PBWT Draft 6/21/06
For Discussion Purposes Only
GMARKET INC.
8th Floor, LIG Tower
000-00, Xxxxxxx-Xxxx
Xxxxxxx-Xx
Xxxxx 000-000, Xxxxx
July [DATE], 2006
Citibank, N.A. - ADR Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Depositary Receipts Department
Re: Gmarket ADSs
Ladies and Gentlemen:
Reference is made to the Deposit Agreement, dated as of July __, 2006 (the
"Deposit Agreement"), by and among Gmarket Inc., a company organized under the
laws of the Republic of Korea (the "Company"), Citibank, N.A., as Depositary
(the "Depositary"), and all Holders and Beneficial Owners of American Depositary
Shares ("ADSs") evidenced by American Depositary Receipts ("ADRs") issued
thereunder. All capitalized terms used, but not otherwise defined herein, shall
have the meaning assigned thereto in the Deposit Agreement.
The Company wishes to enable certain affiliate stockholders identified on
Exhibit A annexed hereto (the "Affiliate Stockholders") and certain other
stockholders identified on Exhibit A annexed hereto (the "Eligible Stockholders"
together with the Affiliate Stockholders, the "Stockholders"), to deposit,
against the issuance of ADSs, the aggregate number of Shares listed opposite the
name of each such Affiliate Stockholder on Exhibit A annexed hereto (the
"Affiliate Shares") and Eligible Stockholder on Exhibit A annexed hereto (the
"Eligible Shares" together with the Affiliate Shares, the "Letter Agreement
Shares") without payment by such Stockholders of the fees of the Depositary set
forth on Exhibit B annexed to the Deposit Agreement (the "Waived Fees"). In
addition, the Company wishes to prohibit the deposit of Shares into the ADR
facility by stockholders of the Company who owned Shares prior to the initial
public offering of the Company (a "Pre-IPO Stockholder") for a period of 180
days commencing on July ___, 2006 and terminating on January __, 2007 (the
"Lock-Up Period"). The purpose and intent of this letter agreement is to
supplement the Deposit Agreement for the purpose of (i) accommodating the
deposit of the Eligible Shares by the Eligible Stockholders and the issuance and
delivery by the Depositary of the ADSs and the ADRs evidencing the ADSs to the
Eligible Stockholders upon the deposit of the Eligible Shares without payment of
the Waived Fees, (ii) setting forth the understanding of the parties with
respect to accommodations to be made for the Affiliate Stockholders, and (iii)
establishing procedures to prohibit the deposit of Shares against issuance of
ADSs by Pre-IPO Stockholders during the Lock-Up Period.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Depositary hereby agree, as
follows:
1. Depositary Procedures. The Company instructs the Depositary, and the
Depositary agrees upon the terms and subject to the terms set forth in this
letter agreement, to (i) establish procedures to enable the deposit of the
Eligible Shares by the Eligible Stockholders against the issuance by the
Depositary of ADSs issued under the terms of the Deposit Agreement, without
payment of the Waived Fees, and (ii) to establish procedures to prohibit the
deposit of Shares by Pre-IPO Stockholders during the Lock-Up Period. The
Depositary shall be authorized to rely on the certification annexed hereto as
Exhibit B (the "Eligible 1Stockholder Certification") when delivered by the
Eligible Stockholder(s) and on the certification annexed hereto as Exhibit C
(the "Lock-Up Certification") when delivered by a depositing holder of Shares
during the Lock-Up Period.
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2. Company Assistance. The Company agrees to use commercially reasonable
efforts to (i) assist the Depositary in the establishment of procedures to
enable the acceptance of the deposit of the Eligible Shares and the issuance of
ADSs, (ii) assist the Depositary in the establishment of procedures to prohibit
the deposit of Shares by Pre-IPO Stockholders during the Lock-Up Period, and
(iii) take all commercially reasonable steps necessary and satisfactory to the
Depositary to ensure that the acceptance of the deposit of the Eligible Shares,
the issuance of ADSs, and the issuance and delivery of the ADRs, in each case
upon the terms and conditions set forth in the Deposit Agreement as supplemented
by this letter agreement, do not violate the provisions of the Securities Act or
any other applicable laws.
3. Limitations on Issuance of ADSs. (i) Subject to Paragraph 3(ii) of this
letter agreement, the Company hereby instructs the Depositary, and the
Depositary agrees upon the terms and subject to the conditions set forth in this
letter agreement, to issue and deliver ADSs to the Eligible Stockholder(s)
against the deposit of Eligible Shares upon receipt of (w) notification from the
Eligible Stockholder (or his/her broker) that he/she is an Eligible Stockholder,
(x) confirmation of the due deposit with the Custodian of Eligible Shares, (y)
the duly executed Eligible Stockholder Certification, and (z) payment by the
Eligible Stockholder of the applicable taxes and expenses, excluding the Waived
Fees, otherwise payable under the terms of the Deposit Agreement upon the
deposit of Shares and the issuance of ADSs; provided, that in no event shall the
Depositary be obligated to accept at any time or from time to time Shares from
an Eligible Stockholder which exceed, when combined with previous deposits of
Shares by such Eligible Stockholder, the number of Eligible Shares set forth
opposite such Eligible Stockholder's name without payment of the Depositary's
Fees set forth on Exhibit B to the Deposit Agreement (the "Standard Fees"); and
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provided further, that, commencing on __________, Eligible Stockholders will be
obligated to pay the Standard Fees for all deposits of Shares into the ADR
facility. The ADSs issued upon the deposit of Eligible Shares shall be eligible
for inclusion in any book-entry settlement system, including, without
limitation, The Depositary Trust Company, and shall be fungible with the other
ADSs issued under the terms hereof and the Deposit Agreement. Nothing contained
in this letter agreement shall in any way be deemed to obligate the Depositary,
or to give authority to the Depositary, to accept any Shares (other than the
Eligible Shares described herein) for deposit under the terms of this Section
3(i).
(ii) The Company hereby instructs the Depositary, and the Depositary
agrees upon the terms and subject to the conditions set forth in this letter
agreement, not to accept any Shares for deposit into the ADR facility pursuant
to Section 2.3 of the Deposit Agreement during the Lock-Up Period unless such
depositing stockholder has delivered a duly executed Lock-Up Certification to
the Depositary. The Company further instructs the Depositary, and the Depositary
further agrees upon the terms and subject to the conditions set forth in this
letter agreement, to cease requiring the Lock-Up Certification from all
depositing stockholders commencing on January __, 2007.
4. Subject to Paragraph 3(ii) of this letter agreement, in the event that
any Affiliate Stockholder desires to deposit any Affiliate Shares, against the
issuance of ADSs, the Depositary and the Company hereby agree to cooperate to
establish procedures for (i) the deposit of Affiliate Shares pursuant to Section
2.13 of the Deposit Agreement or (ii) the sale of Affiliate Shares in the form
of ADSs pursuant to an effective registration statement under the Securities
Act, in each case, without payment of the Waived Fees.
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5. Representations and Warranties. The Company hereby represents and
warrants that (i) the Letter Agreement Shares currently held by, and to be
deposited by, the Stockholders for the purpose of the issuance of the ADSs to
the Letter Agreement Stockholder(s) are validly issued, fully paid and
non-assessable, (ii) other than as set forth in certain lock-up agreements
entered into by such Stockholders, certain underwritings of a proposed initial
public offering by the Company and Paragraph 3(ii) of this letter agreement, the
Stockholders are not prohibited from depositing the Letter Agreement Shares with
the Custodian as a result of any agreement with the Company, and (iii) the
Letter Agreement Shares being deposited by the Stockholders for the issuance of
the ADSs to the Letter Agreement Stockholder(s) rank pari passu, in all
respects, including, without limitation, as to trading, settlement,
distributions, liquidation and preemptive rights, to the issued and outstanding
Shares that are on deposit under the Deposit Agreement. Such representations and
warranties shall survive the deposit of the Letter Agreement Shares, the
issuance of ADSs and, if applicable, the issuance and delivery of ADR(s).
6. Indemnity. The Company and the Depositary acknowledge and agree that
the indemnification provisions under Section 5.8 of the Deposit Agreement shall
apply to all acts performed or omitted by the Depositary as contemplated by this
letter agreement.
7. Governing Law. This letter agreement shall be interpreted and all
rights hereunder shall be governed by the laws of the State of New York without
regards to the principles of conflicts of law thereof.
8. Termination. Except as provided in Paragraphs 5, 6 and 7, this letter
agreement shall terminate and be of no further force and effect as of ________.
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The Company and the Depositary have caused this letter agreement to be
executed and delivered on their behalf by their respective officers thereunto
duly authorized as of the date set forth above.
GMARKET
By:
------------------------------
Name: Young Bae Ku
Title: Chief Executive Officer
CITIBANK, N.A.
By:
---------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT
-------
A. Stockholders
B. Eligible Stockholder Certification
C. Lock-Up Certification
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EXHIBIT A
to
Letter Agreement, dated as of July __, 2006
(the "Letter Agreement"), by and between
Gmarket
and Citibank, N.A.
---------------------
STOCKHOLDER(S)
Eligible for Waived Fees
---------------------
All capitalized terms used but not otherwise defined herein shall
have the meaning given to such terms in the Letter Agreement.
---------------------
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Number of Letter Agreement
Name of Stockholder A/E Address of Stockholder Shares
------------------- --- ---------------------- --------------------------
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A - Denotes Stockholders who are Affiliate Stockholders and may, in their
individual capacity, request that that the Company and the Depositary facilitate
the deposit of their respective Affiliate Shares pursuant to Paragraph 4 of the
Letter Agreement.
E - Denotes Stockholders who are Eligible Stockholders and may not request that
that the Company and the Depositary facilitate the deposit of their respective
Eligible Shares pursuant to Paragraph 4 of the Letter Agreement.
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EXHIBIT B
to
Letter Agreement, dated as of July __, 2006
(the "Letter Agreement"), by and between
Gmarket Inc.
and
Citibank, N.A.
---------------------
ELIGIBLE STOCKHOLDER CERTIFICATION
---------------------
Certification and Agreement of Eligible Stockholders Acquiring ADSs upon
Deposit of Shares Pursuant to Section 2.3 of the Deposit Agreement(1)
_______________, ____
Citibank, N.A. - ADR Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Depositary Receipts Department
Gmarket Inc.
8th Floor, LIG Tower
000-00, Xxxxxxx-Xxxx
Xxxxxxx-Xx
Xxxxx 000-000, Xxxxx
Gmarket Inc. ADSs
Dear Sirs:
Reference is made to the Deposit Agreement, dated as of July ___,
2006 (the "Deposit Agreement"), by and among Gmarket Inc., a company organized
under the laws of the Republic of Korea (the "Company"), Citibank, N.A., as
Depositary (the "Depositary"), and all Holders and Beneficial Owners of American
Depositary Shares ("ADSs") evidenced by American Depositary Receipts ("ADRs")
issued thereunder, and (ii) the Letter Agreement, dated as of July ___, 2006
(the "Letter Agreement"), by and between the Company and the Depositary.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Deposit Agreement, or, in the event so noted herein, in the Letter
Agreement.
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(1) To be used until _________.
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This certification and agreement is being furnished by the
undersigned Eligible Stockholder (as defined in the Letter Agreement) in
connection with the deposit of Eligible Shares (as defined in the Letter
Agreement) and the issuance of ADSs.
1. The undersigned Eligible Stockholder represents and warrants that
(a) the Eligible Shares currently held by, and to be deposited by,
the undersigned Eligible Stockholder against the issuance of the
ADSs are validly issued, fully paid and non-assessable, (b) the
undersigned Eligible Stockholder is not prohibited from depositing
the Eligible Shares with the Custodian on account of any regulation,
contractual undertaking or any limitation to any undertaking, and
(c) the Eligible Shares being deposited by the undersigned Eligible
Stockholder for the issuance of ADSs rank pari passu, in all
respects, including, without limitation, as to trading, settlement,
distributions, liquidation and preemptive rights, to the issued and
outstanding Shares that are on deposit under the Deposit Agreement.
Such representations and warranties shall be true and correct as of,
and shall survive, the deposit of the Eligible Shares, the issuance
of ADSs, and the issuance and delivery of ADR(s).
2. The undersigned Eligible Stockholder certifies that he/she is not an
Affiliate of the Company.
3. The undersigned represents and warrants that the number of Eligible
Shares to be deposited in connection with this Eligible Stockholder
Certification does not exceed, when combined with all other Shares
previously deposited by such Eligible Stockholder, the aggregate
number of Eligible Shares for which such Eligible Stockholder is
entitled to Waived Fees.
4. The undersigned Xxxxxxxx Stockholder further agrees and acknowledges
that the Company and the Depositary will rely upon the truth and
accuracy of the foregoing certifications.
[NAME OF ELIGIBLE STOCKHOLDER]
By:
---------------------------------
Name:
Title:
Date:
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EXHIBIT C
to
Letter Agreement, dated as of July __, 2006
(the "Letter Agreement"), by and between
Gmarket Inc.
and
Citibank, N.A.
---------------------
LOCK-UP CERTIFICATION
---------------------
Certificate and Agreement of Acquirors of ADSs Upon
Deposit of Shares Pursuant to Section 2.03 of the Deposit Agreement(2)
_______________, ____
Citibank, N.A. - ADR Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Depositary Receipts Department
Gmarket Inc.
8th Floor, LIG Tower
000-00, Xxxxxxx-Xxxx
Xxxxxxx-Xx
Xxxxx 000-000, Xxxxx
Gmarket Inc. ADSs
Dear Sirs:
Reference is made to the Deposit Agreement dated as of July ___,
2006 (the "Deposit Agreement"), by and among Gmarket, a company organization
under the land of the Republic of Korea (the "Company"), Citibank, N.A., as
Depositary (the "Depositary") and all Holders and Beneficial Owners of American
Depositary Shares ("ADSs ") evidenced by American Depositary Receipts ("ADRs")
issued thereunder, and (ii) the Letter Agreement, dated July ___, 2006 (the
"Letter Agreement") by and between the Company and the Depositary. 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 issuance of ADSs pursuant to Sections 2.3 of the
Deposit Agreement.
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(2) To be used until __________, 2007.
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2. We certify (or if we are a broker-dealer, our customer has
confirmed to us that he/she/it agrees) that all Shares being deposited by the
undersigned were acquired on or after July __, 2006.
Very truly yours,
-------------------------------
[NAME OF CERTIFYING ENTITY]
By:
---------------------------
Title:
Dated:
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