as to an
equitable and practicable method of effecting such distribution and may rely on
such advice, which method shall include but not be limited to the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the distribution of the net proceeds of any such sale (net of
16
taxes) by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash; provided, that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto subject to any applicable laws and regulations of Korea, if
such distribution is feasible without withholding for or on account of any taxes
or other governmental charges, including interest or penalties thereon, and
without registration under the Securities Act, in accordance with such equitable
and practicable method as the Depositary shall have adopted.
Section 4.04. Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of Shares,
the Depositary may, with the Company's approval, and shall, if the Company shall
so request, instruct the Company to deposit or cause to deposit such Shares
with the Custodian, register such Shares in the name of the Depositary, and
either (i) distribute to the Holders entitled thereto, as of the record date
fixed pursuant to Section 4.07 hereof in proportion to the number of GDSs
representing such Deposited Securities held by them respectively, additional
GDRs for an aggregate number of GDSs representing the number of Shares received
as such dividend or free distribution, subject to the terms of this Deposit
Agreement, including, without limitation, this Section 4.04 and Sections 2.02.
2.03 and 5.06 hereof, or (ii) reflect on the records of the Depositary such
increase in the number of Shares represented by each outstanding GDS, in either
case after deduction or upon payment of the fees and expenses of the Depositary;
provided, however, that if for any reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes or other
governmental charges or interest and penalties thereon, or that such Shares must
be registered under the Securities Act in order to be distributed to Holders)
the Depositary deems such distribution not to be feasible, the Depositary may,
after consultation with the Company, adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including the
sale (in a public or private sale) of the Shares thus received, or any part
thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash. In lieu of delivering fractional GDSs in any such case, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the net proceeds in dollars, all in the manner and
subject to the conditions described in Section 4.02; provided, however, that no
distribution to Holders pursuant to this Section 4.04 shall be unreasonably
delayed by any actions of the Depositary or the Custodian. If additional GDRs
are not so distributed, each GDS shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
Section 4.05. 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 may, after consultation with the Company, and, if requested by the
Company, shall take action, subject to the terms of this Deposit Agreement, as
follows:
(a) If at the time of the offering of any rights, the Depositary
determines after obtaining opinion(s) of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, in its
discretion that it is lawful and feasible to make such rights available to
all Holders, or certain Holders but not to others, by means of warrants or
otherwise, the Depositary may distribute warrants or other instruments
therefor in such
17
form as it may determine, to the Holders entitled thereto, in proportion
to the number of GDSs representing such Deposited Securities held by them
respectively, or employ such other method as it may deem feasible after
obtaining opinion(s) of United States and Korean counsel, as applicable,
reasonably satisfactory to the Depositary in order to facilitate the
exercise, sale or transfer of rights by such Holders after deduction or
upon payment of the fees and expenses of the Depositary; or
(b) if at the time of the offering of any rights, the Depositary
determines after obtaining opinion(s) of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, in its
discretion that it is not lawful or not feasible to make such rights
available to certain Holders by means of warrants or otherwise, or if the
rights represented by such warrants or such other instruments are not
exercised and appear to be about to lapse, the Depositary, in its
discretion, may sell such rights or such warrants or other instruments at
public or private sale, at such place or places and upon such terms as it
may deem proper, and after deduction or upon payment of the fees and
expenses of the Depositary, and allocate the proceeds of such sales for
the account of the Holders otherwise entitled to such rights, warrants or
other instruments upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange
restrictions, the date of delivery of any GDR or GDRs, or otherwise, and
distribute such net proceeds so allocated to the extent practicable as in
the case of a distribution of cash pursuant to Section 4.02 hereof. If
such sale can be effected only with the approval or license of any
government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem desirable, in good faith; or
(c) if at the time of the offering of any rights, the Depositary
determines upon receipt of opinions of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, that it is
lawful and feasible, the Depositary may, in its discretion, after
deduction or upon payment of the fees and expenses of the Depositary, and
upon provision of any documents, statements or certification that it may
specify, take such action as is necessary for certain of the rights to be
exercised and the securities obtained upon the exercise thereof (or, if
such securities are Shares, GDSs representing such Shares) to be sold
under Regulation S or to be resold under Rule 144A to, or privately placed
with, those Holders or Beneficial Owners to whom such sales or resales may
be made or with whom such private placement may be made without the rights
or the securities to which such rights relate being registered under the
Securities Act.
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company, and after
obtaining opinion(s) of United States and Korean counsel, as applicable,
reasonably satisfactory to the Depositary, have discretion as to the procedure
to be followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the case of a distribution
of cash pursuant to Section 4.02 hereof, or (iii) in allowing such rights to
lapse in the event such rights may not be made available to Holders or be
disposed of and the net proceeds thereof made available to Holders.
18
With respect to (a), (b) and (c) above, the Depositary shall not be
responsible for any failure to determine that it may be lawful or feasible to
make such rights available to Holders in general or any Holder or Holders in
particular. If such sale can be effected only with the approval or license of
any government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem desirable, in good faith.
Notwithstanding anything to the contrary in this Section 4.05, if
registration (under the Securities Act or any other applicable law) of the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not offer such rights to the
Holders (i) unless and until a registration statement under the Securities Act
covering such offering is in effect, or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, satisfactory to the Depositary or other evidence satisfactory to
the Depositary to the effect that the offering and sale of such securities to
the Holders of such GDRs are exempt from or do not require registration under
the provisions of the Securities Act or any other applicable laws, or any
required filing, report, approval or consent has been obtained or granted, as
the case may be.
Nothing in this Deposit Agreement shall create any obligation on the
part of the Company to file a registration statement with respect to such rights
or underlying securities or to endeavor to have such a registration statement
declared effective.
References in this Section 4.05 to "Holders" are to Holders as of
the record date fixed pursuant to Section 4.07.
Section 4.06. Conversion of Foreign Currency. Whenever the Custodian
or the Depositary shall receive currency other than dollars (in this Section
4.06, hereinafter referred to as foreign currency), by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can, in the judgment of the Depositary and pursuant to applicable law,
be converted on a reasonable basis into dollars distributable to the Holders of
the GDRs entitled thereto and the resulting dollars transferred to the United
States, the Depositary shall, subject to applicable laws and regulations and the
provisions of this Deposit Agreement, as promptly as practicable, convert or
cause to be converted, 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 the foreign
currency) shall be distributed, as promptly as practicable, to the 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 and/or instruments upon surrender thereof for
cancellation. Such distribution shall be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion with regard to a particular Holder or
distribution can be effected only with the approval or license of any government
or agency thereof, the Depositary may file such application for approval or
license, if any, as it may deem desirable, in good faith.
19
If at any time the Depositary shall determine that in its reasonable
judgment, after consultation with the Company, any foreign currency received by
the Depositary is not convertible on a reasonable basis into dollars
distributable to the Holders entitled thereto, or if any approval or license of
any government or authority 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 obtained within a
reasonable period as determined by the Depositary, the Depositary may
distribute, pursuant to applicable law, the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency (without
liability for interest) for the respective accounts of, the Holders entitled to
receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
dollars to the extent permissible to the Holders for whom such conversion and
distribution is practicable and may distribute the balance of the foreign
currency received by the Depositary to, or hold such balance for the account of,
the Holders for whom such conversion and distribution is not practicable.
Section 4.07. Fixing of Record Date. 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 GDS, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date after consultation with the
Company (which to the extent practicable shall be the same as the corresponding
record date for Shares set by the Company or, if that is not practicable, shall
be as near as practicable to the corresponding record date for Shares set by the
Company) for the determination of the Holders who shall be entitled to receive
such dividend, distribution or rights, or the net proceeds of the sale thereof
or to give instructions for the exercise of voting rights, if any, at any such
meeting. Subject to the provisions of Sections 4.02 through 4.06 and to the
other terms and conditions of this Deposit Agreement, the Holders on such record
date shall be entitled to receive the amount distributable by the Depositary
with respect to such dividend or other distribution or such rights or the net
proceeds of sale thereof, to exercise the rights of Holders thereunder with
respect to such changed number of Shares represented by each GDS, in proportion
to the number of GDSs held by them respectively.
20
Section 4.08. Voting of Deposited Securities. Holders and Beneficial
Owners of GDRs shall not have the right to exercise or direct the exercise of
voting rights with respect to the Shares represented by the GDSs evidenced
thereby except as herein set forth. Each Holder and Beneficial Owner shall, by
acceptance of a GDR or acquisition of any beneficial interest therein, have
authorized and directed the Depositary to exercise the voting rights with
respect to, or to grant a proxy or power of attorney to vote, the Deposited
Securities as set forth in this Section 4.08. Except as specifically set forth
in this Section 4.08, the Depositary shall not vote or cause to be voted any
Deposited Securities, in no event shall the Depositary exercise, or take any
action, which could be deemed to constitute the exercise of, any discretion with
respect to the voting of any Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or
whenever the Company solicits any proxy or consent from shareholders in lieu of
a shareholders' meeting, the Depositary shall exercise such voting rights in
respect of the Shares in the same manner and in the same proportion as the
holders of Shares not deposited with the Depositary vote their Shares at the
relevant shareholders' meeting or in respect of such solicitation; provided that
the Depositary has received an opinion of the Company's Korean counsel (which
counsel shall be reasonably satisfactory to the Depositary), in form and
substance satisfactory to the Depositary, that such action is in conformity with
all applicable Korean laws and the Company's Articles of Incorporation. If the
Depositary does not receive such opinion, the Depositary will not, and will
ensure that the Custodian does not, vote any Deposited Securities.
Holders and Beneficial Owners shall not have, and shall not have the
right to instruct Depositary as to the exercise of, any dissenter's rights
provided to holders of Shares under applicable Korean law.
Section 4.09. Changes Affecting Deposited Securities. Upon any
change in par value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation of the Company or sale of assets by the Company, any securities
which shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities, and the GDSs shall, subject to the terms and conditions of
this Deposit Agreement and applicable laws and regulations, thenceforth
represent the new Deposited Securities so received, unless additional or new
GDRs are delivered pursuant to the following sentence. In any such case the
Depositary may, with the Company's approval and pursuant to applicable law, and
shall if the Company so requests, subject to the terms of this Deposit Agreement
and receipt of an opinion of the Company's counsel that such distributions are
not in contravention of any applicable laws or regulations, deliver additional
GDSs, as in the case of a stock dividend on the Shares, or call for the
surrender of outstanding GDSs to be exchanged for new GDSs specifically
describing such new Deposited Securities, and the Company agrees to execute such
instruments or documents as may be necessary or appropriate in connection with
the delivery or exchange of GDSs.
Immediately upon the occurrence of any such change, conversion or
exchange covered by this Section in respect of the Deposited Securities, the
Depositary shall give notice thereof in writing, at the Company's expense, to
all Holders.
21
Section 4.10. Transmittal by the Depositary of Company Notices,
Reports and Communications. The Depositary shall make available for inspection
by Holders at its Principal New York Office copies of this Deposit Agreement,
any notices, reports or communications, including any proxy soliciting
materials, received from the Company which are both (a) received by the
Depositary or a Custodian or the nominee of either, as the holder of the
Deposited Securities, and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to Holders
copies of such notices, reports and communications if furnished and requested by
the Company to the Depositary pursuant to Section 5.08.
Section 4.11. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property (including Shares or rights to subscribe therefor or
other securities) or any distribution pursuant to Section 4.09 is subject to any
tax, governmental charge, including interest or penalties thereon, which the
Depositary is obligated to withhold, the Depositary, after consultation with the
Company, may dispose of all or a portion of such property (including Shares and
rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or governmental
charges or interest or penalties thereon, including by public or private sale,
and the Depositary shall (i) distribute the net proceeds of any such sale or the
balance of such property after deduction of such taxes, governmental charges and
any interest and penalties thereon, to the Holders entitled thereto in
proportion to the number of GDSs held by them respectively and, (ii) if
feasible without withholding for or on account of taxes or other governmental
charges, including interest or penalties thereon, without registration of such
Shares or other securities under the Securities Act and otherwise in compliance
with applicable law, distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
The Depositary will forward to the Custodian or to the Company or
their respective agents such information from its records as the Custodian or
the Company may reasonably request to enable the Custodian or the Company or
their respective agents to file necessary reports with governmental agencies,
and the Custodian or the Company or their respective agents may file such
reports as are necessary to obtain benefits under applicable tax treaties for
the Holders or Beneficial Owners. The Depositary and the Company shall have no
obligations or liability to any person if any Holder or Beneficial Owner fails
to provide such information or if such information does not reach relevant tax
authorities in time for any Holder or Beneficial Owner to obtain the benefit of
any tax treaty. The Depositary agrees to distribute any necessary documentation
to Holders to enable Holders or Beneficial Owners to provide the necessary
evidence of tax residence as required by the Korean tax authorities and to
collect such evidence of tax residence and timely forward such evidence of tax
residence to the Company.
Notwithstanding any other provision of this Deposit Agreement,
before making any distribution or other payment on any Deposited Securities, the
Company or its agent shall make such deductions (if any) which, by the laws of
Korea, the Company or its agent is required to make in respect of any income,
capital gains or other taxes and the Company or its agent may also deduct the
amount of any tax or governmental charges payable by the Company or its agent or
for which the Company or its agent might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the
22
Company and its agent shall have no obligation to any Holder or Beneficial Owner
to apply a rate under any treaty or other arrangement between Korea and the
country within which such Holder or Beneficial Owner is resident unless such
Holder or Beneficial Owner has timely provided to the Company or its agent
evidence of the residency of such Holder or Beneficial Owner that is accepted by
the relevant tax authorities of Korea. The Holders and Beneficial Owners shall
indemnify the Depositary, the Company, 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, any governmental
charges and any penalties or interest arising out of any reduced rate of
withholding, pursuant to a double taxation treaty or other tax benefit obtained
for such Holder or Beneficial Owner pursuant to this Section.
Section 4.12. Available Information. To permit compliance with Rule
144A under the Securities Act in connection with sales of the GDSs, the Company
hereby directs the Depositary to deliver copies of the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act to any Holder,
Beneficial Owner or prospective purchaser, if at the time of the request, the
Company is neither subject to Section 13 or Section 15(d) of the Securities
Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) of the
Securities Exchange Act, at the request of such Holder, Beneficial Owner or
prospective purchaser. The Company agrees to reimburse the Depositary for its
reasonable expenses in connection with such deliveries and to provide the
Depositary with such information in such quantities as the Depositary may from
time to time reasonably request.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.01. Maintenance of Office and Transfer Books by the
Registrar. Until termination of this Deposit Agreement in accordance with its
terms, the Registrar shall maintain in the Borough of Manhattan, The City of New
York, facilities for the execution and delivery, registration, registration of
transfers, combination and split-up of GDRs, the surrender of GDRs and the
delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books at its Principal New York Office for
the registration of GDRs and transfers of GDRs which at all reasonable times
shall be open for inspection by Holders and the Company, provided that such
inspection shall not be for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the GDRs.
After consultation with the Company, the Registrar may close the
transfer books with respect to the GDRs, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder or at the written request of the Company.
The Depositary shall act as Registrar or, upon prior consent of the
Company, appoint a Registrar or one or more co-registrars for registration of
GDRs and transfers, combinations and split-ups, and to countersign such GDRs in
accordance with any requirements
23
of any stock exchange or exchanges or automated quotation system or systems in
the United States on which the GDSs may be listed or quoted. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary, upon notice to the Company.
Section 5.02. Lists of GDR Holders. Promptly upon request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of GDSs by all persons in whose names GDRs are
registered on the books of the Depositary. Any other records maintained by the
Depositary, the Registrar, any co-registrar or any co-transfer agent under this
Deposit Agreement shall be made available to the Company upon reasonable
request.
Section 5.03. Obligations of the Depositary, the Custodian and the
Company. Each of the Company and its agents assumes no obligation nor shall it
be subject to any liability under this Deposit Agreement or the GDRs to Holders,
Beneficial Owners or other persons, except that each of the Company and its
agents agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Each of the Depositary and its agents assumes no obligation nor
shall it be subject to any liability under this Deposit Agreement or the GDRs to
Holders, Beneficial Owners or other persons (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that each of the Depositary and its agents agrees to perform its duties
specifically set forth in this Deposit Agreement without negligence or bad
faith. The Depositary shall not be subject to any liability under this Deposit
Agreement to the Company or the Holders or Beneficial Owners for failure to
perform any duties set forth herein if the performance of such duties will
cause, or is likely to cause, in the reasonable, good faith judgment of the
Depositary, a violation of the laws or regulations of Korea.
The Depositary and the Company undertake to perform such duties and
only such duties as are specifically set forth in this Deposit Agreement, and
no implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or the Company. The Depositary undertakes not to issue
any GDSs other than GDSs representing Deposited Securities then on deposit with
the Custodian except as specifically permitted under this Deposit Agreement. The
Depositary also undertakes not to lend Deposited Securities held by it as
Depositary.
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 GDRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required, and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall 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 Beneficial Owner of a GDR,
or any other person believed by it in good faith to be competent to give such
advice or information. Each of the Depositary, its agents, any Custodian and the
Company may rely and shall be protected in
24
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 and its agents shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
Section 5.04. Prevention or Delay in Performance by the Depositary
or the Company. Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Holder, Beneficial Owner or any other person, if by reason of any
provision of any present or future law or regulation of the United States, Korea
or any other country or jurisdiction, or of any other governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Articles of Incorporation of the Company, or by reason of any provision
of any securities issued or distributed by the Company, or any offering or
distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or its agents or the Company or
its agents shall be prevented, delayed or forbidden from, or subject to any
civil or criminal liability on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement it is provided, shall be done or
performed; nor shall the Depositary or its agents or the Company or its agents
incur any liability to any Holder or Beneficial Owner of a GDR or by reason of
any non-performance or delay, caused as aforesaid, in performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Company's
Articles of Incorporation or provisions of or governing any Deposited
Securities; nor shall the Depositary or its agents or the Company or its agents
incur any liability for any consequential or punitive damages for any breach of
the terms of this Deposit Agreement. Where, by the terms of a distribution
pursuant to Sections 4.02, 4.03 or 4.04 of this Deposit Agreement or an offering
and distribution pursuant to Section 4.05 of this Deposit Agreement, or because
of applicable law or for any other reason, such distribution or offering may not
be made available to Holders, or some of them, and the Depositary may not
dispose of such distribution or offering on behalf of such Holders and make the
net proceeds available to such Holders, then the Depositary shall not make such
distribution or offering, and may allow any rights, if applicable, to lapse.
Section 5.05. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder with respect to any or all Deposited Securities by 30 days' prior
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the earlier of (i) the expiration of such 30
days or (ii) upon the appointment by the Company of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 30
days' prior written notice of such removal, which removal shall become effective
upon the appointment by
25
the Company of a successor depositary for such Deposited Securities and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary in respect of the Deposited Securities with respect to which the
Depositary has so resigned or been removed, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Every successor depositary shall 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 in respect of the Deposited Securities with respect to which such
appointment has been made; but such predecessor, nevertheless, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder in respect of the Deposited Securities with respect
to which the Depositary has so resigned or been removed, (ii) duly assign,
transfer and deliver all right, title and interest in the Deposited Securities
to such successor, and (iii) deliver to such successor a list of the Holders of
all outstanding GDRs and such other information relating to GDRs and Holders
thereof as the successor may reasonably request. Any such successor depositary
shall at its own cost promptly mail notice of its appointment to the Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.06. Charges of Depositary. The expenses, fees or charges
of the Depositary and the Registrar, if any, shall be paid by the Company only
as provided herein. Beneficial Owners and Holders beneficially owning GDRs agree
to pay (1) the fees of the Depositary for the receipt of deposits and the
delivery of GDSs pursuant to Section 2.02 or 2.03, the surrender of GDSs and
delivery of Deposited Securities pursuant to Section 2.05, the execution and
delivery of certificated GDRs pursuant to Section 2.01 and the distribution of
dividends and sale or exercise of rights or other corporate action involving
distributions to holders of Shares, each as provided in Exhibit D hereto, (2)
taxes and other governmental charges, (3) such registration fees as may from
time to time be in effect for the registration of transfers of Shares generally
on the shareholders' register of the Company (or any appointed agent of the
Company for transfer and registration of Shares, which may be the Share
Registrar) and accordingly applicable to transfers of Shares to the name of the
Depositary, a Custodian or their nominees or the person who makes a withdrawal,
on the making of deposits or withdrawal pursuant to Section 2.02 or 2.05, (4)
such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in this Deposit Agreement to be at the expense of persons
depositing Shares or Holders, (5) such reasonable expenses as are incurred by
the Depositary in the conversion of foreign currency pursuant to Section 4.06 or
in the distribution or sale of any distributed or offered property or the
exercise of rights or other corporate action involving distributions to
shareholders pursuant to Sections 4.02, 4.03, 4.04, 4.05 or 4.09, and (6) 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) in delivery of Deposited Securities.
26
Any other charges and reasonable expenses of the Depositary
hereunder and the Registrar (if any) (other than the charges and expenses of the
Custodian, the Nominee or any other agent of the Depositary) will be paid by the
Company after consultation and agreement in writing entered into between the
Depositary and the Company as to the amount and nature of such charges and
expenses. Responsibility for payment of such charges may at any time and from
time to time be changed by agreement between the Company and the Depositary.
Unless otherwise agreed, the Depositary shall present its detailed statement for
such expenses and fees or charges to the Company once every three months. The
charges and expenses of the Custodian, the Nominee or any other agent of the
Depositary are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement and, as to any Depositary, the resignation of such Depositary as
described in Section 5.05 for those fees, charges and expenses incurred prior to
the effectiveness of such resignation.
Section 5.07. The Custodian. The Depositary, after consultation with
the Company, may from time to time appoint one or more agents to act for it as
Custodian hereunder. The Depositary has initially appointed Korea Securities
Depository as Custodian and agent of the Depositary for the purpose of this
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares and the other Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. Any Custodian may resign and be
discharged from its duties hereunder with respect to any or all Deposited
Securities by notice of such resignation delivered to the Depositary at least 30
days prior to the date on which such resignation is to become effective. If a
Custodian notifies the Depositary of its intention to resign and there is at the
time no other Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice and after consultation with the Company, appoint a
substitute custodian that is organized under the laws of Korea with respect to
the Deposited Securities with respect to which the Custodian has so resigned
which shall thereafter be the Custodian hereunder. The Depositary, after
consultation with the Company, when it reasonably appears to be in the best
interest of the Holders to do so, may appoint a substitute or an additional
custodian with respect to any or all Deposited Securities, which shall
thereafter be a Custodian hereunder. Forthwith upon its appointment, each such
substitute or additional custodian shall deliver to the Depositary an acceptance
of such appointment and agreement to be bound by the terms hereof. Upon demand
of the Depositary, any Custodian shall deliver such of the Deposited Securities
with respect to which a substitute Custodian has been appointed held by it
together with all records maintained by it as Custodian with respect to such
Deposited Securities as are requested of it to any other Custodian or such
substitute or additional custodian or custodians, and each such substitute or
additional custodian shall deliver to the Depositary forthwith upon its
appointment, an acceptance of such appointment and agreement to be bound by the
terms hereof, satisfactory in form and substance to the Depositary. Immediately
upon any change in Custodian, the Depositary shall at its own expense give
notice thereof in writing to all Holders of GDRs with respect to which such
appointment has been made, each other Custodian and the Company.
27
Upon the appointment of any successor depositary hereunder, any
Custodian then acting hereunder with respect to such Deposited Securities shall
forthwith become, without any further act or writing, the agent hereunder of
such successor depositary and the appointment of such successor depositary with
respect to such Deposited Securities shall in no way impair the authority of
each Custodian hereunder with respect to such Deposited Securities; but the
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority as
agent hereunder of such successor depositary.
Section 5.08. Notices and Reports. On or before the first date on
which the Company gives notice, by publication or otherwise, of meeting of
holders of Shares or other Deposited Securities, any adjourned meeting of such
holders, the taking of any action by such holders other than at a meeting, or
the taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company agrees to
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English' language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities.
The Company, at its own expense, will arrange for the prompt
transmittal to the Depositary of sufficient copies of such notices and any other
reports and communications, which are made generally available by the Company to
holders of its Shares. The Depositary shall arrange, at the request of the
Company and at the Company's expense for prompt mailing of copies thereof to all
Holders or, if the Company so requests, make such notices, reports and
communications (other than the Company's annual report to shareholders and
semi-annual or any other periodic interim report to shareholders) available to
all Holders of GDRs in the same manner as the Company makes them generally
available to holders of Shares, or on such other basis as the Company may advise
the Depositary as being required by any applicable law or regulation or any
requirement of any stock exchange to which the Company may be subject. The
Depositary may, at the Company's expense, obtain English translations of any
notices, reports or communications of the Company, or summaries thereof, which
are not initially furnished to the Depositary in English text. The Company has
delivered to the Depositary and the Custodian a copy of the Articles of
Incorporation governing the Shares, and promptly upon any amendment thereto or
change therein, the Company shall deliver to the Depositary and the Custodian a
copy of such amendment thereto or change therein. The Depositary may rely upon
such copy for all purposes of this Deposit Agreement.
The Company shall also furnish to the Custodian and the Depositary a
summary, in English, of any applicable provisions or proposed provisions of the
Articles of Incorporation of the Company that may be relevant or pertain to such
notice of meeting or be the subject of a vote thereat. The Depositary will, at
the expense of the Company, make such copy, summary and any other notices,
reports and other communications issued by the Company in connection therewith
available for inspection by the Holders of the GDRs evidencing the Shares
governed by such provisions at the Depositary's Principal New York Office, at
the office of the Custodian and at any other designated transfer office.
28
In connection with any distributions on the Deposited Securities or
any sale or transfer of GDRs, the Depositary agrees to forward to the Company,
the purchaser of GDRs or the securities company through which a sale of GDRs is
effected, as the case may be, any information it receives from a Holder or
Beneficial Owner relating to the tax residence of such Holder or Beneficial
Owner, promptly upon receipt thereof and in accordance with the instructions of
such Holder or Beneficial Owner submitting such information.
Additionally, the Company agrees that if, and so long as, the GDSs
are listed on the Luxembourg Stock Exchange and if, and so long as, required by
the rules or regulations of the Luxembourg Stock Exchange, the Company will
publish all notices to holders of Shares in such manner as required by the
Luxembourg Stock Exchange.
Section 5.09. Issuance of Additional Shares, Etc. In the event of
any issuance of additional Shares or other securities (including rights and
convertible or exchangeable securities) as a dividend or distribution to
Holders, or future issuances to Holders for cash of such additional Shares or
such other securities, the Company will promptly furnish to the Depositary a
written opinion from United States counsel for the Company, which counsel shall
be satisfactory to the Depositary, stating whether or not the circumstances of
such issue require a registration statement under the Securities Act to be in
effect prior to the delivery of the GDRs to be issued in connection with such
securities or the issuance of such rights to the Holders entitled thereto. If in
the opinion of such counsel a registration statement is required, such counsel
shall furnish to the Depositary a written opinion as to whether such
registration statement is in effect.
The Company agrees that it will obtain legal advice as to whether
future issuances for cash of (1) additional Shares, (2) rights to subscribe for
Shares or other Deposited Securities, (3) securities convertible into or
exchangeable for Shares, or (4) rights to subscribe for securities convertible
into or exchangeable for Shares, require a registration statement under the
Securities Act covering such securities to be in effect. If, being so advised by
counsel, the Company determines that an issuance of such securities is required
to be registered under the Securities Act, the Company will register such
issuance to the extent necessary, alter the terms of the issuance to avoid the
registration requirements of the Securities Act or direct the Depositary to take
specific measures with respect to the acceptance for deposit of Shares to
prevent such issuance from being made in violation of the registration
requirements of the Securities Act. The Company shall have no obligation to
register any such issuance under the Securities Act.
The Company agrees with the Depositary that neither the Company nor
any company or person controlled by, controlling or under common control with
the Company will at any time deposit any Shares or other Deposited Securities,
either upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and reacquired by the Company or by any controlled
or controlling company, unless such transaction is registered under the
Securities Act or is exempt from registration under the Securities Act as
confirmed by an opinion of United States counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary.
Section 5.10. Indemnification. The Company agrees to indemnify the
Depositary and each Custodian and their respective officers, directors,
employees, agents and affiliates against, and hold each of them harmless from,
any loss, liability, tax, charge or expense
29
of any kind whatsoever (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise (a) in connection with the offer, issuance,
sale, resale, deposit, withdrawal or transfer of GDRs or Shares or other
Deposited Securities, as the case may be, or any offering documents in respect
thereof or (b) out of acts performed or omitted, including but not limited to
any delivery by the Depositary on behalf of the Company of information regarding
the Company, in connection with the provisions of this Deposit Agreement, the
GDRs or other Deposited Securities, as the case may be, as the same may be
amended, modified or supplemented from time to time, in any such case, (i) by
the Depositary, any Custodian or any of their respective directors, employees,
agents or affiliates, except for any loss, liability, tax, charge or expense
arising out of the negligence or bad faith of any of them, or (ii) by the
Company or any of its respective directors, employees, agents or affiliates,
except to the extent that such liability or expense arises out of information
relating to the Depositary or to the Custodian, as the case may be, furnished in
a signed writing to the Company by the Depositary expressly for use in any
document relating to the GDRs evidencing the GDSs.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and affiliates and hold each of them harmless from any
liability or expense (including, without limitation, reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary due to the negligence or bad faith of the Depositary. With respect to
any liability or expense of the Company, its officers, directors or employees
arising out of acts negligently performed or omitted to be performed by the
Custodian, the Depositary agrees to assign to the Company, to the extent of such
liability or expense, such chose in action in respect of such negligent
performance or non-performance as the Depositary may have against the Custodian
pursuant to the terms of the custodian agreement.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.10) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which defense shall be reasonable under the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
The obligations set forth in this Section 5.10 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
Section 5.11. Certain Rights of the Depositary; Limitations. Subject
to the further terms and provisions of this Section 5.11 and Section 3.05 and
applicable Korean law, the Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in GDSs. In its
capacity as Depositary, the Depositary shall not lend Shares or GDRs; provided,
however, that to the extent permitted by Korean law, the Depositary reserves the
right to (i) deliver GDSs prior to the receipt of Shares pursuant to Section
2.02 and (ii) deliver Shares prior to the receipt and cancellation of GDSs
pursuant to Section 2.05, including GDSs which were delivered under (i) above
but for which Shares may not have been received (each such transaction being
referred to as a "Pre-Release"); further provided, however, that the
30
Depositary shall not deliver GDSs prior to the receipt of Shares in the case of
the deposit of Shares by the Company in connection with an offering of GDSs or
pursuant to Sections 4.04 or 4.05, unless requested by the Company and to the
extent permitted by applicable Korean law. The Depositary may receive GDSs in
lieu of Shares under (i) above and receive Shares in lieu of GDSs under (ii)
above. Each such transaction shall be (a) subject to (x) a written
representation by the person or entity (the "Applicant") to whom GDSs or Shares
are delivered that at the time the Depositary delivers such GDSs or Shares, the
Applicant shall either be or represent the beneficial owner of the number of
Shares or GDSs, as the case may be, that are the subject of the Pre-Release, or
(y) such evidence of ownership of Shares or GDSs as the Depositary deems
appropriate, (b) subject to a written agreement by the Applicant that it will
hold such Shares or GDSs in trust for the Depositary until their delivery to the
Depositary or the Custodian, reflect on its records the Depositary as owner of
such Shares or GDSs and deliver such Shares or GDSs upon the Depositary's
request, (c) at all times fully collateralized (marked to market daily) with
cash, United States government securities, or other collateral of comparable
safety and liquidity, (d) terminable by the Depositary on not more than five (5)
business days' notice, and (e) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary intends that the
number of Shares represented by GDSs issued under (i) above and Shares delivered
in accordance with (ii) above will not exceed thirty percent (30%) of the Shares
on deposit with the Depositary or Custodian; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as the Depositary reasonably deems appropriate. The Depositary will also
set limits with respect to the number of GDSs and Shares involved in
transactions to be effected pursuant to this Section 5.11 with any one person on
a case-by-case basis as it deems appropriate.
Collateral provided by an Applicant for GDSs or Shares, but not the
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant). The Depositary may retain for its own account any compensation
received by it in connection with the foregoing, including without limitation
earnings on the collateral. The Company will have no liability whatsoever to the
Depositary or any Holder with respect to any representations, actions or
omissions by the Depositary or any Holder pursuant to this Section 5.11.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the GDRs and any provisions of
this 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 increase any
fees or charges (other than taxes and other governmental charges), or which
shall otherwise prejudice any substantial existing right of Holders, shall not,
however, become effective as to outstanding GDRs until the expiration of 30 days
after notice of such amendment shall have been given to the Holders of
outstanding GDRs. Every Holder and Beneficial Owner of a GDR at the time any
amendment so becomes effective shall be deemed, by continuing to hold such GDR
or to own any beneficial interest therein, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
31
Section 6.02. Termination. The Depositary shall at any time at the
direction of the Company upon 30 days' prior direction and notice from the
Company terminate this Deposit Agreement by mailing notice of such termination
to the Holders of all GDRs then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may terminate this
Deposit Agreement if, at any time 90 days after the Depositary shall have
delivered to the Company a written notice of its election to resign, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.05. If any GDRs shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of GDRs, shall suspend the distribution of dividends to the Holders
thereof, shall not accept deposits of Shares (and shall instruct each Custodian
to act accordingly), and shall not give any further notices or perform any
further acts under this Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell property and rights and convert Deposited Securities into
cash as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for GDRs surrendered to the Depositary. At any time
after the expiration of six (6) months from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold the net proceeds of any such sale, together with any other cash
then held by it hereunder, without liability for interest, for the pro rata
benefit of the Holders which have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement, except to account for such net proceeds and other cash. Upon
the termination of this Deposit Agreement, the Company shall be discharged from
all obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.06 and 5.10 hereof. The obligations of the
Depositary under Section 5.10 hereof shall survive the termination of this
Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, each of which shall be deemed an original and all
of such counterparts shall constitute one and the same agreement.
Section 7.02. No Third Party Beneficiaries. This Deposit Agreement
is for the exclusive benefit of the parties hereto and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person.
Section 7.03. Severability. In case any one or more of the
provisions contained in this Deposit Agreement or in the GDRs should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.04. Holders and Beneficial Owners as Parties; Binding
Effect. The Holders and the Beneficial Owners from time to time shall be parties
to this Deposit Agreement
32
and shall be bound by all of the terms and conditions hereof and of the GDRs by
acceptance thereof or by acquisition of any beneficial interest therein.
Section 7.05. Notices. Any and all notices to be given to the
Company shall be deemed to have been duly given if personally delivered, or sent
by mail (if domestic, first class, if overseas, first class airmail) or air
courier, or by cable or facsimile transmission confirmed by letter sent by mail
or air courier, addressed to Shinhan Financial Group Co., Ltd., 120, 2-Ka.
Taepyung-Ro, ChungKu. Seoul 100-102, Korea. Attention: I.C. Park, Deputy General
Manager / X.X. Xxx, Assistant General Manager (facsimile number: (822)
777-1883), or to any other address which the Company may specify in writing. Any
and all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered, or sent by mail (if domestic, first class, if
overseas, first class airmail) or air courier, or by cable, telex or facsimile
transmission confirmed by letter sent by mail or air courier, addressed to
Citibank, N.A.. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Department (telex number: ITT; 420392; RCA: 235530; facsimile number: (212)
825-5398), or to any other address which the Depositary may specify in writing.
Any and all notices to be given to any Holder of a GDR shall be
deemed to have been duly given if personally delivered, or sent by mail (if
domestic, first class, if overseas, first class airmail) or air courier, or by
cable, telex or facsimile transmission confirmed by letter sent by mail or air
courier, addressed to such Holder at the address of such Holder as it appears on
the transfer books for GDRs of the Depositary, or, if such Holder shall have
filed with the Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address specified in such
request.
Delivery of a notice sent by mail or air courier shall be deemed to
be effective three days (in the case of domestic mail or air courier) or seven
days (in the case of overseas mail) after dispatch, and any notice sent by
cable, telex or facsimile transmission as provided in this Section shall be
deemed to be effective 24 hours after dispatch. The Depositary or the Company
may, however, act upon any cable, telex or facsimile transmission received by it
from the other or from any Holder of a GDR, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
Section 7.06. Governing Law. This Deposit Agreement and the GDRs
shall be interpreted in accordance with and all rights hereunder and thereunder
and provisions hereof and thereof shall be governed by the laws of the State of
New York. 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 this Deposit Agreement and, for such purpose, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
designates, appoints and empowers CT Corporation System, presently located at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as 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 court as described in the preceding sentence.
33
Section 7.07. Prohibition of Assignment. The Depositary may not
assign or otherwise transfer any of its rights or obligations hereunder, except
as otherwise provided herein or with the prior written consent of the Company.
IN WITNESS WHEREOF, SHINHAN FINANCIAL GROUP CO., LTD. and CITIBANK,
N.A. have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of GDRs issued in accordance with the terms
hereof or upon acquisition of any beneficial interest in such GDRs.
SHINHAN FINANCIAL GROUP CO., LTD.
By:
----------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ Un Xxx Xx
----------------------------------
Name: Un Xxx Xx
Title: Vice President
34
SHINHAN FINANCIAL GROUP CO., LTD.
By: /s/ E Xxxx Xx
----------------------------------
Name: Xxxx-Xxxx Xx
Title: Chairman of the Board of
Directors / President &
Chief Executive Officer
CITIBANK, N.A.
By:
----------------------------------
Name:
Title:
35
EXHIBIT A
DTC Letter of Representations
A-1
EXHIBIT B
Number CUSIP 824596 20 9
GLOBAL DEPOSITARY SHARES (EACH
GLOBAL DEPOSITARY SHARE
REPRESENTING TWO (2) SHARES)
(FORM OF MASTER GDR)
MASTER GLOBAL DEPOSITARY RECEIPT
FOR
GLOBAL DEPOSITARY SHARES
representing
DEPOSITED SHARES OF COMMON STOCK,
PAR VALUE WON 5,000 PER SHARE, OF
SHINHAN FINANCIAL GROUP CO, LTD.
(Incorporated in the Republic of Korea)
DTC LEGEND
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the agent
authorized by the issuer for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co., or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to a nominee of DTC or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
SECURITIES ACT LEGEND
THIS GLOBAL DEPOSITARY RECEIPT ("GDR"), THE GLOBAL DEPOSITARY SHARES EVIDENCED
HEREBY AND THE SHARES OF COMMON STOCK (THE "SHARES") OF SHINHAN FINANCIAL
GROUP CO., LTD. REPRESENTED THEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SUCH SECURITIES
MAY NOT BE OFFERED, SOLD, PLEDGED, DELIVERED OR OTHERWISE TRANSFERRED EXCEPT (1)
TO A PERSON WHOM THE BENEFICIAL OWNER AND ANY PERSON ACTING ON ITS BEHALF
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
B-1
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN
U.S. PERSONS (EACH AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (4)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND OTHER JURISDICTIONS THE BENEFICIAL OWNER OF SHARES RECEIVED UPON
CANCELLATION OF ANY GDR MAY NOT DEPOSIT OR CAUSE TO BE DEPOSITED SUCH SHARES
INTO ANY DEPOSITARY RECEIPT FACILITY ESTABLISHED OR MAINTAINED BY A DEPOSITARY
BANK (INCLUDING ANY SUCH FACILITY MAINTAINED BY THE DEPOSITARY FOR A GDR), OTHER
THAN A RESTRICTED DEPOSITARY RECEIPT FACILITY, SO LONG AS SUCH SHARES ARE
"RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144(a)(3) UNDER THE
SECURITIES ACT. EACH HOLDER, BY ITS ACCEPTANCE OF THIS GDR, REPRESENTS AND
WARRANTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS.
CITIBANK. N.A., a national banking association organized and
existing under the laws of the United States of America, as Depositary (the
"Depositary"), hereby certifies that Cede & Co., as nominee of The Depository
Trust Company, is the owner of that number of GDSs indicated on the records of
the Depositary, representing deposited shares of the common stock, par value
5,000 Won per share, or evidence of rights to receive such shares ("Shares"), of
Shinhan Financial Group Co., Ltd., a company incorporated under the laws of the
Republic of Korea (the "Company"). At the date of the Deposit Agreement, each
GDS represents two (2) Shares deposited under the Deposit Agreement (as
hereafter defined) with the Custodian, which at the date of execution of the
Deposit Agreement is Korea Securities Depository.
This Global Depositary Receipt ("GDR") evidences Global Depositary
Shares ("GDSs"') each representing two (2) Shares and is issued pursuant to and
subject to a deposit agreement dated as of September 3, 2001 among the Company,
Citibank, N.A. as depositary and all holders and beneficial owners from time to
time of GDR issued thereunder, each of whom by accepting a GDS or acquiring any
beneficial interest therein agrees to become a party thereto and becomes bound
by all the terms and provisions thereof (such agreement, as amended from time to
time, being hereinafter referred to as the "Deposit Agreement"). Pursuant to the
provisions of the Deposit Agreement, the Depositary has appointed Korea
Securities Depository as Custodian (as defined below) to receive and hold on its
behalf certain Shares and all rights, securities, cash and other property
deposited which are evidenced by the GDRs issued pursuant to the Deposit
Agreement (the "Deposited Securities"). In this Form of Master GDR, references
to the Depositary are to Citibank, N.A. and/or any other depositary which may
from time to time be appointed under the Deposit Agreement, references to the
Custodian are to Korea Securities Depository or any other custodian from time to
time appointed under the Deposit Agreement and references to the "Main Office"
mean, in relation to the Custodian, its office at 00 Xxxxx-xxxx,
Xxxxxxxxxxxx-xx, Xxxxx, 000-000 Xxxxx.
B-2
This Form of Master GDR is subject in all respects to the Deposit
Agreement and applicable laws and regulations including the laws and regulations
of the Republic of Korea ("Korea"). References herein to the "Holder" of any GDR
shall mean the person in whose name a GDR is registered on the books of the
Depositary maintained for such purpose. References herein to the "Beneficial
Owner" of any GDR shall mean any person owning any beneficial interest in a GDR
issued under the Deposit Agreement but who is not the Holder of such GDR. This
Form of Master GDR includes summaries of, and is subject to, the detailed
provisions of the Deposit Agreement. Copies of the Deposit Agreement are
available for inspection at the Principal New York Office (as such terms are
defined in the Deposit Agreement) of the Depositary and at the Main Office of
the Custodian. Holders are deemed to have notice of and be bound by all of the
applicable provisions of the Deposit Agreement. Terms used herein and not
defined shall have the meanings ascribed to them in the Deposit Agreement.
Interests in this Master GDR will only be exchanged for definitive
GDRs in registered form in the circumstances described in (i), (ii) or (iii)
below, in whole but not, except in the case of (iii) below, in part. The
Depositary undertakes to deliver definitive GDRs in registered form in exchange
for the Master GDR to Beneficial Owners or to their order in the event that:
(i) DTC or any successor to DTC advises the Company in writing
that it is at any time unwilling or unable to continue as a
depository and a successor depository is not appointed by the
Company within 90 days; or
(ii) DTC or any successor to DTC ceases to be a "clearing
agency" registered under the Exchange Act or is closed for business
for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention
permanently to cease to make its book-entry system available or does
in fact do so and, in each case, no alternative clearing system
satisfactory to the Depositary is available; or
(iii) the Depositary has determined that, on the occasion of
the next payment in respect of the GDRs, the Depositary would be
required to make any deduction or withholding from any payment in
respect of the GDRs which would not be required were the GDRs in
definitive registered form, or Euroclear or Clearstream is closed
for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announces an intention
permanently to cease to make its book-entry system available or does
in fact do so and no alternative clearing system satisfactory to the
Depositary is available; within 60 days of the occurrence of the
relevant event.
Upon the occurrence of the events described in (i) to (ii) above the
Company will use its best efforts to make arrangements with DTC for the exchange
of the Master GDR for individual definitive GDRs. In relation to (iii) above,
any person appearing in the records maintained by DTC, Euroclear or Clearstream,
as the case may be, as entitled to any interest in the Master GDR shall be
entitled to procure the exchange of an appropriate part of the Master GDR for a
definitive GDR for an interest held by such person in the Master GDR in the
above
B-3
circumstances upon notice to the Holder. Any such exchange shall be at the
expense (including printing costs) of such person.
In the case of individual definitive GDRs issued in exchange for the
Master GDR, the certificates in respect of such individual securities will bear,
and be subject to, such legends as the Company and the Depositary may require in
order to ensure compliance with any applicable laws.
Upon any exchange of a part of the Master GDR for GDRs in definitive
form, any distribution of GDRs pursuant to the Deposit Agreement or any change
in the number of GDRs represented by the Master GDR following any deposit and/or
withdrawal of Deposited Securities pursuant to the Deposit Agreement, the
relevant details shall be entered by the Registrar on the register maintained by
the Registrar, whereupon the number of deposited Shares represented by the
Master GDR shall be reduced or increased (as the case may be) accordingly.
So long as the GDRs are listed on the Luxembourg Stock Exchange, if
GDRs are delivered in definitive form, the Company will appoint a registrar and
paying agent in Luxembourg and give notice to Holders of any such appointment in
accordance with the Deposit Agreement.
The GDRs may be endorsed with or have incorporated in the text
thereof such legends, recitals or changes not inconsistent with the provisions
of the Deposit Agreement as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in order for the GDSs to be tradable on
the NASD's "PORTAL" Market or any other market developed for the trading of
securities pursuant to Rule 144A under the Securities Act.
The GDRs shall bear a CUSIP number or numbers that is different
from the CUSIP number that is or may be assigned to any depositary shares
subsequently issued pursuant to any other arrangement with the Depositary which
are not GDSs issued hereunder.
(1) Deposit of Shares. Subject to the terms and conditions of the
Deposit Agreement and any applicable laws and regulations of Korea, Shares may
be deposited by physical or book-entry delivery thereof to the Custodian
thereunder, accompanied by any appropriate instrument or instruments of transfer
or endorsement, in form satisfactory to the Custodian, together with all such
certifications, payments (including, without limitation, amounts in respect of
any applicable transfer taxes and the fees and charges of the Depositary set
forth in the Deposit Agreement) and evidence of such payments as may be required
by the Depositary or the Custodian in accordance with the provisions of the
Deposit Agreement, and, if the Depositary so requires, together with a written
order from or on behalf of such person directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, GDSs representing the Shares so deposited. The Depositary may deliver
GDSs against evidence of rights to receive Shares from the Company, or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares furnished on behalf of the holder thereof. 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
B-4
necessary approval has 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. Additionally, if required by the Depositary, Shares presented for
deposit at any time, whether or not the transfer books of, or held on behalf of,
the Company are closed, shall also be accompanied by an agreement or assignment,
or other instrument satisfactory to the Depositary, which provides for the
prompt transfer to the Custodian, the Depositary or their respective nominees of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary. If the Shares are registered in the name of the person on
whose behalf they are presented for deposit, the Depositary shall also require a
proxy or proxies entitling the Custodian to exercise voting rights in respect of
such Shares for any and all purposes until the Shares so deposited arc
registered in the name of the Depositary, the Custodian or any nominee of either
of them.
The Company shall notify the Depositary and the Custodian in writing
in the event that Shares, or securities of any class that may from time to time
be deposited with the Custodian pursuant to the Deposit Agreement, or depositary
shares or receipts representing such Shares or other securities, shall be listed
on a national securities exchange registered under Section 6 of the Securities
Exchange Act or quoted in a U.S. automated inter-dealer quotation system (within
the meaning of Rule 144A(d)(3)(i)). In such event, notwithstanding any other
provision of the Deposit Agreement, the Depositary and the Custodian shall
refuse to accept for deposit any securities unless the person making such
deposit shall certify that the securities to be deposited were not, when issued,
of the same class (within the meaning of Rule 144A(d)(3)(i)), as the securities
so listed or quoted.
Each of the Depositary and the Custodian shall refuse to accept
particular Shares for deposit whenever it has been notified, as hereafter
provided that the Company has restricted transfer of such Shares to comply with
the ownership restrictions referred to in Section 3.05 of the Deposit Agreement,
that such deposit would result in any violation of applicable laws, or that such
deposit would cause the total number of Shares deposited to exceed a level from
time to time determined (subject to the last paragraph of Section 2.02 of the
Deposit Agreement) by the Company. The Company shall notify to the Depositary
and the Custodian in writing with respect to any such restrictions on transfer
of such particular Shares for deposit thereunder
At the request and risk and expense of any holder of Shares, and for
the account of such holder, the Depositary may receive Shares to be deposited or
evidence that Shares have been delivered, or that irrevocable instructions have
been given to cause delivery of such Shares, to the Custodian, together with the
other orders, instruments and evidence herein specified, for the purpose of
forwarding such orders, instruments and evidence to the Custodian thereunder.
Upon each delivery to a Custodian of Shares to be deposited under
the Deposit Agreement, together with the other documents herein specified, such
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 or such Custodian or its nominee on the
shareholders' register or the books of the CSD or the books of the Custodian, if
B-5
applicable. Deposited Securities shall be held by the Depositary or by the
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.
The Nominee may be a Custodian or another Korean entity entitled to
act as nominee under relevant Korean laws and regulations, provided that the
Deposited Securities are kept in a segregated deposit account by the Custodian.
(2) Surrender of GDSs and Withdrawal of Deposited Securities. Upon
GDSs for the purpose of withdrawal of the Deposited Securities represented by
the GDSs so surrendered, and upon payment of the fees of the Depositary for the
surrender of GDSs and delivery of Deposited Securities (as set forth on Exhibit
D to the Deposit Agreement) and payment of all taxes and governmental charges
and interest and penalties thereon payable in connection with such surrender,
and subject to the terms and conditions of the Deposit Agreement and the
ownership restrictions referred to in Section 3.05 therein and applicable laws
and regulations of Korea, the Holder of the GDR evidencing such GDSs acting for
itself or on behalf of the Beneficial Owner shall be entitled to delivery, to
him or upon his order, of the Deposited Securities at the time represented by
the GDSs so surrendered; provided, however, that such withdrawals of Deposited
Securities are not permitted until the listing on the Korea Stock Exchange of
the Shares underlying the relevant class of GDSs in the case of GDSs issued in
respect of newly issued Shares. Subject to applicable Korean laws, physical
delivery of such Deposited Securities may be made by the delivery of
certificates to an agent in Korea. of such Holder or to such Holder or as
ordered by him. Delivery of Deposited Securities shall be made, as hereinafter
provided, without unreasonable delay. In addition, the Depositary will, subject
to applicable Korean laws and regulations, cause any Deposited Securities being
withdrawn by a Holder for physical delivery to an address in the United States
to contain a legend substantially in the form of the Securities Act Legend. No
electronic delivery of Deposited Securities to an account within the United
States will be permitted.
A surrender of GDSs for such purposes may be required by the
Depositary to be properly endorsed or accompanied by properly executed
instruments of transfer. The person requesting withdrawal of Deposited
Securities shall deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn, subject to
applicable Korean laws and regulations, to be either physically delivered
(subject, in the case of physical deliveries into the United States, to the
provisions of this paragraph) or electronically delivered outside the United
States to, or upon the written order of a person or persons designated in such
order subject to applicable Korean laws and regulations. No Deposited Securities
may be delivered in accordance with this paragraph unless such written order
shall be accompanied by a signed certification in the form appearing as Exhibit
C-2 to the Deposit Agreement. Upon the receipt of complete written instructions
(including the certification referred to in the preceding sentence) the
Depositary shall direct the Custodian to deliver at the principal office of the
Custodian, subject to Sections 2.06, 3.01 and 3.02 of the Deposit Agreement and
to the other terms and conditions of the Deposit Agreement, to or upon the
written order of the person or persons designated in such written instructions,
the Deposited Securities represented by the GDSs so surrendered, except that the
Depositary may make delivery to such person or persons at the Principal New York
Office of the Depositary of any such Deposited Securities which are in the form
of cash.
B-6
At the request, risk and expense of any Holder so surrendering GDSs,
and for the account of such Holder, and provided that any applicable tax or
governmental charge or any interest and penalties thereon shall have been paid
in accordance with Section 3.02 of the Deposit Agreement, the Depositary shall,
if permitted by applicable Korean law, direct the Custodian to forward any cash
or other property (other than rights), and forward a certificate or certificates
and other proper documents of title, if any, for the Deposited Securities
represented by the GDSs so surrendered, to the Depositary for delivery at the
Principal New York Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission. The Depositary shall not accept surrender of GDSs for
the purpose of withdrawal of less than one Share.
(3) Certain Rights of the Depositary Regarding Pre-Release
Transactions. Subject to the further terms and provisions of Sections 5.11 and
3.05 of the Deposit Agreement and applicable Korean law, the Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in GDSs. In its capacity as Depositary, the Depositary shall not
lend Shares or GDRs; provided, however, that to the extent permitted by Korean
law, the Depositary reserves the right to (i) deliver GDSs prior to the receipt
of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver
Shares prior to the receipt and cancellation of GDSs pursuant to Section 2.05
thereof, including GDSs which were delivered under (i) above but for which
Shares may not have been received (each such transaction being referred to as a
"Pre-Release"); further provided, however, that the Depositary shall not deliver
GDSs prior to the receipt of Shares in the case of the deposit of Shares by the
Company in connection with an offering of GDSs or pursuant to Sections 4.04 or
4.05 of the Deposit Agreement, unless requested by the Company and to the
extent permitted by applicable Korean law. The Depositary may receive GDSs in
lieu of Shares under (i) above and receive Shares in lieu of GDSs under (ii)
above. Each such transaction shall be (a) subject to (x) a Written
representation by the person or entity (the "Applicant") to whom GDSs or Shares
are delivered that, at the time the Depositary delivers such GDSs or Shares, the
Applicant shall either be or represent the beneficial owner of the number of
Shares or GDSs, as the case may be, that are the subject of the Pre-Release, or
(y) such evidence of ownership of Shares or GDSs as the Depositary deems
appropriate, (b) subject to a written agreement by the Applicant that it will
hold such Shares or GDSs in trust for the Depositary until their delivery to the
Depositary or the Custodian, reflect on its records the Depositary as owner of
such Shares or GDSs and deliver such Shares or GDSs upon the Depositary's
request, (c) at all times fully collateralized (marked to market daily) with
cash, United States government securities, or other collateral of comparable
safety and liquidity, (d) terminable by the Depositary on not more than five (5)
business days' notice, and (e) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary intends that
the number of Shares represented by GDSs issued under (i) above and Shares
delivered in accordance with (ii) above will not exceed thirty percent (30%) of
the Shares on deposit with the Depositary or Custodian; provided, however, that
the Depositary reserves the right to change or disregard such limit from time to
time as the Depositary reasonably deems appropriate. The Depositary will also
set limits with respect to the number of GDSs and Shares involved in
transactions to be effected pursuant to Section 5.11 of the Deposit Agreement
with any one person on a case-by-case basis as it deems appropriate.
Collateral provided by an Applicant for GDSs or Shares, but not the
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant). The Depositary
B-7
may retain for its own account any compensation received by it in connection
with the foregoing. including without limitation earnings on the collateral. The
Company will have no liability whatsoever to the Depositary or any Holder with
respect to any representations, actions or omissions by the Depositary or any
Holder pursuant to Section 5.11 of the Deposit Agreement.
(4) Transfers, Split-ups and Combinations. The Depositary, subject
to the terms and conditions of the Deposit Agreement and any GDR, shall, without
unreasonable delay, register transfers of any such GDR on its transfer books,
upon any surrender of GDRs by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice
and in the case of any GDR in certificated form, the accurate completion of the
certifications appearing on such GDR relating to compliance with the
restrictions on transfer thereof) and duly stamped as may be required by any
applicable law, provided, that the Depositary will refuse to register any
transfer of any GDR if such registration would cause the total number of Shares
represented by GDSs evidenced by GDRs held by any such Holder to exceed the
number of Shares as determined by the Company in order to comply with the
ownership restrictions referred to in Section 3.05 of the Deposit Agreement and
notified in writing, from time to time, to the Depositary.
The Depositary, subject to the terms and conditions of the Deposit
Agreement, shall upon surrender of a GDR or GDRs for the purpose of effecting a
split-up or combination of such GDR or GDRs, execute and deliver a new GDR or
GDRs in the name of the same Holder for any authorized number of GDSs requested,
evidencing the same class and aggregate number of GDSs as the GDR or GDRs
surrendered. In connection with any split-up or combination pursuant to this
paragraph, the Depositary shall not be obligated to obtain any certification or
endorsement otherwise required by the terms of the Deposit Agreement. As a
condition precedent to the delivery of the GDSs, registration of transfer,
split-up, combination or surrender of any GDR or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental charge, including
any interest and penalties thereon, and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees as
provided under paragraph (9) of this GDR, and may, but is not obligated to,
require the production of proof satisfactory to it as to the identity and
genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with the Deposit Agreement,
including but not limited to a signature guarantee in accordance with industry
practice, and may also require compliance with any laws or governmental
regulations relating to depositary receipts in general or to the withdrawal of
Deposited Securities.
The Depositary may refuse to execute and to deliver GDRs, register
the transfer of any GDR, or make any distribution of, or related to, Deposited
Securities until it has received such proof certificates and other information
as it or the Company may deem necessary or proper as set forth in the Deposit
Agreement. The Registrar may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties under the Deposit Agreement.
B-8
After consultation with the Company, the delivery of GDSs, deposits
of Shares generally or of particular Shares, the registration of transfer of
GDRs in particular instances, or the registration of transfer of GDRs generally,
or the surrender of GDSs for the purpose of withdrawal of Deposited Securities
may be suspended or refused, during any period when the transfer books of the
Depositary, the shareholders' register of the Company (or the appointed agent of
the Company for the transfer and registration of Shares), the books of the CSD
(as defined in the Deposit Agreement) or the books of the Custodian are closed,
or if any such action is deemed necessary or advisable by the Company, the
Depositary, the CSD or the Custodian, in good faith, at any time or from time to
time in accordance with the Deposit Agreement.
(5) Master GDR; Book-Entry Deposit. So long as the GDSs are eligible
for book-entry settlement with DTC, unless otherwise required by law, the GDSs,
whether sold in reliance on Rule 144A or Regulation S, shall be represented by a
single restricted master GDR (a "Master GDR") registered in the name of a
nominee of DTC, and held by Citibank. N.A. or such other entity as is agreed
with DTC may hold such Master GDR as custodian for DTC. The Master GDR will bear
a legend relating to the GDSs evidenced thereby and the Shares represented by
such GDSs, whether sold in reliance on Rule 144A or Regulation S. During any
period in which GDSs are represented by a Master GDR, no person acquiring GDSs
shall receive or be entitled to receive physical delivery of GDRs and beneficial
ownership of such GDSs shall be shown on, and the transfer of such ownership
shall be effected through, records maintained by (i) DTC or (ii) institutions
that have accounts with DTC.
(6) Liability of Holder or Beneficial Owners for Taxes and Other
Charges. If any Korean or other tax or other governmental charge, including any
interest and penalties thereon, shall become payable with respect to this GDR or
any Deposited Securities represented by the GDSs evidenced hereby, such tax,
governmental charge, or interest and penalties thereon, shall be payable by the
Holder hereof to the Depositary, and any Beneficial Owner hereof shall be liable
to the Holder hereof The Depositary may refuse, and the Company shall be under
no obligation, to effect any registration of transfer of all or part of this GDR
or to execute and deliver any new GDR or GDRs or to permit any deposit or any
withdrawal of Deposited Securities represented by the GDSs evidenced hereby
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the GDSs evidenced hereby, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, including any interest and
penalties thereon, the Holder and the Beneficial Owners hereof remaining liable
for any deficiency.
(7) Warranties by Depositor. Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are validly issued, outstanding, fully paid
and non-assessable, that any preemptive or similar rights with respect thereto
have been exercised or validly waived and that the person making such deposit is
duly authorized so to do. Such representations and warranties shall survive the
deposit of Shares and issuance of GDRs or adjustments in the Depositary's
records in respect thereof.
(8) Additional Warranties. Each person depositing Shares;
transferring GDRs or any beneficial interest therein, or surrendering GDRs or
any beneficial interest therein and
B-9
withdrawing Shares under the Deposit Agreement shall be deemed thereby to
represent (A) in the case of deposits, that such deposit is made (i) by or on
behalf of a qualified institutional buyer (as defined in Rule 144A), (ii) by or
on behalf of any non-U.S. person (as such term is defined in Regulation S under
the Securities Act) who acquired or is acquiring Shares and is acquiring GDRs
pursuant to and in accordance with Regulation S under the Securities Act or
(iii) otherwise in accordance with Section 2.02 of the Deposit Agreement and
(B) in every such case, to acknowledge that the GDRs, the GDSs and the Shares
have not been and will not be registered under the Securities Act and may not be
offered, sold, pledged or otherwise transferred except in accordance with the
Securities Act Legend and to agree that such person will not offer, sell,
transfer or otherwise dispose of the GDRs or any beneficial interest therein or
the Shares except in accordance with the restrictions set forth in the
Securities Act Legend and such person shall be deemed thereby to represent and
warrant that such deposit, transfer or surrender and withdrawal complies with
the foregoing restrictions. Absent an effective registration statement under the
Securities Act, an appropriate amendment to the Deposit Agreement shall be
required to permit sales (including those pursuant to Rule 144 under the
Securities Act) of the GDRs, the GDSs or the Shares to persons other than (i)
persons reasonably believed to be qualified institutional buyers (as defined in
Rule 144A) in transactions meeting the requirements of Rule 144A or (ii)
non-U.S. persons pursuant to and in accordance with Regulation S under the
Securities Act. The Company shall not be obligated to agree to such an
amendment. Such representations, warranties and agreements shall survive any
such deposit, transfer, or surrender and withdrawal.
(9) Charges of Depositary. The expenses, fees or charges of the
Depositary and the Registrar, if any, shall be paid by the Company only as
provided in the Deposit Agreement. Beneficial Owners and Holders beneficially
owning GDRs agree to pay (1) the fees of the Depositary for the receipt of
deposits and the delivery of GDSs pursuant to Section 2.02 or 2.03 of the
Deposit Agreement, the surrender of GDSs and delivery of Deposited Securities
pursuant to Section 2.05 thereof, the execution and delivery of certificated
GDRs pursuant to Section 2.01 thereof and the distribution of dividends and sale
or exercise of rights or other corporate action involving distributions to
holders of Shares, each as provided on Exhibit D attached thereto, (2) taxes and
other governmental charges, (3) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the
shareholders' register of the Company (or any appointed agent of the Company for
transfer and registration of Shares, which may be the Share Registrar) and
accordingly applicable to transfers of Shares to the name of the Depositary, a
Custodian or their nominees or the person who makes a withdrawal, on the making
of deposits or withdrawal pursuant to Section 2.02 or 2.05 of the Deposit
Agreement, (4) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing Shares or Holders, (5) such reasonable expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.06 thereof or in the distribution or sale of any distributed or
offered property or the exercise of rights or other corporate action involving
distributions to shareholders pursuant to Sections 4.02, 4.03, 4.04, 4.05 or
4.09 of the Deposit Agreement, and (6) 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)
in delivery of Deposited Securities.
Any other charges and reasonable expenses of the Depositary under
the Deposit Agreement and the Registrar (if any) (other than the charges and
expenses of the Custodian, the
B-10
Nominee or any other agent of the Depositary) will be paid by the Company after
consultation and agreement in writing entered into between the Depositary and
the Company as to the amount and nature of such charges and expenses.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its detailed statement for such expenses
and fees or charges to the Company once every three (3) months. The charges and
expenses of the Custodian, the Nominee or any other agent of the Depositary are
for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement and, as to any Depositary, the resignation of such Depositary as
described in Section 5.06 of the Deposit Agreement for those fees, charges and
expenses incurred prior to the effectiveness of such resignation.
(10) Title to GDRs. Subject to any limitations set forth in this GDR
or in the Deposit Agreement, when such GDR is properly endorsed or accompanied
by proper instruments of transfer (including signature guarantees in accordance
with standard industry practice), and upon compliance with the restrictions on
registration of transfer set forth in the legend contained herein, title to such
GDR (and to each GDS evidenced hereby) shall be transferable by delivery with
the same effect as in the case of a certificated security in accordance with the
laws of the State of New York; provided, however that the Company and the
Depositary, notwithstanding any notice to the contrary, may deem and treat the
Holder of a GDR as the absolute owner hereof for any purpose, including but not
limited to the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement and neither the Depositary nor the Company shall have any obligation
or be subject to any liability under the Deposit Agreement to any holder of a
GDR unless such holder is the Holder hereof. In the event certificated GDRs are
made available, subject to the terms and conditions of the Deposit Agreement,
such certificated GDRs will be made available upon receipt by the Depositary at
its Principal New York Office of written instructions from DTC, Clearstream or
Euroclear, as the case may be, on behalf of any person having a beneficial
interest in certain GDSs evidenced by a Master GDR for the purpose of directing
the Depositary to execute and deliver a GDR in certificated form evidencing such
GDSs, and upon receipt by the Depositary at its Principal New York Office of a
written order of such person containing registration instructions and such other
information as the Depositary may require in order to execute and deliver such
GDR in certificated form, and together with certification from such person to
the effect that (i) the exchange of GDRs in certificated form is being made
without transfer, or (ii) that such GDR is being transferred in compliance with
the restrictions on transfer appearing in the legend herein and upon payment of
the fees and expenses of the Depositary, the Depositary shall, if applicable,
follow the procedures set forth in the Letter of Representations attached as
Exhibit A to the Deposit Agreement for the purpose of reducing the number of the
relevant class of GDSs evidenced by the Master GDR and, following such
reduction, shall execute and deliver at its Principal New York Office to or upon
the order of the person or persons named in such order a GDR or GDRs registered
in the name or names requested by such person and evidencing in the aggregate
the number and class of GDSs equal to the reduction in the number represented by
the Master GDR.
B-11
(11) Validity of GDR. GDRs shall be executed and dated by the
Depositary by the manual signature of a duly authorized officer of the
Depositary, provided, however, that such signature may be a facsimile if such
GDRs are countersigned by the manual signature of a duly authorized signatory of
the Depositary or Registrar and dated by such signatory. No GDR shall be
entitled to any benefits under the Deposit Agreement or be valid or obligatory
for any purpose, unless such GDR shall have been executed by the Depositary by
the manual signature of a duly authorized officer or countersigned by the manual
signature of a duly authorized signatory of the Depositary or Registrar, and
such execution of any GDR by manual signature shall be conclusive evidence, and
the only evidence, that such GDR has been duly executed and delivered hereunder.
The Depositary shall maintain books in which each GDR so executed and delivered
as hereinafter provided and the transfer of each such GDR shall be registered.
GDRs bearing the facsimile signature of a duly authorized officer of the
Depositary who was at any time a proper officer of the Depositary shall bind the
Depositary, notwithstanding the fact that such officer has ceased to hold such
office prior to the execution of such GDRs and their delivery.
(12) Disclosure of Beneficial Ownership, Other Information and
Ownership Restrictions. The Company or the Depositary may from time to time
request Holders or Beneficial Owners or former Holders or Beneficial Owners to
provide information as to the capacity in which they hold or held GDRs and
regarding the identity of any other persons then or previously interested in
such GDRs and the nature of such interest and various other matters. Each such
Holder or Beneficial Owner agrees to provide any such information reasonably
requested by the Company or the Depositary pursuant to the Deposit Agreement
whether or not still a Holder or Beneficial Owner at the time of such request.
The Depositary agrees to use its reasonable efforts to comply with written
instructions received from the Company requesting that the Depositary forward
any such requests to such Holders or Beneficial Owners and to the last known
address, if any, of such former Holders or Beneficial Owners and to forward to
the Company any responses to such requests received by the Depositary, and to
use its reasonable efforts, at the Company's request and expense, to assist the
Company in obtaining such information with respect to the GDSs evidenced by the
Master GDR, provided that nothing herein shall be interpreted as obligating the
Depositary to provide or obtain any such information not provided to the
Depositary by such Holders or Beneficial Owners or former Holders or Beneficial
Owners. The Company may restrict, in such manner as it deems appropriate,
transfers of the Shares where such transfer might result in ownership of Shares
exceeding the limits under the Company's Articles of Incorporation and
applicable law. The Company may also restrict, in such manner as it deems
appropriate, ownership of the GDSs where the total number of Shares represented
by the GDSs beneficially owned by a single Holder or Beneficial Owner exceeds
the limit, if any, on ownership under applicable law with respect to which the
Company may, from time to time, notify the Depositary. The Company, may, in its
sole discretion, instruct the Depositary to take action with respect to the
beneficial ownership of any Holder or Beneficial Owner in excess of any such
legal limit, including but not limited to a mandatory sale or disposition on
behalf of a Holder or Beneficial Owner of the Shares represented by the GDSs
beneficially owned by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law. The Depositary shall not be obligated to ensure compliance with the
ownership restrictions described in Section 3.05 of the Deposit Agreement except
to the extent of taking action in accordance with the instructions received from
the Company as provided in the immediately preceding sentence.
B-12
(13) Available Information. To permit compliance with Rule 144A
under the Securities Act in connection with sales of the GDSs, the Company
hereby directs the Depositary to deliver copies of the information requited to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act to any
Holder, Beneficial Owner or prospective purchaser, if at the time of the
request, the Company is neither subject to Section 13 or Section 15(d) of the
Securities Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) of
the Securities Exchange Act, at the request of such Holder, Beneficial Owner or
prospective purchaser. The Company agrees to reimburse the Depositary for its
reasonable expenses in connection with such deliveries and to provide the
Depositary with such information in such quantities as the Depositary may from
time to time reasonably request.
(14) Dividends and Distributions; Rights. Whenever the Custodian
shall receive any cash dividend or other cash distribution by the Company on any
Deposited Securities, the Depositary shall cause the Custodian, subject to
applicable Korean laws and regulations and the provisions of Section 4.06 of the
Deposit Agreement, to convert as promptly as practicable such dividend or
distribution into dollars and remit the amount thus received to the Depositary
which shall, as promptly as practicable, distribute such amount to the Holders
entitled thereto in proportion to the number of GDSs representing such Deposited
Securities held by them respectively, after deduction or upon payment of the
fees and expenses of the Depositary; provided, however, that in the event that
the Company, the Custodian or the Depositary shall be required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes or other governmental
charges, including interest or penalties thereon, the amount distributed to the
Holder of GDRs in respect of GDSs representing such Deposited Securities shall
be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders then
outstanding. The Company or its agent or the Depositary or its agent, as
appropriate, will remit to the appropriate governmental authority or agency in
Korea or any other relevant jurisdiction all amounts withheld and owing to such
authority or 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
authorities or agencies. The Depositary or the Company or their respective
agents may file such reports as may be necessary to obtain benefits under the
applicable tax treaties for the Beneficial Owners of GDSs.
Whenever the Custodian shall receive any distribution other than
cash, Shares or rights upon any Deposited Securities, the Depositary shall,
after consultation with the Company, and upon receipt of 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 the securities or property so received to be distributed,
as of a record date fixed pursuant to Section 4.07 of the Deposit Agreement, to
the Holders entitled thereto, after deduction or upon payment of the fees and
expenses of the Depositary, in proportion to the number of GDSs representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution subject to any applicable laws and regulations of Korea, provided,
however, that if in the opinion of the Depositary or its counsel, it cannot
cause such securities or property to be
B-13
distributed or such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including without
limitation any requirement (i) that the Company, the Custodian or the Depositary
withhold an amount on account of taxes or other governmental charges, and
interest or penalties thereon, or (ii) that such securities must be registered
under the Securities Act or other law in order to be distributed to Holders) the
Depositary deems such distribution not to be feasible, the Depositary may obtain
opinion(s) of United States and Korean counsel, as applicable, as to an
equitable and practicable method of effecting such distribution and may rely on
such advice, which method shall include but not be limited to the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the distribution of the net proceeds of any such sale (net of
taxes) by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash; provided, that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto subject to any applicable laws and regulations of Korea, if
such distribution is feasible without withholding for or on account of any taxes
or other governmental charges, including interest or penalties thereon, and
without registration under the Securities Act, in accordance with such equitable
and practicable method as the Depositary shall have adopted.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of Shares, the Depositary may, with the
Company's approval, and shall, if the Company shall so request, instruct the
Company to deposit or cause to deposit such Shares with the Custodian, register
such Shares in the name of the Depositary, and either (i) distribute to the
Holders entitled thereto, as of the record date fixed pursuant to Section 4.07
of the Deposit Agreement, in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, additional GDRs for an aggregate
number of GDSs representing the number of Shares received as such dividend or
free distribution, subject to the terms of the Deposit Agreement, including,
without limitation, Sections 4.04, 2.02, 2.03 and 5.06 thereof, or (ii) reflect
on the records of the Depositary such increase in the number of Shares
represented by each outstanding GDS, in either case after deduction or upon
payment of the fees and expenses of the Depositary; provided, however, that if
for any reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or other governmental charges or interest
and penalties thereon, or that such Shares must be registered under the
Securities Act in order to be distributed to Holders) the Depositary deems such
distribution not to be feasible, the Depositary may, after consultation with the
Company, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the Shares thus received, or any part thereof, and the net proceeds of
any such sale shall be distributed by the Depositary to the Holders entitled
thereto as in the case of a distribution received in cash. In lieu of delivering
fractional GDSs in any such case, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
in dollars, all in the manner and subject to the conditions described in Section
4.02 of the Deposit Agreement; provided, however, that no distribution to
Holders pursuant to Section 4.04 thereof shall be unreasonably delayed by any
actions of the Depositary or the Custodian. If additional GDRs are not so
distributed, each GDS shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
B-14
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 may, after consultation
with the Company, and, if requested by the Company, shall take action, subject
to the terms of the Deposit Agreement, as follows:
(a) If at the time of the offering of any rights the Depositary
determines after obtaining opinion(s) of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, in its
discretion that it is lawful and feasible to make such rights available to
all Holders, or certain Holders but not to others, by means of warrants or
otherwise, the Depositary may distribute warrants or other instruments
therefor in such form as it may determine, to the Holders entitled
thereto, in proportion to the number of GDSs representing such Deposited
Securities held by them respectively, or employ such other method as it
may deem feasible after obtaining opinion(s) of United States and Korean
counsel, as applicable, reasonably satisfactory to the Depositary in order
to facilitate the exercise, sale or transfer of rights by such Holders
after deduction or upon payment of the fees and expenses of the
Depositary; or
(b) if at the time of the offering of any rights, the Depositary
determines after obtaining opinion(s) of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, in its
discretion that it is not lawful or not feasible to make such rights
available to certain Holders by means of warrants or otherwise, or if the
rights represented by such warrants or such other instruments are not
exercised and appear to be about to lapse, the Depositary, in its
discretion may sell such rights or such warrants or other instruments at
public or private sale, at such place or places and upon such terms as it
may deem proper, and after deduction or upon payment of the fees and
expenses of the Depositary, and allocate the proceeds of such sales for
the account of the Holders otherwise entitled to such rights, warrants or
other instruments upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange
restrictions, the date of delivery of any GDR or GDRs, or otherwise, and
distribute such net proceeds so allocated to the extent practicable as in
the case of a distribution of cash pursuant to Section 4.02 of the Deposit
Agreement. If such sale can be effected only with the approval or license
of any government or agency thereof, the Depositary may file such
application for approval or license, if any, as it may deem desirable, in
good faith; or
(c) if at the time of the offering of any rights the Depositary
determines upon receipt of opinions of United States and Korean counsel,
as applicable, reasonably satisfactory to the Depositary, that it is
lawful and feasible, the Depositary may, in its discretion, after
deduction or upon payment of the fees and expenses of the Depositary, and
upon provision of any documents, statements or certification that it may
specify, take such action as is necessary for certain of the rights to be
exercised and the securities obtained upon the exercise thereof (or, if
such securities are Shares, GDSs representing such Shares) to be sold
under Regulation S or to be resold under Rule 144A to, or privately placed
with, those Holders or Beneficial Owners to whom such sales or resales may
be made or with whom such private placement may be made without the rights
or the securities to which such rights relate being registered under the
Securities Act.
B-15
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company, and after
obtaining opinion(s) of United States and Korean counsel, as applicable,
reasonably satisfactory to the Depositary, have discretion as to the procedure
to be followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the case of a distribution
of cash pursuant to Section 4.02 of the Deposit Agreement, or (iii) in allowing
such rights to lapse in the event such rights may not be made available to
Holders or be disposed of and the net proceeds thereof made available to
Holders.
With respect to (a), (b) and (c) above, the Depositary shall not be
responsible for any failure to determine that it may be lawful or feasible to
make such rights available to Holders in general or any Holder or Holders in
particular. If such sale can be effected only with the approval or license of
any government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem desirable, in good faith.
Notwithstanding anything to the contrary in this paragraph (14), if
registration (under the Securities Act or any other applicable law) of the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not offer such rights to the
Holders (i) unless and until a registration statement under the Securities Act
covering such offering is in effect, or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, satisfactory to the Depositary or other evidence satisfactory to
the Depositary to the effect that the offering and sale of such securities to
the Holders of such Receipts are exempt from or do not require registration
under the provisions of the Securities Act or any other applicable laws, or any
required filing, report, approval or consent has been obtained or granted, as
the case may be.
Nothing in the Deposit Agreement shall create any obligation on the
part of the Company to file a registration statement with respect to such rights
or underlying securities or to endeavor to have such a registration statement
declared effective. References in this paragraph (14) to "Holders" are to
Holders as of the record date fixed pursuant to Section 4.07 of the Deposit
Agreement.
(15) 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 GDS, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date after consultation with the
Company (which to the extent practicable shall be the same as the corresponding
record date for Shares set by the Company or, if that is not practicable, shall
be as near as practicable to the corresponding record date for Shares set by the
Company) for the determination of the Holders who shall be entitled to receive
such dividend, distribution or rights, or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights, if any, at any such
meeting. Subject to the provisions of Sections 4.02 through 4.06 of the Deposit
Agreement and to the other terms and
B-16
conditions thereof, the Holders on such record date shall be entitled to receive
the amount distributable by the Depositary with respect to such dividend or
other distribution or such rights or the net proceeds of sale thereof, to
exercise the rights of Holders thereunder with respect to such changed number of
Shares represented by each GDS, in proportion to the number of GDSs held by them
respectively.
(16) Voting of Deposited Securities. Holders and Beneficial Owners
of GDRs shall not have the right to exercise or direct the exercise of voting
rights with respect to the Shares represented by the GDSs evidenced thereby
except as set forth in the Deposit Agreement. Each Holder and Beneficial Owner
shall, by acceptance of a GDR or acquisition of any beneficial interest therein,
have authorized and directed the Depositary to exercise the voting rights with
respect to, or to grant a proxy or power of attorney to vote, the Deposited
Securities as set forth in Section 4.08 of the Deposit Agreement. Except as
specifically set forth therein, the Depositary shall not vote or cause to be
voted any Deposited Securities. In no event shall the Depositary exercise, or
take any action, which could be deemed to constitute the exercise of, any
discretion with respect to the voting of any Deposited Securities.
Whenever the Company gives notice of a meeting of shareholders or
whenever the Company solicits any proxy or consent from shareholders in lieu of
a shareholders' meeting, the Depositary shall exercise such voting rights in
respect of the Shares in the same manner and in the same proportion as the
holders of Shares not deposited with the Depositary vote their Shares at the
relevant shareholders' meeting or in respect of such solicitation provided that
the Depositary has received an opinion of the Company's Korean counsel (which
counsel shall be reasonably satisfactory to the Depositary), in form and
substance satisfactory to the Depositary, that such action is in conformity with
all applicable Korean laws and the Company's Articles of Incorporation. If the
Depositary does not receive such opinion, the Depositary will not, and will
ensure that the Custodian does not, vote any Deposited Securities.
Holders and Beneficial Owners shall not have, and shall not have the
right to instruct Depositary as to the exercise of, any dissenter's rights
provided to holders of Shares under applicable Korean law.
(17) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation of the Company or sale of assets by the Company, any securities
which shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities will be treated as new
Deposited Securities, and the GDSs shall, subject to the terms and conditions of
the Deposit Agreement and applicable laws and regulations, thenceforth represent
the new Deposited Securities so received, unless additional or new GDRs are
delivered pursuant to the following sentence. In any such case the Depositary
may, with the Company's approval and pursuant to applicable law, and shall, if
the Company so requests and subject to the terms of the Deposit Agreement and
receipt of an opinion of the Company's counsel that such distributions are not
in contravention of any applicable laws or regulations, deliver additional GDSs,
as in the case of a stock dividend on the Shares, or call for the surrender of
outstanding GDSs to be exchanged for new GDSs specifically describing such new
Deposited Securities, and the Company agrees to execute such instruments or
documents as may be necessary or appropriate in connection with the delivery or
exchange of
B-17
GDSs. Immediately upon the occurrence of any such change, conversion or exchange
covered by Section 4.09 of the Deposit Agreement in respect of the Deposited
Securities, the Depositary will give notice thereof in writing, at the Company's
expense, to all Holders.
(18) Reports; Inspection of Transfer Books. The Depositary shall
make available for inspection by Holders at its Principal New York Office copies
of the Deposit Agreement, any notices, reports or communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary or a Custodian or the nominee of either, as the
holder of the Deposited Securities, and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
send to Holders copies of such notices, reports and communications if furnished
and requested by the Company to the Depositary as provided in the Deposit
Agreement. The Registrar shall keep books at its Principal New York Office for
the registration of GDRs and transfer of GDRs which at all reasonable times
shall be open for inspection by Holders and the Company, provided that such
inspection shall not be for the purpose of communicating with Holders 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 GDRs. After consultation with the
Company, the Registrar may close the transfer books with respect to the GDRs, at
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties under the Deposit Agreement or at the written
request of the Company.
(19) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor or other securities)
or any distribution pursuant to Section 4.09 thereof is subject to any tax,
governmental charge, including interest or penalties thereon, which the
Depositary is obligated to withhold, the Depositary, after consultation with the
Company, may dispose of all or a portion of such property (including Shares and
rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or governmental
charges or interest or penalties thereon, including by public or private sale,
and the Depositary shall (i) distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes, governmental charges
and any interest and penalties thereon, to the Holders entitled thereto in
proportion to the number of GDSs held by them respectively and (ii) if feasible
without withholding, for or on account of taxes or other governmental charges,
including interest or penalties thereon, without registration of such Shares or
other securities under the Securities Act and otherwise in compliance with
applicable law, distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
The Depositary will forward to the Custodian or to the Company or
their respective agents such information from its records as the Custodian or
the Company may reasonably request to enable the Custodian or the Company or
their respective agents to file necessary reports with governmental agencies,
and the Custodian or the Company or their respective agents may file such
reports as are necessary to obtain benefits under applicable tax treaties for
the Holders or Beneficial Owners. The Depositary and the Company shall have no
obligations or liability to any person if any Holder or Beneficial Owner fails
to provide such information or if such information does not reach relevant tax
authorities in time for any Holder or Beneficial Owner to obtain the benefit of
any tax treaty. The Depositary agrees to distribute
B-18
any necessary documentation to Holders to enable Holders or Beneficial Owners to
provide the necessary evidence of tax residence as required by the Korean tax
authorities and to collect such evidence of tax residence and timely forward
such evidence of tax residence to the Company.
Notwithstanding any other provision of the Deposit Agreement, before
making any distribution or other payment on any Deposited Securities, the
Company or its agent shall make such deductions (if any) which, by the laws of
Korea, the Company or its agent is required to make in respect of any income,
capital gains or other taxes and the Company or its agent may also deduct the
amount of any tax or governmental charges payable by the Company or its agent or
for which the Company or its agent might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the Company and its agent shall have no obligation to
any Holder or Beneficial Owner to apply a rate under any treaty or other
arrangement between Korea and the country within which such Holder or Beneficial
Owner is resident unless such Holder or Beneficial Owner has timely provided to
the Company or its agent evidence of the residency of such Holder or Beneficial
Owner that is accepted by the relevant tax authorities of Korea. The Holder or
Beneficial Owner shall indemnify the Depositary, the Company, 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, other governmental charges and any penalties or interest arising out of
any reduced rate of withholding, pursuant to a double taxation treaty or other
tax benefit obtained for such Holder or Beneficial Owner pursuant to this
paragraph (19).
(20) Liability of the Company and Depositary. Neither the Depositary
nor the Company nor any of their respective directors, employees, agents or
affiliates shall incur any liability to any Holder, Beneficial Owner, or any
other person, if by reason of any provision of any present or future law or
regulation of the United States, Korea or any other country or jurisdiction, or
of any other governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the Articles of Incorporation of
the Company, or by reason of any provision of any securities issued or
distributed by the Company or any offering or distribution thereof, or by reason
of any act of God or war or other circumstances beyond its control, the
Depositary or its agents or the Company or its agents shall be prevented,
delayed or forbidden from, or subject to any civil or criminal liability on
account of, doing or performing any act or thing which by the terms of the
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary or its agents or the Company or its agents incur any liability to any
Holder or Beneficial Owner of a GDR or by reason of any non-performance or
delay, caused as aforesaid, in performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement or in the Company's Articles of Incorporation or
provisions of or governing any Deposited Securities; nor shall the Depositary or
its agents or the Company or its agents incur any liability for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections 4.02, 4.03
or 4.04 of the Deposit Agreement or an offering and distribution pursuant to
Section 4.05 of the Deposit Agreement, or because of applicable law or for any
other reason, such distribution or offering may not be made available to
Holders, or some of them, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and may allow any rights, if applicable, to lapse. Each of the
B-19
Company and its agents assume no obligation nor shall it be subject to any
liability under the Deposit Agreement or the GDRs to Holders, Beneficial Owners
or other persons, except that each of the Company or its agents agrees to
perform its obligations specifically; set forth in the Deposit Agreement without
negligence or bad faith. Each of the Depositary and its agents assumes no
obligation nor shall it be subject to any liability under the Deposit Agreement
or the GDRs to Holders, Beneficial Owners or other persons (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that each of the Depositary and its agents agrees to perform
its duties specifically set forth in the Deposit Agreement without negligence or
bad faith. The Depositary shall not be subject to any liability under the
Deposit Agreement to the Company or the Holders or Beneficial Owners for failure
to perform any duties set forth in the Deposit Agreement if the performance of
such duties will cause, or is likely to cause, in the reasonable, good faith
judgment of the Depositary, a violation of the laws or regulations of Korea. The
Depositary and the Company undertake to perform such duties and only such duties
as are specifically set forth in the Deposit Agreement, and no implied covenants
or obligations shall be read into the Deposit Agreement against the Depositary
or the Company. The Depositary undertakes not to issue any GDSs other than GDSs
representing Deposited Securities then on deposit with the Custodian except as
specifically permitted under the Deposit Agreement. The Depositary also
undertakes not to lend Deposited Securities held by it as Depositary. 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 GDRs, which in its opinion may involve
it in expense and liability, unless indemnity satisfactory to it against all
expense (including fees and disbursements of counsel) and liability be furnished
as often as may be required, and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company shall 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 Beneficial Owner of a GDR, or any other person believed
by it in good faith to be competent to give such advice or information.
Each of the Depositary, its agents, any 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 and its agents shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any vote is cast or the
effect of any vote, provided that any such action or omission is in good faith
and in accordance with the terms of the Deposit Agreement. No disclaimer of
liability under the Securities Act is intended by any provision of the Deposit
Agreement.
(21) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement with respect to any or all Deposited Securities by 30 days' prior
written notice of its election so to do delivered to the Company such
resignation to take effect upon the earlier of (i) the expiration of such 30
days or (ii) upon the appointment by the Company of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 30 days' prior written
notice of such removal, which removal shall become effective upon the
appointment by the Company of a successor depositary for such
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Deposited Securities and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary, after consultation with the Company, may from
time to time appoint one or more agents to act for it as Custodian under the
Deposit Agreement. The Depositary has initially appointed Korea Securities
Depository as Custodian and agent of the Depositary for the purpose of the
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares and the other Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. Any Custodian may resign and be
discharged from its duties hereunder with respect to any or all Deposited
Securities by notice of such resignation delivered to the Depositary at least 30
days' prior to the date on which such resignation is to become effective. If a
Custodian notifies the Depositary of its intention to resign and there is at the
time no other Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice and after consultation with the Company, appoint a
substitute custodian that is organized under the laws of Korea with respect to
the Deposited Securities with respect to which the Custodian has so resigned
which shall thereafter be the Custodian under the terms of the Deposit
Agreement. The Depositary, after consultation with the Company, when it
reasonably appears to be in the best interest of the Holders to do so, may
appoint a substitute or an additional custodian with respect to any or all
Deposited Securities, which shall thereafter be a Custodian under the terms of
the Deposit Agreement. Forthwith upon its appointment, each such substitute or
additional custodian shall deliver to the Depositary an acceptance of such
appointment and agreement to be bound by the terms of the Deposit Agreement.
Upon demand of the Depositary, any Custodian shall deliver such of the Deposited
Securities with respect to which a substitute Custodian has been appointed held
by it together with all records maintained by it as Custodian with respect to
such Deposited Securities as are requested of it to any other Custodian or such
substitute or additional custodian or custodians, and each such substitute or
additional custodian shall deliver to the Depositary forthwith upon its
appointment, an acceptance of such appointment and agreement to be bound by the
terms of the Deposit Agreement, satisfactory in form and substance to the
Depositary. Immediately upon any change in Custodian, the Depositary shall at
its own expense give notice thereof in writing to all Holders of GDRs with
respect to which such appointment has been made, each other Custodian and the
Company.
Upon the appointment of any successor depositary under the terms of
the Deposit Agreement, any Custodian then acting hereunder with respect to such
Deposited Securities shall forthwith become, without any further act or writing,
the agent hereunder of such successor depositary and the appointment of such
successor depositary with respect to such Deposited Securities shall in no way
impair the authority of each Custodian under the terms of the Deposit Agreement
with respect to such Deposited Securities; but the successor depositary so
appointed shall, nevertheless, on the written request of any Custodian, execute
and deliver to such Custodian all such instruments as may be proper to give to
such Custodian full and complete power and authority as agent hereunder of such
successor depositary.
(22) Amendment of Deposit Agreement and GDRs. The form of the GDRs
and the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any amendment which shall
impose or increase any fees or charges (other than taxes or other governmental
charges), or which shall otherwise prejudice any substantial existing right of
Holders, shall not, however, become effective as to outstanding GDRs until the
expiration of 30 days' after notice of such amendment shall have
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been given to the Holders of outstanding GDRs. Every Holder and Beneficial Owner
of this GDR at the time any amendment so becomes effective shall be deemed, by
continuing to hold this GDR or to own any beneficial interest herein, to consent
and agree to such amendment and to be bound by the Deposit Agreement as amended
thereby.
(23) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company upon 30 days' prior notice from the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all GDRs then outstanding at least 30 days' prior to the date fixed
in such notice for such termination. The Depositary may terminate the Deposit
Agreement if, at any time 90 days after the Depositary shall have delivered to
the Company a written notice of its election to resign, a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.05 of the Deposit agreement. If any GDRs shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
registration of transfers of GDRs, will suspend the distribution of dividends to
the Holders thereof, shall not accept deposits of Shares (and will instruct each
Custodian to act accordingly) and shall not give any further notices or perform
any further acts under the Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sale property and rights and convert Deposited Securities into
cash as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for GDRs surrendered to the Depositary. At any time
after the expiration of six (6) months from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it under the Deposit Agreement, without
liability for interest, for the pro rata benefit of the Holders which have not
theretofore been surrendered. Thereafter the Depositary shall be discharged from
all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary under Sections 5.06 and 5.10
thereof The obligations of the Depositary under Section 5.10 of the Deposit
Agreement shall survive the termination of the Deposit Agreement.
(24) Governing Law. The Deposit Agreement and the GDRs shall be
interpreted accordance with, and all rights thereunder and provisions thereof
shall be governed by, the laws of the State of New York. 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 disputes between them that may arise out of or in connection with the
Deposit Agreement and, for such purposes, each has irrevocably submitted to the
non-exclusive jurisdiction of such courts. The Company hereby designates,
appoints and empowers CT Corporation System, presently located at 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as 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 court as described in the preceding sentence.
(25) Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of this GDR hereby appoints the Depositary its attorney-in-fact, with
full power to delegate, to
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take any and all steps or action provided for or contemplated herein with
respect to the Deposited Securities, including but not limited to those set
forth in Article IV of the Deposit agreement, and to take such further steps or
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement.
CITIBANK, N.A.,
as Depositary
Dated: By:______________________________
Vice President
The address of the Principal New York Office of the Depositary is
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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ASSIGNMENT AND TRANSFER SIGNATURE LINES
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _________________________________ whose taxpayer identification
number is _____________________ and _____________________ whose address
including postal zip code is ________________ the within GDR and all rights
thereunder, hereby irrevocably constituting and appointing ____________
attorney-in-fact to transfer said GDR on the books of the Depositary with full
power of substitution in the premises.
In connection with the transfer of this GDR, the undersigned Holder
certifies that:
(Check one)
|_| (a) This GDR is being transferred to a person who the undersigned Holder
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act") purchasing for its own account or for the account
of a qualified institutional buyer that is aware that the resale,
pledge or other transfer is being made in reliance on Rule 144A.
|_| (b) This GDR is being transferred to a non-U.S. person (as defined in
Regulation S under the Securities Act) pursuant to and in accordance
with Regulation S.
|_| (c) This GDR is being transferred pursuant to an effective registration
statement under the Securities Act.
If none of the boxes above is checked, the Depositary shall not be
obligated to register this GDR in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein, on the face hereof and in the Deposit Agreement shall have been
satisfied.
Dated: Name:__________________________________
By:____________________________________
Title:_________________________________
NOTICE: The signature of the Holder to
this assignment must correspond with
the name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatsoever.
SIGNATURE GUARANTEED
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EXHIBIT C-1
Combined Facility
Deposit Certification
Certification and Agreement of Acquirors of
GDSs Upon Deposit of Shares Pursuant to
Section 2.03 of the Deposit Agreement
We refer to the Deposit Agreement, dated as of September 3, 2001
(the Deposit Agreement"), among Shinhan Financial Group Co., Ltd. (the
"Company"), Citibank, N.A., as Depositary, and all Holders and Beneficial Owners
from time to time of Global Depositary Receipts (the "GDRs") issued thereunder.
Capitalized terms used but not defined herein shall have the meanings given them
in the Deposit Agreement.
1. This certification and agreement is furnished in connection with
the deposit of Shares and delivery of GDSs to be evidenced by one or more GDRs
pursuant to Section 2.03 of the Deposit Agreement.
2. We acknowledge (or if we are acting for the account of another
person, such person has confirmed to us that it acknowledges) that the GDRs, the
GDSs evidenced thereby and the Shares represented thereby have not been and will
not be registered under the Securities Act of 1933, as amended (the "Securities
Act").
3. We certify that we are not the Company or an "Affiliate" (as such
term is defined in Regulation C under the Act) of the Company and that, if we
are acting on behalf of another person, such person is not the "Company" and has
confirmed to us that it is not an "Affiliate" of the Company and that it is not
acting on behalf of the Company or an "Affiliate" of the Company.
4. We certify that either:
A. We are a qualified institutional buyer (as defined in Rule 144A
under the Securities Act), and at the time of delivery of the GDSs
referred to above, we (or one or more qualified institutional buyers
for whose account we are acting) will be the beneficial owner of
such GDSs and we are aware that any sale to us of GDSs is being made
in reliance on Rule 144A under the Securities Act.
OR
B. We are a broker-dealer acting for the account of our customer; our
customer has confirmed to us that it is a qualified institutional
buyer and either (i) at the time of delivery of the GDSs referred to
above, it will be the beneficial owner of such, or (ii) it is acting
for the account of a qualified institutional buyer that, at the time
of delivery of the GDSs referred to above, will be the beneficial
owner of the GDSs and it is aware that any sale to it of GDSs is
being made in reliance on Rule 144A under the Securities Act.
C-1-1
OR
C. At the time of delivery of the GDSs referred to above, we will be
the beneficial owner of such; and we are located outside the United
States (within the meaning of Regulation S under the Securities Act)
and acquired, or have agreed to acquire and will have acquired, the
Shares to be deposited outside the United States (within the meaning
of Regulation S), and we are not a U.S. person (as defined in
Regulations S).
OR
D. We are a broker-dealer acting for the account of our customer; our
customer has confirmed to us that either (i) at the time of delivery
of the GDSs referred to above, it will be the beneficial owner of
such; and it is located outside the United States (within the
meaning of Regulation S under the Securities Act) and acquired, or
has agreed to acquire and will have acquired, the Shares to be
deposited outside the United States (within the meaning of
Regulation S) and it is not a U.S. person (as defined in Regulation
S); or (ii) it is located outside the United States (within the
meaning of Regulation S), and is acting for the account of a person
located outside the United States (within the meaning of Regulation
S) who acquired, or has agreed to acquire and will have acquired,
the Shares to be deposited outside the United States (within the
meaning of Regulation S) and who, at the time of delivery of the
GDSs referred to above, will be the beneficial owner of such GDSs,
and it is not a U.S. person (as defined in Regulation S).
4. As the beneficial owner of GDSs, we agree (or if we are acting
for the account of another person, such person has confirmed to us that, as the
beneficial owner of GDSs, it agrees) that we (or it) will not offer, sell,
pledge or otherwise transfer the GDRs, the GDSs evidenced thereby or the Shares
represented thereby except (a) to a person whom we reasonably believe (or it and
anyone acting on its behalf reasonably believes) is a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act in a transaction
meeting the requirements of Rule 144A, (b) to non-U.S. persons (as defined in
Regulation S) pursuant to and in accordance with Regulation S under the
Securities Act, or (c) pursuant to an effective registration statement under the
Securities Act (if available), in each case in accordance with any applicable
securities laws of any state of the United States and other applicable
jurisdictions.
Very truly yours,
__________________________________
[NAME OF CERTIFYING ENTITY]
By: ______________________________
Name:
Title:
Dated:
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