AMENDMENT NO. 3 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 3 TO DEPOSIT AGREEMENT
AMENDMENT NO. 3, dated as of
December , 2008 (the “Amendment”), to the Deposit Agreement dated as
of December 16, 2003, as amended as of February 3, 2004 and July 16, 2004(as so
amended hereby, the “Deposit Agreement”), among Webzen Inc., incorporated under
the laws of the Republic of Korea (the “Company”), JPMorgan Chase Bank, N.A., as
depositary (the “Depositary”), and all holders from time to time of American
depositary receipts (“ADRs”) issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement and ADRs.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT AND FORM OF ADR
SECTION 2.01. All references
in the Deposit Agreement and form of ADR to the term “Deposit Agreement” shall,
as of the Effective Date (as herein defined), refer to the Deposit Agreement,
dated as of December 16, 2003, as amended as of February 3, 2004 and July 16,
2004, and as further amended by this Amendment.
SECTION 2.02. Subsection (ii)
of the third sentence of paragraph (7) of the form of ADR is amended to read as
follows:
(ii) an
aggregate fee of U.S.$0.02 per ADS per calendar year (or portion thereof) for
services performed by the Depositary in administering the ADRs (which fee may be
charged on a periodic basis during each calendar year and shall be assessed
against Holders as of the record date or record dates set by the Depositary
during each calendar year and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one or more
cash dividends or other cash distributions)
SECTION 2.03. The form
of ADR reflecting the amendments described in Article II shall be in the form
set forth as Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
SECTION 3.01. Representations
and Warranties. The Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a) This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;
and
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(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and any
other document furnished hereunder or thereunder in the Republic of Korea,
neither of such agreements need to be filed or recorded with any court or other
authority in the Republic of Korea, nor does any stamp or similar tax or
governmental charge need to be paid in the Republic of Korea on or in respect of
such agreements; and
(c) All
of the information provided to the Depositary by the Company in connection with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION 4.01. Effective
Date. This Amendment is dated as of the date set forth above
and shall be effective thirty days after notice thereof is first provided to
Holders (the “Effective Date”).
SECTION 4.02. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
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IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT NO. 3 TO DEPOSIT
AGREEMENT
[FORM OF
FACE OF ADR]
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No.
of ADSs:
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Number
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Ten
ADSs represent
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three
Shares
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
(Incorporated
under the
laws of
the Republic of Korea)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States, as depositary hereunder (the "Depositary"), hereby certifies that
is the
registered owner (a "Holder") of American
Depositary Shares ("ADSs"), ten such ADSs (subject to paragraph (13))
representing three common shares, Won 500 each (including the rights to receive
Shares described in paragraph (1), "Shares" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Shares, the "Deposited Securities"), of WEBZEN INC., a
corporation organized under the laws of the Republic of Korea (the "Company"),
deposited under the Deposit Agreement dated as of December 16, 2003 (as amended
from time to time, the "Deposit Agreement") among the Company, the Depositary
and all Holders from time to time of American Depositary Receipts issued
thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
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(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the
Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions on behalf of the Company; or, (c) other rights to receive Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary, (c)
holds such Shares for the account of the Depositary and (d) will deliver such
Shares to the Custodian as soon as practicable and promptly upon demand therefor
and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement
represents and warrants that such Shares are validly issued and outstanding,
fully paid, nonassessable and free of pre-emptive rights, that the person making
such deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities
Act of 1933 unless at the time of deposit they may be freely transferred in
accordance with Rule 144(k) and may otherwise be offered and sold freely in the
United States or (B) have been registered under the Securities Act of
1933. Such representations and warranties shall survive the deposit
of Shares and issuance of ADRs. If any of the representations or
warranties are incorrect in any way, the Depositary and the Company may, at the
cost and expense of the Holder, take any and all actions necessary to correct
the consequences of any such misrepresentations. The Depositary
will not knowingly accept for deposit under the Deposit Agreement any Shares
required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act.
(2) Withdrawal of Deposited
Securities. Subject to paragraphs (4) and (5) and applicable
laws, upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR; provided that the
Depositary will effect the delivery to such Holder of only that portion of
Shares (and any other Deposited Securities relating to such Shares) comprising a
whole Share or an integral multiple thereof. At the request,
risk and expense of the Holder hereof and to the extent not prohibited under
applicable law, the Depositary may deliver such Deposited Securities at such
other place as may have been requested by the Holder, if it is permitted to do
so by applicable law. As of the date of the Deposit Agreement, a
Holder who wants to withdraw Shares must register its identity with the
Financial Supervisory Service of Korea before the acquisition of Shares if such
registration has not been made unless such Holder intends to sell the Shares
within three months. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
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(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at all
reasonable times will be open for inspection by Holders and the Company for the
purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR
is transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that
the Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of
a Holder, the Depositary shall, for the purpose of substituting a certificated
ADR with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain
Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any
stock transfer or other tax or other governmental charge, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) the production
of proof satisfactory to it of (i) the identity and genuineness of any signature
and (ii) such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, payment of applicable Korean or other taxes or governmental charges,
or legal or beneficial ownership and the nature of such interest, information
relating to the registration on the shareholders' register of the Company (or
the appointed agent of the Company for the transfer and registration of Shares)
or the books of the CSD of the Shares presented for deposit, compliance with
applicable law, regulations, provisions of or governing Deposited Securities and
terms of the Deposit Agreement and this ADR, as it may deem necessary or proper;
and (c) compliance with such regulations as the Depositary may establish
consistent with the Deposit Agreement. As a condition of accepting
Shares for deposit, the Depositary may require that the person making such
deposit furnish evidence satisfactory to the Depositary (which may be an opinion
of counsel) that any necessary approvals have been waived or granted by any
governmental or quasi-governmental body or agency in Korea, including, without
limitation, any such body which is then performing the function of regulation of
currency exchange. The issuance of ADRs, the acceptance of deposits
of Shares, the registration, registration of transfer, split-up or combination
of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register, any register for Deposited Securities is closed, the
books of the CSD are closed, or when any such action is deemed advisable by the
Depositary or the Company.
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(5) Taxes. If
any tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration,
registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until
such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company or its agent will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Company or its agent; and the
Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. The Depositary
shall forward to the Company or its agent such information from its records as
the Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies. If
the Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes to
the Holders entitled thereto. Notwithstanding any other provision of
the Deposit Agreement or this ADR, before making any distribution or other
payment on any Deposited Securities, the Company shall make such deductions (if
any) which, by the laws of Korea, the Company is required to make in respect of
any income, capital gains or other taxes and the Company may also deduct the
amount of any tax or governmental charges payable by the Company or for which
the Company might be made liable in respect of such distribution or other
payment or any document signed in connection therewith. In making
such deductions, neither the Company nor the Depositary shall have any
obligation to any Holder to apply a rate under any treaty or other arrangement
between Korea and the country within which such Holder is resident unless such
Holder has timely provided to the Company directly or through the Depositary or
the Custodian evidence of the residency of such Holder that is accepted by the
relevant tax authorities of Korea. The Holder shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to penalties or interest
arising out of any reduced rate of withholding, at source, or other tax benefit
obtained for such Holder pursuant to this paragraph. The Depositary
will use reasonable efforts to make available, at a cost, a mechanism to enable
Holder to secure at the source any reduced rates of tax available to such
Holders under any treaties between Korea and countries within which any such
Holders may be residents.
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(6) Disclosure of
Interests. To the extent that the provisions of or governing
any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions. The Company may also
restrict, in such manner as it deems appropriate, transfers of the ADSs where
such transfer may result in the ownership of Shares exceeding 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 advise any Holder in excess of any such
legal limit to surrender their ADSs for cancellation so as to permit the Company
to deal directly with such Holder and by holding an ADR or an interest therein,
each Holder is agreeing to abide by such request.
(7) Charges of
Depositary. The Depositary may charge each person to whom ADSs
are issued against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), and each person surrendering ADSs for withdrawal of Deposited
Securities, U.S. $5.00 for each 100 ADSs (or portion thereof) delivered or
surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such
charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable (i) to
the extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are traded, a fee of US$0.02 or less per
ADS (or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) an aggregate fee of U.S.$0.02 per ADS per calendar year (or
portion thereof) for services performed by the Depositary in administering the
ADRs (which fee may be charged on a periodic basis during each calendar year and
shall be assessed against Holders as of the record date or record dates set by
the Depositary during each calendar year and shall be payable at the sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or more cash dividends or other cash distributions), (iii) a fee for
the distribution of securities pursuant to paragraph (10) hereof, such fee being
in an amount equal to the fee for the execution and delivery of ADSs referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this paragraph (7) treating all such securities as
if they were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Holders entitled thereto
and (iv) such fees and expenses as are incurred by the Depositary (including
without limitation expenses incurred on behalf of Holders in connection with
compliance with foreign exchange control regulations or any law or regulation
relating to foreign investment in Korea) in delivery of Deposited Securities or
otherwise in connection with the Depositary's or its Custodian's compliance with
applicable law, rule or regulation. The Company will pay all other charges and
expenses of the Depositary and any agent of the Depositary (except the
Custodian) pursuant to agreements from time to time between the Company and the
Depositary, except (i) stock transfer or other taxes and other governmental
charges (which are payable by Holders or persons depositing Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request of
persons depositing, or Holders delivering Shares, ADRs or Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the registration or transfer of Deposited Securities on any applicable
register, or the books of a CSD, in either case in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), and (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign
currency). These charges may be changed in the manner indicated in
paragraph (16).
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(8) Available
Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute
copies of such communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain reports with the United States Securities and Exchange Commission
(the "Commission"). Such reports and other information may be
inspected and copied at public reference facilities maintained by the Commission
located at the date hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
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(9) Execution. This
ADR shall not be valid for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
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The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM OF
REVERSE OF ADR]
(10) Distributions on Deposited
Securities. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto on
the record date set by the Depositary therefor at such Holder's address shown on
the ADR Register, in proportion to the number of Deposited Securities (on which
the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs: (a)
Cash. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares. (i)
Additional ADRs evidencing whole ADSs representing any Shares available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights. (i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights as
in the case of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any
means that the Depositary may deem equitable and
practicable,
or (ii) to the extent the Depositary deems distribution of such securities or
property not to be equitable and practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Other Distributions as in the case
of Cash. Any U.S. dollars available will be distributed by checks drawn on a
bank in the United States for whole dollars and cents. Fractional cents will be
withheld without liability and dealt with by the Depositary in accordance with
its then current practices.
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(11) Record
Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited
Securities. As soon as practicable after receipt from the
Company of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall distribute
to Holders a notice stating (a) such information as is contained in such notice
and any solicitation materials, (b) that each Holder on the record date set by
the Depositary therefor, subject to Korean laws and the provisions and articles
of the Company's articles of incorporation, will be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs and
(c) the manner in which such instructions may be given. Upon receipt
of instructions of a Holder on such record date in the manner and on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any
voting discretion in respect of any Deposited Securities. A Holder
may only exercise the voting rights in respect of multiples of 10 ADSs (or such
other number that represents one or more whole Shares). There can be
no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return
voting instructions to the Depositary in a timely manner.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and to sell by
public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
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(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or (ii)
by reason of any exercise or failure to exercise any discretion given it in the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The
Depositary and its agents will not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities (provided it acts in
good faith), for the manner in which any such vote is cast or for the effect of
any such vote. For the avoidance of doubt, the Depositary shall have
no responsibility whatsoever to the Company, any Holder or beneficial owner or
any other person with respect to any deficiency which might arise because the
Depositary is subject to any tax in respect of the Deposited Securities or any
part thereof or any income therefrom or any proceeds thereof. The Depositary and
its agents may own and deal in any class of securities of the Company and its
affiliates and in ADRs. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company under certain circumstances. Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of
Depositary; the Custodian. The Depositary may resign as
Depositary by written notice of its election to do so delivered to the Company,
or be removed as Depositary by the Company by written notice of such removal
delivered to the Depositary. A resignation by the Depositary shall
not be effective until the earlier of (i) 90 days from the date of such notice
of resignation and (ii) the date on which the Company shall have appointed a
successor depositary. The Depositary, upon consultation with the
Company, if practicable, may appoint substitute or additional Custodians and the
term "Custodian" refers to
each Custodian or all Custodians as the context requires.
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(16) Amendment. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary, provided that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time
any amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit Agreement
or the form of ADR to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the ADR at any time
in accordance with such changed rules. Such amendment or supplement
to the Deposit Agreement in such circumstances may become effective before a
notice of such amendment or supplement is given to Holders or within any other
period of time as required for compliance.
(17) Termination. Upon the
resignation or removal of the Depositary pursuant to the Deposit Agreement, the
Depositary may, and shall at the written direction of the Company, terminate the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary
and its agents will perform no further acts under the Deposit Agreement and this
ADR, except to receive and hold (or sell) distributions on Deposited Securities
and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents.
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