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KB FINANCIAL GROUP INC.,
and
CITIBANK, N.A.,
as Depositary,
and
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
Third Amended and Restated Deposit Agreement
Dated as of September 29, 2008
--------------------------------------------------------------------------------
Kookmin Bank has joined in the execution of this Third Amended and Restated
Deposit Agreement solely to amend and restate the Second Amended and Restated
Deposit Agreement.
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.............................................................................................2
SECTION 1.01 Affiliate...................................................................................2
SECTION 1.02 Affiliated Owner............................................................................2
SECTION 1.03 American Depositary Share(s) and ADS(s).....................................................2
SECTION 1.04 Beneficial Owner............................................................................3
SECTION 1.05 Business Day................................................................................3
SECTION 1.06 Certificated ADSs...........................................................................3
SECTION 1.07 Commission..................................................................................3
SECTION 1.08 Company.....................................................................................3
SECTION 1.09 CSD.........................................................................................3
SECTION 1.10 Custodian...................................................................................3
SECTION 1.11 Deliver; Surrender..........................................................................4
SECTION 1.12 Deposit Agreement...........................................................................4
SECTION 1.13 Depositary; Principal Office................................................................4
SECTION 1.14 Deposited Securities........................................................................4
SECTION 1.15 Dollars; Won................................................................................5
SECTION 1.16 DTC.........................................................................................5
SECTION 1.17 DTC Participant.............................................................................5
SECTION 1.18 Foreign Currency............................................................................5
SECTION 1.19 Foreign Registrar...........................................................................5
SECTION 1.20 Original Deposit Agreement..................................................................5
SECTION 1.21 Holder......................................................................................5
SECTION 1.22 Kookmin ADSs................................................................................6
SECTION 1.23 Pre-Release.................................................................................6
SECTION 1.24 Receipt(s), American Depositary Receipt(s) and ADR(s).......................................6
SECTION 1.25 Registrar...................................................................................6
SECTION 1.26 Restricted Securities.......................................................................6
SECTION 1.27 Securities Act of 1933......................................................................7
SECTION 1.28 Shares......................................................................................7
SECTION 1.29 Uncertificated ADSs.........................................................................7
ARTICLE 2 FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.........7
SECTION 2.01 Form and Transferability of Receipts........................................................7
SECTION 2.02 Deposit of Shares...........................................................................9
SECTION 2.03 Issuance of ADSs...........................................................................11
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.................................12
SECTION 2.05 Surrender of ADSs and Withdrawal of Deposited Securities...................................12
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender of ADSs......................14
SECTION 2.07 Lost Receipts, etc.........................................................................15
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.......................................15
SECTION 2.09 Pre-Release Transactions...................................................................15
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SECTION 2.10 Maintenance of Records.....................................................................16
SECTION 2.11 [Intentionally Omitted]....................................................................16
SECTION 2.12 Certificated/Uncertificated ADSs...........................................................16
SECTION 2.13 Restricted ADSs............................................................................18
ARTICLE 3 CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.............................................................19
SECTION 3.01 Filing Proofs, Certificates and Other Information..........................................19
SECTION 3.02 Liability of Holders and Beneficial Owners for Taxes.......................................19
SECTION 3.03 Representations and Warranties on Deposit of Shares........................................20
SECTION 3.04 Disclosure of Interests....................................................................20
SECTION 3.05 Ownership Restrictions.....................................................................20
SECTION 3.06 Reporting Obligations and Regulatory Approvals.............................................21
ARTICLE 4 THE DEPOSITED SECURITIES...............................................................................21
SECTION 4.01 Cash Distributions.........................................................................21
SECTION 4.02 Distributions Other Than Cash, Shares or Rights............................................22
SECTION 4.03 Distributions in Shares....................................................................22
SECTION 4.04 Rights.....................................................................................23
SECTION 4.05 Conversion of Foreign Currency.............................................................25
SECTION 4.06 Fixing of Record Date......................................................................25
SECTION 4.07 Voting of Deposited Securities and Attendance at Meetings..................................26
SECTION 4.08 Changes Affecting Deposited Securities.....................................................27
SECTION 4.09 Available Information; Reports.............................................................28
SECTION 4.10 Lists of Holders...........................................................................28
SECTION 4.11 Withholding................................................................................28
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.........................................................29
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.................................29
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the Company........................30
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company...............................31
SECTION 5.04 Resignation and Removal of the Depositary..................................................32
SECTION 5.05 The Custodian..............................................................................32
SECTION 5.06 Reports, Notices and Other Communications..................................................33
SECTION 5.07 Distribution of Additional Shares, Rights, etc.............................................34
SECTION 5.08 Indemnification............................................................................35
SECTION 5.09 Charges of Depositary......................................................................36
SECTION 5.10 Retention of Depositary Documents..........................................................37
SECTION 5.11 Exclusivity................................................................................37
SECTION 5.12 Restricted Securities Owners...............................................................37
ARTICLE 6 AMENDMENT AND TERMINATION..............................................................................37
SECTION 6.01 Amendment..................................................................................37
SECTION 6.02 Termination................................................................................38
ARTICLE 7 MISCELLANEOUS..........................................................................................39
SECTION 7.01 Counterparts...............................................................................39
SECTION 7.02 No Third Party Beneficiaries...............................................................39
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SECTION 7.03 Severability...............................................................................39
SECTION 7.04 Holders and Beneficial Owners as Parties; Binding Effect...................................39
SECTION 7.05 Notices....................................................................................39
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of Process....................40
SECTION 7.07 Governing Law..............................................................................41
SECTION 7.08 Headings...................................................................................41
SECTION 7.09 Amendment and Restatement..................................................................41
EXHIBIT A Form of Receipt
EXHIBIT B Fee Schedule
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THIRD AMENDED AND RESTATED DEPOSIT AGREEMENT
THIRD AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of September
29, 2008, among (i) KB FINANCIAL GROUP INC., a company organized under the laws
of the Republic of Korea (herein called the Company), (ii) CITIBANK, N.A., a
national banking association organized under the laws of the United States of
America acting in its capacity as depositary, and any successor as depositary
hereunder (herein called the Depositary), (iii) all Holders and Beneficial
Owners from time to time of American Depositary Shares (all such capitalized
terms as hereinafter defined) issued hereunder, and (iv) Kookmin Bank, a company
organized under the laws of the Republic of Korea, joining in the execution of
this Deposit Agreement (as hereinafter defined) solely to amend the Original
Deposit Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Kookmin Bank and the Depositary (as hereinafter defined)
previously entered into the Original Deposit Agreement (as hereinafter defined)
pursuant to which American depositary shares of Kookmin Bank ("Kookmin ADSs")
were issued and outstanding; and
WHEREAS, pursuant to a comprehensive stock transfer (under Article
360-15 of the Korean Commercial Code), which has been approved by (i) the
stockholders of Kookmin Bank at an extraordinary general meeting of Kookmin Bank
shareholders held on August 25, 2008 and (ii) the applicable Korean government
entities, holders of Kookmin Bank shares will receive Shares (as hereinafter
defined) of the Company upon transferring their Kookmin Bank shares to the
Company in exchange for the Company's Shares; and
WHEREAS, as a result of the foregoing comprehensive stock transfer,
holders of Kookmin ADSs and Kookmin Bank global depositary shares will receive
ADSs (as hereinafter defined) upon surrender of their Kookmin ADSs and Kookmin
Bank global depositary shares to the Depositary; and
WHEREAS, the Company and Kookmin Bank desire to amend and restate
the Original Deposit Agreement to establish with the Depositary an American
Depositary Receipt facility that will be sponsored by the Company and is to
provide inter alia for the deposit of the Shares (as hereinafter defined) and
the creation of American Depositary Shares representing the Shares so deposited
and for the execution and delivery of American Depositary Receipts (as
hereinafter defined) evidencing such American Depositary Shares; and
WHEREAS, the Depositary is willing to act as the depositary for such
American Depositary Receipt facility upon the terms set forth in the Deposit
Agreement (as hereinafter defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the
terms of the Deposit Agreement are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
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 Affiliate.
The term "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
SECTION 1.02 Affiliated Owner.
The term "Affiliated Owner" of a Holder or Beneficial Owner shall
mean the spouse and certain relatives of such Holder or Beneficial Owner as
specified in the applicable laws of the Republic of Korea, any entity in which
such Holder or Beneficial Owner holds an interest of not less than 30%, any
entity or individual which holds an interest of not less than 30% in the capital
of such Holder or Beneficial Owner, and any other person which is treated as
such under the Articles of Incorporation of the Company and the applicable laws
of the Republic of Korea.
SECTION 1.03 American Depositary Share(s) and ADS(s).
The term "American Depositary Shares" and "ADSs" shall mean the
rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s) (as
hereinafter defined) the ADR(s) issued to evidence such ADSs. ADS(s) may be
issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by
ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.12. Unless otherwise specified in the Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as
the context may require. Each American Depositary Share shall represent the
right to receive one (1) Share, until there shall occur a distribution upon
Deposited Securities covered by Section 4.03 or a change in Deposited Securities
covered by Section 4.08 or otherwise with respect to which additional ADSs are
not issued, and thereafter each ADS shall represent the right to receive the
Shares or Deposited Securities specified in such Sections. Kookmin ADSs
outstanding under the Original Deposit Agreement as of the date hereof shall,
from and after the date hereof, represent the right to receive ADSs and will
need to be transferred to the Depositary in exchange for ADSs and only upon such
exchange, shall the Holder thereof be entitled to exercise the rights under this
Deposit Agreement.
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SECTION 1.04 Beneficial Owner.
The term "Beneficial Owner" shall mean, as to any ADS, any person or
entity who has a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial
Owner shall be able to exercise any right or receive any benefit hereunder
solely through the person who is the Holder of ADSs owned by such Beneficial
Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed
to be the Beneficial Owner of all the ADSs registered in his/her/its name.
Persons who own beneficial interests in the Kookmin ADSs issued under the terms
of the Original Deposit Agreement and outstanding as of the date hereof shall be
treated as Beneficial Owners of ADSs under the terms hereof only after the
surrender of the Kookmin ADSs to the Depositary by the registered holders of the
Kookmin ADSs in exchange for ADSs.
SECTION 1.05 Business Day.
The term "Business Day" shall mean any day on which both banks in
Korea and banks in New York, New York are not required or authorized by law to
close. The term "Business Day" as used in Section 2.09 shall mean any day on
which banks in New York, New York are not required or authorized by law to
close.
SECTION 1.06 Certificated ADSs.
The term "Certificated ADS(s)" shall have the meaning set forth in
Section 2.12.
SECTION 1.07 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
SECTION 1.08 Company.
The term "Company" shall mean KB Financial Group Inc., a company
organized and existing under the laws of the Republic of Korea, and its
successors.
SECTION 1.09 CSD.
The term "CSD" shall mean any institution authorized under the
applicable law to effect book-entry transfers of securities of Korean
corporations, which may include Korea Securities Depository.
SECTION 1.10 Custodian.
The term "Custodian" shall mean the principal Seoul, Korea office of
Korea Securities Depository, as agent of the Depositary for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05, as substitute
or additional custodian or custodians hereunder, as the context shall require
and shall also mean all of them collectively.
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SECTION 1.11 Deliver; Surrender.
(a) The term "deliver", when used with respect to Shares, shall refer,
where the context requires, to (i) an 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 Shares.
(b) The term "deliver", when used with respect to ADSs, shall mean (i) one
or more book-entry transfers of ADSs to an account or accounts at the DTC,
designated by the person entitled to such delivery or (ii) if requested by the
person entitled to such delivery, to delivery at the Principal Office of the
Depositary of one or more Receipts.
(c) The term "surrender", when used with respect to Receipts, shall mean
(i) one or more book-entry transfers of American Depositary Shares to the DTC
account of the Depositary or (ii) surrender to the Depositary at its Principal
Office of one or more Receipts.
SECTION 1.12 Deposit Agreement.
The term "Deposit Agreement" shall mean this Third Amended and
Restated Deposit Agreement, including the Exhibits hereto, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.13 Depositary; Principal Office.
The term "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of the Deposit Agreement, and any
successor depositary hereunder. The term "Principal Office" when used with
respect to the Depositary shall mean the principal office of the Depositary,
which at the date of this Deposit Agreement is located at 000 Xxxxxxxxx Xxxxxx,
00xx Xx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
SECTION 1.14 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited (including as contemplated under
Section 2.09) under this Deposit Agreement and any and all other securities,
property and cash received by the Depositary or the Custodian in respect or in
lieu of such deposited Shares and at such time held hereunder, subject as to
cash to the provisions of Section 4.05. Notwithstanding anything else contained
herein, the securities, property and cash held by the Custodian in respect of
Kookmin ADSs outstanding as of the date hereof under the Original Deposit
Agreement and defined as "Deposited Securities" thereunder shall, for all
purposes from and after the date hereof, be considered to be, and treated as,
Deposited Securities hereunder in all respects. The collateral delivered in
connection with Pre-Release described in Section 2.09 shall not constitute
Deposited Securities.
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SECTION 1.15 Dollars; Won.
The term "Dollars" shall mean the lawful currency of the United
States. The term "Won" shall mean the lawful currency of the Republic of Korea.
SECTION 1.16 DTC.
The term "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.17 DTC Participant.
The term "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC. A
DTC Participant may or may not be a Beneficial Owner. If a DTC Participant is
not the Beneficial Owner of the ADSs credited to its account at DTC, or of the
ADSs in respect of which the DTC Participant is otherwise acting, such DTC
Participant shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owner(s) of the ADSs credited to
its account at DTC or in respect of which the DTC Participant is so acting.
SECTION 1.18 Foreign Currency.
The term "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.19 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.20 Original Deposit Agreement.
The term "Original Deposit Agreement" shall mean the second amended
and restated deposit agreement, dated as of November 21, 2006, by and among
Kookmin Bank, the Depositary, and holders and beneficial owners of American
depositary shares issued thereunder.
SECTION 1.21 Holder.
The term "Holder" shall mean the person in whose name an ADSs is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADS(s) registered in its name, such person shall
be deemed, for all purposes hereunder, to have all requisite authority to act on
behalf of the Beneficial Owners of the ADSs registered in its name. Persons who
are registered holders of Kookmin ADSs issued under the terms of the Original
Deposit Agreement and outstanding as of the date hereof shall be treated as
Holders of ADSs under the terms hereof only after the surrender of the Kookmin
ADSs to the Depositary by such registered holder in exchange for ADSs.
5
SECTION 1.22 Kookmin ADSs.
The term "Kookmin ADSs" shall have the meaning set forth in the
recitals to this Deposit Agreement.
SECTION 1.23 Pre-Release.
The term "Pre-Release" shall have the meaning set forth in Section
2.09.
SECTION 1.24 Receipt(s), American Depositary Receipt(s) and ADR(s).
The term "Receipt(s)", "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit Agreement. An ADR
may evidence any number of ADSs and may, in the case of ADSs held through a
central depository such as DTC, be in the form of a "Balance Certificate."
Notwithstanding anything else contained herein or therein, the American
depositary receipts issued and outstanding under the terms of the Original
Deposit Agreement shall, from and after the date hereof, evidence the right to
receive ADSs and will need to be transferred to the Depositary in exchange for
ADSs and only upon such exchange shall the Holder thereof be entitled to
exercise the rights under this Deposit Agreement.
SECTION 1.25 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 to register Receipts and transfers of Receipts and to countersign
Receipts as herein provided and shall include any co-registrar appointed by the
Depositary. Each Registrar (other than the Depositary) appointed pursuant to the
Deposit Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
the Deposit Agreement.
SECTION 1.26 Restricted Securities.
The term "Restricted Securities", shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, Korea, or under a shareholder agreement or the
Articles of Incorporation of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective resale
registration statement, or (b) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs are not, when held by such person(s), Restricted Securities.
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SECTION 1.27 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.28 Shares.
The term "Shares" shall mean common shares, par value Won 5,000 per
share, of the Company in registered form, heretofore validly issued and
outstanding and fully paid and nonassessable or hereafter validly issued,
subscribed and outstanding and fully paid and nonassessable and may, if the
Depositary so agrees after consultation with the Company, include evidence of
the right to receive Shares; provided, that in no event shall such Shares
include evidence of right to receive Shares with respect to which full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.08,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall, to the extent not prohibited by law, thereafter mean the
successor securities resulting from such change in par value, split-up or
consolidation or such other reclassification or such exchange or conversion.
SECTION 1.29 Uncertificated ADSs.
The term "Uncertificated ADS(s)" shall have the meaning set forth in
Section 2.12.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs which
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. ADRs may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to the Deposit Agreement,
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in the Deposit Agreement or required by law. ADRs shall
be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced
7
thereby shall be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company,
unless such ADR shall have been so dated, signed, countersigned and registered
(other than an American depositary receipt issued and outstanding as of the date
hereof under the terms of the Original Deposit Agreement which from and after
the date hereof becomes subject to the terms of the Deposit Agreement in all
respects). ADRs bearing the facsimile signature of a duly-authorized signatory
of the Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such ADR by the Depositary.
The ADRs shall bear a CUSIP number that is different from any CUSIP number that
was, is or may be assigned to any depositary receipts previously or subsequently
issued pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADRs outstanding hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in the
text thereof, such legends or recitals not inconsistent with the provisions of
the Deposit Agreement or with any provisions of the Company's Articles of
Incorporation or Korean law as (i) may be necessary to enable the Depositary and
the Company to perform their respective obligations hereunder, (ii) may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) may be necessary to indicate any special limitations or restrictions to
which any particular ADRs or ADSs are subject by reason of the date of issuance
of the Deposited Securities or otherwise, or (iv) may be required by any
book-entry system in which the ADSs are held. Holders and Beneficial Owners
shall be deemed, for all purposes, to have notice of, and to be bound by, the
terms and conditions of the legends set forth, in the case of Holders, on the
ADR registered in the name of the applicable Holders or, in the case of
Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that, in the case of Certificated ADSs, such ADR
has been properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of an ADS (that is, the person in whose name an ADS is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under the Deposit Agreement or any ADR to any holder
or any beneficial owner unless, in the case of a holder of ADSs, such holder is
the Holder registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner, or the Beneficial Owner's
representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make all necessary
arrangements for the acceptance of the ADSs into DTC. All ADSs held through DTC
will be registered in the name of the nominee for DTC (currently "Cede & Co.").
As such, the nominee for DTC will be the only "Holder" of all ADSs held through
DTC. Unless issued by the Depositary as Uncertificated ADSs, the ADSs registered
in the name of Cede & Co. will be evidenced by a single ADR in the form of a
8
"Balance Certificate," which will provide that it represents the aggregate
number of ADSs from time to time indicated in the records of the Depositary as
being issued hereunder and that the aggregate number of ADSs represented thereby
may from time to time be increased or decreased by making adjustments on such
records of the Depositary and of DTC or its nominee as hereinafter provided.
Citibank, N.A. (or such other entity as is appointed by DTC or its nominee) may
hold the "Balance Certificate" as custodian for DTC. Each Beneficial Owner of
ADSs held through DTC must rely upon the procedures of DTC and the DTC
Participants to exercise or be entitled to any rights attributable to such ADSs.
The DTC Participants shall for all purposes be deemed to have all requisite
power and authority to act on behalf of the Beneficial Owners of the ADSs held
in the DTC Participants' respective accounts in DTC and the Depositary shall for
all purposes be authorized to rely upon any instructions and information given
to it by DTC Participants on behalf of Beneficial Owners of ADSs. So long as
ADSs are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the ADSs registered in the name of the nominee for DTC
will be shown on, and transfers of such ownership will be effected only through,
records maintained by (i) DTC or its nominee (with respect to the interests of
DTC Participants), or (ii) DTC Participants or their nominees (with respect to
the interests of clients of DTC Participants).
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of the Deposit Agreement and
applicable laws and regulations, Shares (other than Restricted Securities) may
be deposited by (a) the Company or an Affiliate (subject in each case to the
terms of Section 5.07) or (b) any person other than the Company or Affiliate
(including the Depositary in its individual capacity) at any time, whether or
not the transfer books of the Company or the Share Registrar, if any, are
closed, by Delivery of the Shares to the Custodian. Every deposit of Shares
shall be accompanied by the following: (A) (i) in the case of Shares represented
by certificates issued in registered form, appropriate instruments of transfer
or endorsement, in a form satisfactory to the Custodian and (ii) in the case of
Shares delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been given to
cause such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, the Depositary's fees and related charges) and
evidence of such payments (including, without limitation, stamping or otherwise
marking such Shares by way of receipt) as may be required by the Depositary, the
Custodian or the Company in accordance with the provisions of the Deposit
Agreement and applicable law, (C) if the Depositary so requires, a written order
directing the Depositary to issue and deliver to, or upon the written order of,
the person(s) stated in such order the number of ADSs representing the Shares so
deposited, (D) evidence satisfactory to the Depositary that all necessary
approvals have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in Korea, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument satisfactory
to the Depositary or the Custodian which provides for the prompt transfer by any
person in whose name the Shares are or have been recorded to the Custodian of
any distribution, or right to subscribe for additional Shares or to receive
other property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be satisfactory to the Depositary or the
Custodian and (ii) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Depositary, the Custodian or any nominee.
9
Notwithstanding the foregoing, the Depositary shall not accept
Shares for deposit hereunder (except for deposits pursuant to Sections 4.02,
4.03, 4.04 or 4.11) unless (i) the Company shall have consented to such deposit
or (ii) the Company shall have notified the Depositary that the consent required
under (i) is no longer required under applicable laws and regulations. The
Company hereby consents to any deposit to the extent that, after giving effect
to such deposit, the number of Shares on deposit hereunder does not exceed a
number of Shares as determined from time to time by the Company (which number
shall at no time be less than 100,000,000 Shares), unless such deposit is
prohibited by applicable law or would violate the Company's Articles of
Incorporation. In addition, the Depositary shall not accept Shares for deposit
hereunder if it has been notified by the Company that the Company (i) blocks
such deposit to prevent violation of the Company's Articles of Incorporation or
applicable law or (ii) has restricted transfer of those Shares to the Depositary
to comply with the ownership restrictions referred to in Section 3.05. The
Company shall notify the Depositary and the Custodian in writing with respect to
any such restrictions on transfer of its Shares for deposit hereunder.
Without limiting any other provision of the Deposit Agreement, the
Depositary shall not knowingly accept for deposit and shall not be required to
accept for deposit or maintain on deposit with the Custodian (a) any Restricted
Securities except as contemplated by Section 2.13 nor (b) any fractional Shares
or fractional Deposited Securities nor (c) a number of Shares or Deposited
Securities which upon application of the ADS to Shares ratio would give rise to
fractional ADSs. No Shares shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
Korea and any necessary approval has been granted by any applicable governmental
body in Korea, if any. The Depositary may issue ADSs against evidence of rights
to receive Shares from the Company, any agent of 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 by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit and shall not be required to accept for deposit or
maintain on deposit with the Custodian under the Deposit Agreement (A) any
Shares or other securities required to be registered under the provisions of the
Securities Act, unless (i) a registration statement is in effect as to such
Shares or other securities or (ii) the deposit is made upon terms contemplated
in Section 2.13, or (B) any Shares or other securities the deposit of which
would violate any provisions of the Articles of Incorporation of the Company.
The Depositary and the Custodian shall refuse to accept for deposit whenever
notified, as hereafter provided, that the Company has restricted transfer of the
Shares to comply with any ownership restrictions referred to in Section 3.05 or
under applicable laws. The Company shall notify the Depositary and Custodian in
writing with respect to any such restrictions on transfer of its Shares for
deposit under the Deposit Agreement or transfer of ADSs to any Holder. For
purposes of the foregoing sentences, the Depositary shall be entitled to rely
10
upon representations and warranties made or deemed made pursuant to the Deposit
Agreement and shall not be required to make any further investigation. The
Depositary will comply with written instructions of the Company (received by the
Depositary reasonably in advance) not to accept for deposit hereunder any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with the securities laws of the United States.
At the request, 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 transferred electronically or through book-entry
or that irrevocable instructions have been given to cause the transfer of such
Shares to the account of 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.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates, if any, or other documents of title, for Shares to be deposited,
together with the other instruments herein specified, for the purpose of
forwarding such Share certificates, if any, or other documents of title, to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates,
if any, other documents of title, for Shares to be deposited hereunder, together
with the other documents above specified, such Custodian shall, as soon as
transfer and recordation can be accomplished, present such evidence of ownership
to the Company or the Foreign Registrar or the relevant CSD, if applicable, for
transfer and recordation of the Shares being deposited on the shareholders'
register or the books of the CSD, if applicable, in the name of the Depositary
or, subject to applicable law, its nominee at the cost and expense of the person
making such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory to it of such registration.
Deposited Securities shall, subject to applicable law, be held by
the Depositary or by a Custodian for the account and to the order of the
Depositary or at such other place or places, as the Depositary shall determine.
SECTION 2.03 Issuance of ADSs.
Upon receipt by any Custodian of any deposit pursuant to Section
2.02 hereunder (and in addition, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence that (i) if the shareholders'
register of the Company or the Foreign Registrar, if applicable, are open, that
any Deposited Securities have been properly recorded upon the shareholders'
register of the Company or the Foreign Registrar, if applicable, in the name of
the Depositary or, subject to applicable law, its nominee or (ii) where such
deposit is made by the entry in the books of a CSD, from such CSD that any
Deposited Securities have been recorded upon the books of such CSD in the name
of the Depositary 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 the person or persons to whom or upon whose
written order an ADS or ADSs are deliverable in respect thereof and the number
of ADSs to be evidenced thereby. Such notification shall be made by letter,
11
cable, telex, SWIFT message or, at the risk and expense of the person making the
deposit, by facsimile or other means of electronic transmission. Upon receiving
such notice from such Custodian, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall, as promptly as practicable, issue
and deliver, to or upon the order of such registered in the name or name of
person or persons the applicable ADSs, requested by such person or persons, but
only upon payment to the Depositary of the fees of the Depositary for the
execution and delivery of such Receipt or Receipts as provided in Section 5.09,
and of all taxes and governmental charges and fees, if any, payable in
connection with such deposit and the transfer of the Deposited Securities.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Holder in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America; provided, however, that the Depositary
shall refuse to register any transfer of Receipts if it has been notified by the
Company that such registration would result in a violation of the ownership
restrictions referred to in Section 3.05 or any other applicable law or the
Company's Articles of Incorporation. Thereupon the Depositary shall execute a
new Receipt or Receipts 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 Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of ADSs requested,
evidencing the same aggregate number of ADSs as the Receipt or Receipts
surrendered.
The Depositary may, upon at least twenty (20) days' written notice
to the Company and written consent of the Company, such consent not to be
unreasonably withheld, appoint one or more co-transfer agents, for the purpose
of effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary. Such co-transfer agents may be removed and substitutes may be
appointed by the Depositary, with written consent of the Company, such consent
not to be unreasonably withheld. Each co-transfer agent appointed under this
Section 2.04 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of the Deposit Agreement.
SECTION 2.05 Surrender of ADSs and Withdrawal of Deposited Securities.
The Holder of ADSs shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs upon satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
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Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.09 and Exhibit B)
have been paid, subject, however, in each case, to the terms and conditions of
the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the
Company's Articles of Incorporation and of any applicable laws and the rules of
CSD, and to any provisions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so
cancelled, of the Articles of Incorporation of the Company, of any applicable
laws and of the rules of CSD, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause the appropriate
whole number of Shares to be Delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent not
prohibited by law) any cash or other property (other than securities) held by
the Custodian in respect of the Deposited Securities represented by such ADSs to
the Depositary for delivery at the Principal 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.
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Neither the Depositary nor the Custodian shall deliver Shares, by
physical delivery, book entry or otherwise (other than the Company or its agent
as contemplated by Section 4.08), or otherwise permit Shares to be withdrawn
from the facility created hereby, except upon the surrender and cancellation of
ADSs.
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender
of ADSs.
As a condition precedent to the issuance and delivery, registration
of transfers or surrender of any ADSs, or split-up or combination of Receipts,
the delivery of any distribution thereon, or withdrawal of any Deposited
Securities, the Company, the Depositary, the Custodian or the Registrar may
require payment from the depositor of Shares or the presenter of the ADS of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax,
charge or fees and charges of the Depositary with respect to Shares being
deposited or withdrawn as provided in Exhibit B hereto) and payment of any
applicable fees as provided herein and in Exhibit B hereto, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.06.
The delivery of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfer
of outstanding ADSs or the combination or split-up of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, or under any
provision of this Deposit Agreement, or for any other reason, subject to the
provisions of the following sentence.
Notwithstanding any other provision of this Deposit Agreement or any
Receipts to the contrary, the surrender of outstanding ADSs and withdrawal of
Deposited Securities may be suspended only for reasons that may at the time be
specified in paragraph I(A)(1) of the General Instructions to Form F-6 under the
Securities Act of 1933, or any successor provision thereto. Without limitation
of the foregoing, the Depositary shall not knowingly accept for deposit under
this Deposit Agreement any Shares which would be required to be registered under
the provisions of the Securities Act for the public offer and sale thereof in
the United States unless a registration statement is in effect as to such Shares
for such offer and sale. The Depositary shall comply with written instructions
of the Company that the Depositary shall not accept for deposit hereunder any
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with the securities laws in the United
States.
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SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute, register and deliver a new Receipt of like tenor
at the expense of the Holder (a) in the case of a mutilated Receipt, in exchange
of and substitution for such mutilated Receipt upon cancellation thereof, or (b)
in the case of a destroyed, lost or stolen Receipt, in lieu of and in
substitution for such destroyed, lost, or stolen Receipt, after the Holder
thereof (i) has submitted to the Depositary a written request for such exchange
and substitution before the Depositary has notice that the Receipt has been
acquired by a bona fide purchaser, (ii) has provided such security or indemnity
(including an indemnity bond) as may be required by the Depositary to save it
and any of its agents harmless, and (iii) has satisfied any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
reasonably satisfactory to the Depositary of such destruction, loss or theft of
such Receipt, the authenticity thereof and the Holder's ownership thereof.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Canceled Receipts shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose. The Depositary is
authorized to destroy Receipts so cancelled, subject to Section 2.10.
Any ADSs held in book-entry form (i.e., through accounts at DTC)
shall be deemed canceled when the Depositary causes the number of ADSs evidenced
by the Balance Certificate to be reduced by the number of ADSs surrendered
(without the need to physically destroy the Balance Certificate).
SECTION 2.09 Pre-Release Transactions.
Unless requested by the Company to cease doing so, the Depositary
may, to the extent permitted by applicable law, notwithstanding Section 2.03
hereof, issue and deliver ADSs prior to the receipt of Shares pursuant to
Section 2.02 ("Pre-Release"). The Depositary may, pursuant to Section 2.05,
deliver Shares upon the surrender and cancellation of ADSs which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such ADSs has been Pre-Released.
The Depositary may receive ADSs in lieu of Shares in satisfaction of a
Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation and agreement from the person to whom ADSs are to be delivered
that such person, or its customer, (i) owns the Shares or ADSs to be remitted,
as the case may be, (ii) assigns all beneficial right, title and interest in
such Shares or ADSs, as the case may be, to the Depositary in its capacity as
such and for the benefit of the Holders, and (iii) will not take any action with
respect to such Shares or ADSs, as the case may be, that is inconsistent with
the transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or ADSs, as the case may be, other than in
satisfaction of such Pre-Release), (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) Business
Days' notice, and (d) subject to such further indemnities and credit regulations
15
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
pursuant to an issuance of ADSs under Section 2.02 above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems reasonably appropriate and may, with the prior written
consent of the Company, change such limit for purposes of general application.
The Depositary will also set limits with respect to the number of Pre-Released
ADSs involved in transactions to be done hereunder with any one person on a
case-by-case basis as it deems appropriate. The collateral referred to in clause
(b) above shall be held by the Depositary for the benefit of the Holders as
security for the performance of the obligations to deliver Shares or Receipts,
as the case may be, set forth in clause (a) above (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain or cause its agents to maintain
records of all ADSs surrendered and Deposited Securities withdrawn under Section
2.05, of substitute Receipts delivered under Section 2.07, and of cancelled or
destroyed Receipts under Section 2.08, in keeping with procedures ordinarily
followed by stock transfer agents located in The City of New York or as required
by the laws or regulations governing the Depositary. Prior to destroying any
such records, the Depositary will notify the Company and will turn such records
over to the Company upon its request
SECTION 2.11 [Intentionally Omitted]
SECTION 2.12 Certificated/Uncertificated ADSs.
Notwithstanding any other provision of the Deposit Agreement, the
Depositary may, at any time and from time to time, issue ADSs that are not
evidenced by ADRs (such ADSs, the "Uncertificated ADS(s)" and the ADS(s)
evidenced by ADR(s), the "Certificated ADS(s)"). When issuing and maintaining
Uncertificated ADS(s) under the Deposit Agreement, the Depositary shall at all
times be subject to (i) the standards applicable to registrars and transfer
agents maintaining direct registration systems for equity securities in New York
and issuing uncertificated securities under New York law, and (ii) the terms of
New York law applicable to uncertificated equity securities. Uncertificated ADSs
shall not be represented by any instruments but shall be evidenced by
registration in the books of the Depositary maintained for such purpose. Holders
of Uncertificated ADSs that are not subject to any registered pledges, liens,
restrictions or adverse claims of which the Depositary has notice at such time,
shall at all times have the right to exchange the Uncertificated ADS(s) for
Certificated ADS(s) of the same type and class, subject in each case to
applicable laws and any rules and regulations the Depositary may have
established in respect of the Uncertificated ADSs. Holders of Certificated ADSs
shall, if the Depositary maintains a direct registration system for the ADSs,
have the right to exchange the Certificated ADSs for Uncertificated ADSs upon
(i) the due surrender of the Certificated ADS(s) to the Depositary for such
purpose and (ii) the presentation of a written request to that effect to the
16
Depositary, subject in each case to (a) all liens and restrictions noted on the
ADR evidencing the Certificated ADS(s) and all adverse claims of which the
Depositary then has notice, (b) the terms of the Deposit Agreement and the rules
and regulations that the Depositary may establish for such purposes hereunder,
(c) applicable law, and (d) payment of the Depositary fees and expenses
applicable to such exchange of Certificated ADS(s) for Uncertificated ADS(s).
Uncertificated ADSs shall in all respects be identical to Certificated ADS(s) of
the same type and class, except that (i) no ADR(s) shall be, or shall need to
be, issued to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall,
subject to the terms of the Deposit Agreement, be transferable upon the same
terms and conditions as uncertificated securities under New York law, (iii) the
ownership of Uncertificated ADS(s) shall be recorded on the books of the
Depositary maintained for such purpose and evidence of such ownership shall be
reflected in periodic statements provided by the Depositary to the Holder(s) in
accordance with applicable New York law, (iv) the Depositary may from time to
time, upon notice to the Holders of Uncertificated ADSs affected thereby,
establish rules and regulations, and amend or supplement existing rules and
regulations, as may be deemed reasonably necessary to maintain Uncertificated
ADS(s) on behalf of Holders, provided that (a) such rules and regulations do not
conflict with the terms of the Deposit Agreement and applicable law, and (b) the
terms of such rules and regulations are readily available to Holders upon
request, (v) the Uncertificated ADS(s) shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose against
the Depositary or the Company unless such Uncertificated ADS(s) is/are
registered on the books of the Depositary maintained for such purpose, (vi) the
Depositary may, in connection with any deposit of Shares resulting in the
issuance of Uncertificated ADSs and with any transfer, pledge, release and
cancellation of Uncertificated ADSs, require the prior receipt of such
documentation as the Depositary may deem reasonably appropriate, and (vii) upon
termination of the Deposit Agreement, the Depositary shall not require Holders
of Uncertificated ADSs to affirmatively instruct the Depositary before remitting
proceeds from the sale of the Deposited Securities represented by such Holders'
Uncertificated ADSs under the terms of Section 6.02 of the Deposit Agreement.
When issuing ADSs under the terms of the Deposit Agreement, including, without
limitation, issuances pursuant to Sections 2.03, 4.02, 4.03, 4.04 and 4.08, the
Depositary may in its discretion determine to issue Uncertificated ADSs rather
than Certificated ADSs, unless otherwise specifically instructed by the
applicable Holder to issue Certificated ADSs. All provisions and conditions of
the Deposit Agreement shall apply to Uncertificated ADSs to the same extent as
to Certificated ADSs, except as contemplated by this Section 2.12. The
Depositary is authorized and directed to take any and all actions and establish
any and all procedures deemed reasonably necessary to give effect to the terms
of this Section 2.12. Any references in the Deposit Agreement or any ADR(s) to
the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the context
otherwise requires, include Certificated ADS(s) and Uncertificated ADS(s).
Except as set forth in this Section 2.12 and except as required by applicable
law, the Uncertificated ADSs shall be treated as ADSs issued and outstanding
under the terms of the Deposit Agreement. In the event that, in determining the
rights and obligations of parties hereto with respect to any Uncertificated
ADSs, any conflict arises between (a) the terms of the Deposit Agreement (other
than this Section 2.12) and (b) the terms of this Section 2.12, the terms and
conditions set forth in this Section 2.12 shall be controlling and shall govern
the rights and obligations of the parties to the Deposit Agreement pertaining to
the Uncertificated ADSs.
17
SECTION 2.13 Restricted ADSs.
The Depositary shall, at the request and expense of the Company,
establish procedures enabling the deposit hereunder of Shares that are
Restricted Securities in order to enable the holder of such Shares to hold its
ownership interests in such Restricted Shares in the form of ADSs issued under
the terms hereof (such Shares, "Restricted Shares"). Upon receipt of a written
request from the Company to accept Restricted Shares for deposit hereunder, the
Depositary agrees to establish procedures permitting the deposit of such
Restricted Shares and the issuance of ADSs representing such deposited
Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs evidencing
such Restricted ADSs, the "Restricted ADRs"). The Company shall assist the
Depositary in the establishment of such procedures and agrees that it shall take
all reasonable steps necessary and satisfactory to the Depositary to insure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by the Deposit Agreement and
(ii) an opinion of counsel reasonably satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is,
and the Restricted ADSs evidenced thereby are, transferable by the Holder
thereof under applicable securities laws and the transfer restrictions contained
in the legend set forth on the Restricted ADR presented for transfer. Except as
set forth in this Section 2.13 and except as required by applicable law, the
Restricted ADRs and the Restricted ADSs evidenced thereby shall be treated as
ADRs and ADSs issued and outstanding under the terms of the Deposit Agreement.
In the event that, in determining the rights and obligations of parties hereto
with respect to any Restricted ADSs, any conflict arises between (a) the terms
of the Deposit Agreement (other than this Section 2.13) and (b) the terms of (i)
this Section 2.13 or (ii) the applicable Restricted ADR, the terms and
conditions set forth in this Section 2.13 and of the Restricted ADR shall be
controlling and shall govern the rights and obligations of the parties to the
Deposit Agreement pertaining to the deposited Restricted Shares, the Restricted
ADSs and Restricted ADRs. If the Restricted ADRs, the Restricted ADSs and the
Restricted Shares cease to be Restricted Securities, the Depositary, upon
receipt of (x) an opinion of counsel reasonably satisfactory to the Depositary
setting forth, inter alia, that the Restricted ADRs, the Restricted ADSs and the
Restricted Shares are not as of such time Restricted Securities, and (y)
instructions from the Company to remove the restrictions applicable to the
Restricted ADRs, the Restricted ADSs and the Restricted Shares, shall (i)
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eliminate the distinctions and separations between the applicable Restricted
Shares held on deposit under this Section 2.13 and the other Shares held on
deposit under the terms of the Deposit Agreement that are not Restricted Shares,
(ii) treat the newly unrestricted ADRs and ADSs on the same terms as, and fully
fungible with, the other ADRs and ADSs issued and outstanding under the terms of
the Deposit Agreement that are not Restricted ADRs or Restricted ADSs, (iii)
take all actions necessary to remove any distinctions, limitations and
restrictions previously existing under this Section 2.13 between the applicable
Restricted ADRs and Restricted ADSs, respectively, on the one hand, and the
other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs,
respectively, on the other hand, including, without limitation, by making the
newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion
in the applicable book-entry settlement systems.
ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder or Beneficial
Owner of ADSs may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
payment of applicable Korean or other taxes or other governmental charges, legal
or beneficial ownership of ADSs, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of this Deposit
Agreement or the Receipts, or such information relating to the registration on
the shareholders' register of the Company, a CSD or the Foreign Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
require by written request to the Depositary. The Depositary may withhold the
delivery or registration of transfer of any ADSs or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or information is filed or
such certificates are executed or such representations and warranties are made.
The Depositary shall from time to time advise the Company of the availability of
any such proofs, information, certificates or other representations and
warranties and shall provide copies thereof to the Company as promptly as
practicable upon request by the Company, unless such disclosure is prohibited by
law.
SECTION 3.02 Liability of Holders and Beneficial Owners for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt, ADSs or any Deposited Securities represented by ADSs,
such tax or other governmental charge shall be payable by the Holder or
Beneficial Owner of such ADSs to the Depositary. The Company, the Custodian
and/or the Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer of ADSs, register the split-up or combination of ADRs and the
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withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
SECTION 3.03 Representations and Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate,
if any, or other documents of title, therefor are validly issued, fully paid and
nonassessable and legally obtained by such person, 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. Every such
person shall also be deemed to represent that the Shares presented for deposit
are not, and ADSs representing such Shares would not be, Restricted Securities
(except as contemplated in Section 2.13 of this Deposit Agreement) and the
Shares presented for deposit have not been stripped of any rights or
entitlements and are free and clear of any lien, encumbrance, security interest,
charge, mortgage or adverse claim. Such representations and warranties shall
survive the deposit and withdrawal of Shares, the issuance and cancellation of
ADSs in respect thereof and the transfer of such ADSs. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.04 Disclosure of Interests.
The Company 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 ADSs and regarding the identity of any other
persons then or previously interested in such ADSs 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 best efforts
that are reasonable under the circumstances 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 ADSs, 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 transfers of the Shares where such transfer
might result in ownership of Shares exceeding the limits under the Articles of
Incorporation of the Company or applicable laws, or where such transfer would
result in a deposit hereunder which is not permitted under Section 2.02. The
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Company may also restrict, in such manner as it deems appropriate, transfers of
the ADSs where such transfer may cause the total number of Shares represented by
the ADSs beneficially owned by a single Holder or Beneficial Owner, when
aggregated with all other Shares beneficially owned by such Holder or Beneficial
Owner (including Shares beneficially owned by Affiliated Owners of such Holder
or Beneficial Owner), to exceed four (4) percent of the aggregate number of
shares with voting rights of the Company issued and outstanding, or any other
limits under the Articles of Incorporation of the Company or 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 the limitation set forth in the second sentence of this Section 3.05,
including but not limited to a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law.
Notwithstanding anything in this Deposit Agreement to the contrary,
under no circumstances shall the restrictions on ownership set forth in this
Section 3.05 authorize or require the Depositary or the Company to seek to void,
nullify or rescind any sale or transfer of ADSs effected over the New York Stock
Exchange.
SECTION 3.06 Reporting Obligations and Regulatory Approvals.
Applicable laws and regulations may require holders and beneficial
owners of Shares, including the Holders and Beneficial Owners of ADSs, to
satisfy reporting requirements and obtain regulatory approvals in certain
circumstances. Holders and Beneficial Owners of ADSs are solely responsible for
determining and complying with such reporting requirements and obtaining such
approvals. Each Holder and each Beneficial Owner hereby agrees to make such
determination, file such reports, and obtain such approvals to the extent and in
the form required by applicable laws and regulations as in effect from time to
time. None of the Depositary, the Custodian, the Company or any of their
respective agents or affiliates shall be required to take any actions whatsoever
on behalf of Holders or Beneficial Owners of ADSs to determine or satisfy such
reporting requirements or obtain such regulatory approvals under applicable laws
and regulations.
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary, or on its behalf, its agent, shall receive
any cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, or shall cause its agent to, as promptly as practicable after
its receipt of such dividend or distribution (unless otherwise prohibited or
prevented by law), subject to the provisions of Section 4.05, convert such
dividend or distribution into Dollars and shall, as promptly as practicable,
distribute the amount thus received (net of the expenses of the Depositary as
provided in Section 5.09) to the Holders entitled thereto, in proportion to the
21
number of ADSs representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Company or an agent of the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes or other governmental charges, the amount distributed to the
Holder of ADSs representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amounts as can be
distributed without distributing to any Holder a fraction of one cent. Any such
fractional amounts shall be rounded to the nearest whole cent and so distributed
to Holders entitled thereto. The Company or its agent or the Depositary or its
agent, as appropriate, shall remit to the appropriate governmental authority or
agency in Korea or any other relevant jurisdiction all amounts withheld and
owning to such authority or agency. The Depositary shall forward as promptly as
practicable 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.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall, as promptly as practicable,
cause the securities or property received by it to be distributed to the Holders
entitled thereto, in proportion to the number of ADSs 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 applicable law; provided, however, that if in the
opinion of the Depositary such distribution cannot be made proportionately among
the Holders entitled thereto, or if for any other reason (including, but not
limited to, any requirement that the Company or an agent of the Company, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or that such securities be registered under the Securities
Act of 1933 in order to be distributed to Holders) the Depositary deems such
distribution not to be practicable, 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, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.09 and any expenses in connection with such
sale) shall be distributed by the Depositary to the Holders entitled thereto as
in the case of a distribution received in cash pursuant to Section 4.01;
provided, further, that no distribution to Holders pursuant to this Section 4.02
shall be unreasonably delayed by any action of the Depositary or any of its
agents. The Depositary may withhold any distribution of securities under this
Section 4.02 if it has not received reasonably satisfactory assurances from the
Company that the distribution does not require registration under the Securities
Act of 1933.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request, distribute, as promptly as practicable, to the
Holders of outstanding ADSs entitled thereto, additional ADSs representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of ADSs, including the withholding of any tax or other
22
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.09. In lieu of delivering
fractional ADSs in any such case, the Depositary shall sell the amount of Shares
or ADSs represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01; provided, however, that no distribution to Holders pursuant to this
Section 4.03 shall be unreasonably delayed by any action of the Depositary or
any of its agents. If additional ADSs are not so distributed, each ADS shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
SECTION 4.04 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, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Holders or in disposing of such rights on
behalf of any Holders and making the net proceeds available in Dollars to such
Holders or, if by the terms of such rights offering or for any other reason it
would be unlawful or impracticable for the Depositary to either make such rights
available to any Holders or dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines that it
is lawful and practicable to make such rights available to all or certain
Holders but not to other Holders, the Depositary may, and at the request of the
Company shall, distribute to any Holder to whom it determines the distribution
to be lawful and practicable, in proportion to the number of ADSs held by such
Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed,
if a Holder requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the ADSs of such Holder hereunder, the
Depositary will make such rights available to such Holder upon written notice
from the Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Holder has
executed such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon instruction from such a Holder to
the Depositary to exercise such rights, pursuant to such warrants or other
instruments, upon payment by such Holder to the Depositary for the account of
such Holder of an amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, issue and deliver ADSs to
such Holder; provided, however, that in the case of a distribution pursuant to
the second paragraph of this Section, such deposit may be made, and depositary
23
shares may be delivered, under separate arrangements to be entered into between
the Company and the Depositary which provide for issuance of depositary receipts
which shall be legended in accordance with applicable United States laws and
shall be subject to the appropriate restrictions on sale, deposit, cancellation,
and transfer under applicable United States laws, including without limitation,
circumstances as provided in Section 2.13 of this Deposit Agreement.
A Holder or Beneficial Owner shall not be entitled to any rights to
subscribe for additional Shares if and to the extent that the number of Shares
represented by ADSs beneficially owned by such Holder or Beneficial Owner, when
aggregated with all other Shares beneficially owned by such Holder or Beneficial
Owner (including Shares beneficially owned by Affiliated Owners of such Holder
or Beneficial Owner), exceeds four (4) percent of the aggregated number of
shares with voting rights of the Company issued and outstanding.
If the Depositary determines that it is not lawful or practicable to
make such rights available to all or certain Holders, it may, and at the request
of the Company shall use its best efforts that are reasonable under the
circumstances to, sell the rights, warrants or other instruments in proportion
to the number of ADSs held by the Holders to whom it has determined it may not
lawfully or practicably make such rights available. The Depositary shall
allocate any net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09, any other expenses in connection with such sale and
all taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Holders otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Holders because of exchange restrictions or the date of
delivery of any Receipt or otherwise. Such proceeds shall be distributed in
accordance with Section 4.01 hereof. If such sale can be effected only with the
approval or license of the Korean government or any agency thereof, the
Depositary shall file as promptly as practicable such application for approval
or license; however, the Depositary shall be entitled to rely upon Korean local
counsel in such matters, which counsel shall be instructed to act as promptly as
possible.
Except as provided in the third preceding paragraph, the Depositary
will not offer rights to Holders unless both the rights and the securities to
which such rights relate are either exempt from the registration requirements of
the Securities Act of 1933 with respect to a distribution to all Holders or are
registered under the provisions of such Act. If a Holder of ADSs requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company, upon which the Depositary may rely, that such
distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holder in particular.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company shall have no obligation to prepare and file a registration
statement for any purpose.
24
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive 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 reasonable judgment of the
Depositary, pursuant to applicable law, be converted on a practicable basis into
Dollars and the resulting Dollars transferred to the United States, the
Depositary shall convert or cause to be converted as promptly as practicable, by
sale or in any other manner that it may determine in accordance with applicable
law, such Foreign Currency into Dollars and such Dollars shall be distributed as
promptly as practicable to the Holders entitled thereto or, if the Depositary
shall have distributed any rights, warrants or other instruments which entitle
the holders thereof to such Dollars, then to the holders of such rights,
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution or conversion may be made upon an averaged or other practicable
basis without regard to any distinctions among Holders on account of exchange
restrictions, the date of delivery of any Receipt or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of, or filing a report to, any government or agency thereof,
the Depositary shall, as promptly as practicable, file such application for such
approval or license, or such report, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its reasonable
judgment, pursuant to applicable law, any Foreign Currency received by the
Depositary or the Custodian is not convertible on a reasonable basis into
Dollars transferable to the United States, or if any approval or license of, or
acceptance of any report to, any government or agency thereof which is required
for such conversion is denied or in the opinion of the Depositary is not
obtainable; or if any such approval, license or acceptance is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary or Custodian to, or
in its discretion may hold such Foreign Currency uninvested and without
liability for interest thereon 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 of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
SECTION 4.06 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 ADS, or whenever the Depositary shall receive notice of any
25
meeting of holders of Shares or other Deposited Securities, the Depositary shall
fix a record date, which date shall either (x) be the same date as the record
date fixed by the Company, or (y) if different from the record date fixed by the
Company, be as near as is practicable to such record date (a) for the
determination of the Holders who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at, and to attend (without
voting or speaking), any such meeting or (iii) who shall be responsible for any
fee or charges assessed by the Depositary pursuant to this Deposit Agreement, or
(b) on or after the date on which each ADS will represent the changed number of
Shares. Subject to the provisions of Sections 4.01 through 4.05 and to the other
terms and conditions of this Deposit Agreement, the Holders on such record date
shall be entitled, as the case may be, 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 in proportion to the number of ADSs
held by them respectively and to give voting instructions and to attend such
meeting (without voting or speaking) and to act in respect of any other such
matter, or shall be responsible for such fee or charges.
SECTION 4.07 Voting of Deposited Securities and Attendance at Meetings.
Upon receipt of notice of any meeting or solicitation of proxies of
holders of Shares or other Deposited Securities, if requested in writing by the
Company, the Depositary shall, as soon as practicable thereafter, distribute to
the Holders a notice, the form of which notice shall be in the reasonable
discretion of the Depositary, which shall contain (a) such information as is
contained in such notice of meeting (or if requested by the Company a summary of
such information provided by the Company), (b) a statement that the Holders as
of the close of business on a specified record date will be entitled, subject to
any applicable provisions of Korean law and of the Articles of Incorporation of
the Company, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the integral number of Shares or other Deposited
Securities represented by their respective ADSs, and (c) a statement as to the
manner in which such instructions may be given. Upon the instruction of a Holder
on the record date, received on or before the date established by the Depositary
for such purpose, the Depositary shall vote or cause to be voted (or give a
proxy with respect to) the integral number of Shares or other Deposited
Securities represented by the ADSs evidenced by such Receipt in accordance with
the instructions set forth in such request. To the extent the Depositary does
not receive instructions from Holders on or prior to such date, the Depositary
shall vote or cause to be voted the Deposited Shares in the same manner and in
the same proportion as the holders of all other outstanding Shares vote their
Shares. The Depositary shall not vote (or give a proxy with respect to) Shares
or other Deposited Securities other than in accordance with such instructions or
as set forth in the immediately preceding sentences. A Holder acting on its own
behalf or on behalf of a Beneficial Owner shall not be entitled to give any
instructions with respect to voting rights associated with ADSs held by such
Holder or Beneficial Owner if and to the extent the total number of Shares
represented by ADSs beneficially owned by such Holder or Beneficial Owner, when
aggregated with all other Shares beneficially owned by such Holder or Beneficial
Owner (including Shares beneficially owned by Affiliated Owners of such Holder
or Beneficial Owner), exceeds four (4) percent of the total number of Shares
with voting rights of the Company outstanding or any other limit under the
Company's Articles of Incorporation or applicable law with respect to which the
Company may, from time to time, notify the Depositary. The Company and the
Depositary may take any and all action necessary or desirable to enforce the
restrictions on the exercise of voting rights set forth in the preceding
sentence.
26
Subject to the rules of any securities exchange on which ADSs or the
Deposited Securities represented thereby are listed, the Depositary shall, if
requested in writing by the Company, deliver, at least three (3) Business Days
prior to the date of such meeting, to the Company, copies of all written
instructions or written evidence of instruction given via different means
received from Holders in accordance with which the Depositary will vote, or
cause to be voted, the Deposited Securities represented by the ADSs evidenced by
such Receipt at such meeting.
In order to give Holders a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
the Company shall use its best efforts to provide the Depositary notice of any
such meeting or solicitation not less than thirty (30) days prior to the meeting
date or date for giving such proxies.
Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Shares underlying ADSs, distribute to the
Holder a notice that provides Holders with a means to retrieve such materials or
receive such materials upon request (i.e., by reference to a website containing
the materials for retrieval or a contact for requesting copies of the
materials).
Notwithstanding anything else contained in the Deposit Agreement or
any ADR, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities shall be treated as new Deposited Securities
under this Deposit Agreement, and ADSs shall, subject to the terms of this
Deposit Agreement and applicable laws and regulations (including any
registration requirement under the Securities Act of 1933), thenceforth
represent, in addition to the existing Deposited Securities, the new Deposited
Securities so received in exchange or conversion, unless additional ADSs are
issued and delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company shall so request, issue and deliver
additional ADSs as in the case of a dividend in Shares, or call for the
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surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities. Immediately upon the occurrence of any
such change, conversion or exchange covered by this Section 4.08 in respect of
the Deposited Securities, the Depositary shall give notice thereof in writing to
all Holders.
SECTION 4.09 Available Information; Reports.
The Company is subject to the periodic reporting requirements of the
United States Securities Exchange Act of 1934, as amended, and accordingly files
certain reports with the Securities and Exchange Commission. Such reports are
available for inspection and copying by Holders and Beneficial Owners at the
public reference facilities maintained by the Commission located at 000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 or may be obtained from the Securities and
Exchanges Commission's website (xxx.xxx.xxx).
The Depositary shall make available for inspection by Holders at its
office any reports, notices and other communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary or the 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 distribute to the
Holders copies of reports, notices and communications when furnished by the
Company pursuant to Section 5.06.
The Company has delivered to the Depositary and the Custodian a copy
in English of its Articles of Incorporation, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy in English of such provisions as so amended or changed. The
Depositary may rely upon such copy for all purposes of this Deposit Agreement.
The Depositary will make such copy available for inspection by Holders at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer offices.
SECTION 4.10 Lists of Holders.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company (unless otherwise agreed in writing by the Company and
the Depositary), furnish to it a list, as of a recent date, of the names,
addresses and holdings of ADSs by all persons in whose names the ADSs are
registered on the books of the Depositary.
SECTION 4.11 Withholding.
In connection with any distribution to Holders, the Company or its
agent will remit to the appropriate governmental authority or agency all amounts
(if any) required under applicable law to be withheld and remitted by the
Company or such agent and owing to such governmental authority or agency by the
Company or such agent; and the Depositary and the Custodian or their respective
agents will remit to the appropriate governmental authority or agency all
amounts (if any) required under applicable law to be withheld and remitted by
the Depositary or the Custodian and owing to such authority or agency by the
Depositary or the Custodian. 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
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authorities or agencies. In the event that the Depositary determines that any
distribution in property other than cash (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale 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 any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Holders entitled thereto in proportion to the
number of ADSs held by them respectively, all in accordance with applicable
provisions of this Deposit Agreement.
Notwithstanding any other provision of this Deposit Agreement,
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, the Company 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 the 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 satisfactory to the relevant tax authorities of Korea.
When requested by the Company prior to the distribution of dividends
by the Company or in connection with a termination of the Deposit Agreement, the
Depositary shall send to all Holders entitled to receive such dividend or
proceeds of such sale of Shares, as the case may be, a notice in a form which
the Company shall provide requesting evidence of each such Holder's country of
tax residence. The Depositary shall forward to the Company or its agent any such
evidence received by it in order to establish such Holder's country of tax
residence. The Depositary shall have no obligations or liability to any person
if any Holder fails to provide such evidence or if such evidence does not reach
relevant tax authorities in time for any Holder to obtain the benefit of any tax
treaty.
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers, combinations and split-ups and surrender of ADRs in accordance
with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of ADSs and
transfers of ADSs which at all reasonable times shall be open for inspection by
the 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, including without limitation a matter
related to this Deposit Agreement or the ADSs.
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The Registrar may close the transfer books, after consultation with
the Company to the extent practicable, 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 reasonable request of the Company, provided that any such
closing of the transfer books shall be subject to the provisions of Section 2.06
which limit the suspension of withdrawals of Shares.
If any ADSs listed on one or more stock exchanges in the United
States, the Depositary shall act as Registrar or, with the prior written
approval of the Company (which approval shall not be unreasonably withheld or
delayed), appoint a Registrar or one or more co-registrars for registry of such
ADSs in accordance with any requirements of such exchange or exchanges. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary with the prior written approval of the Company
(which approval shall not be unreasonably withheld or delayed).
The Company shall have the right, upon reasonable request, to
inspect the transfer and registration records of the Depositary relating to the
ADSs, to take copies thereof and to require the Depositary and any co-registrars
to supply copies of such portions of such records as the Company may request.
SECTION 5.02 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 or Beneficial Owner, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
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 act of God or war or other circumstance beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), the Depositary or the
Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, employees, agents or affiliates incur any
liability to any Holder or Beneficial Owner by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement or the Deposited Securities 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. Where, by the
terms of a distribution pursuant to Sections 4.01, 4.02, or 4.03, or an offering
or distribution pursuant to Section 4.04, or any change in Deposited Securities
pursuant to Section 4.08, or for any other reason, the Depositary is prevented
or prohibited from making such distribution or offering available to Holders,
and the Depositary is prevented or prohibited from disposing of such
distribution or offering on behalf of such Holders and making the net proceeds
available to such Holders, then the Depositary, subject to the terms of this
Deposit Agreement and after consultation with the Company, shall not make such
distribution or offering, and shall allow any such distribution or rights, if
applicable, to lapse.
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SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders or Beneficial Owners, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Holder or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in or prosecute any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the ADSs on behalf of any Holder,
Beneficial Owner or other person, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or nonaction 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 in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Depositary shall not be liable for any acts or omissions of a predecessor
depositary, provided, however, that the Depositary shall not be absolved from
its duty to perform its obligations under this Deposit Agreement without
negligence or bad faith and in accordance with industry standards.
The Depositary 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 such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
The Depositary, subject to Sections 2.05, 2.09 and 3.05 hereof and
to applicable laws, may own and deal in any class of securities of the Company
and its affiliates and in ADSs.
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SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to be effective on the earlier of (i) the 180th day after delivery
thereof to the Company (the "Resignation Waiting Period") (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.02),
or (ii) 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 written
notice of such removal, which removal shall be effective on the later of (i) the
180th day after delivery thereof to the Depositary (the "Removal Waiting
Period"), unless waived by the Depositary, or (ii) upon the appointment by the
Company of a successor depositary 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 that are reasonable under the
circumstances to appoint a successor depositary, 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 (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.08 and 5.09); but such predecessor, nevertheless, upon payment of all
sums due it and on the written request of the Company shall execute and deliver
an instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.08 and 5.09),
shall duly assign, transfer and deliver all right, title and interest in the
Deposited Securities to such successor, and shall deliver to such successor a
list of the Holders of all outstanding ADSs. Any such successor depositary shall
promptly distribute 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 5.05 The Custodian.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it and the
Depositary shall be responsible for the compliance by the Custodian with the
applicable provisions of this Deposit Agreement. Any Custodian may resign and be
discharged from its duties hereunder by written notice of such resignation
delivered to the Depositary at least thirty (30) days prior to the date on which
such resignation is to become effective. If upon the effectiveness of such
resignation there would be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians approved by the Company (such approval not to be unreasonably
withheld or delayed), each of which shall thereafter be a Custodian hereunder.
The Depositary may discharge any Custodian at any time with the approval of the
Company (such approval not to be unreasonably withheld or delayed) upon notice
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to the Custodian being discharged. Whenever the Depositary in its discretion
determines that it is in the best interest of the Holders to do so, it may,
after consultation with the Company to the extent practicable, appoint a
substitute or additional custodian or custodians, which shall thereafter be one
of the Custodians hereunder. Upon demand of the Depositary, any Custodian shall
deliver such of the Deposited Securities held by it as are requested of it to
any other Custodian or such substitute or additional custodian or custodians.
Each such substitute or additional custodian shall deliver to the Depositary,
forthwith upon its appointment, an acceptance of such appointment satisfactory
in form and substance to the Depositary. Promptly after any such change, the
Depositary shall give notice thereof in writing to all Holders.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; 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 5.06 Reports, Notices and Other Communications.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions (other than an offering of
rights), the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission or the rules of any stock exchange on which the ADSs are admitted for
trading and will promptly transmit to the Custodian any reports, notices and
other communications that are made generally available by the Company to holders
of its Shares or other Deposited Securities, as well as English language
versions (to the extent required by applicable regulations of the Commission or
the rules of any stock exchange on which the ADSs are admitted for trading) of
the Company's annual reports (including a description of operations and annual
audited consolidated financial statements prepared in conformity with Korean
generally accepted accounting principles ("Korean GAAP"), together with, if
prepared pursuant to the United States Securities Exchange Act of 1934, as
amended, a reconciliation of net earnings and shareholders' equity to United
States generally accepted accounting principles) and semi-annual unaudited
non-consolidated financial statements prepared in conformity with Korean GAAP to
the extent required by any regulations of the Commission or the rules of any
stock exchange on which ADSs are admitted for trading. The Depositary will, at
the Company's expense (unless otherwise agreed in writing by the Company and the
Depositary), arrange for the prompt transmittal by the Custodian to the
Depositary of such notices, reports and other communications and arrange for the
distribution, as promptly as practicable, at the Company's expense (unless
otherwise agreed in writing by the Company and the Depositary), of copies
thereof (or if requested by the Company, a summary of any such notice provided
by the Company) to all Holders or, at the request of the Company, make such
33
notices, reports (other than the annual and semi-annual financial statements
described in the preceding sentence) and other communications available to all
Holders on a basis similar to that for holders of Shares or other Deposited
Securities, or on such other basis as the Company may advise the Depositary may
be required by any applicable law, regulation or stock exchange requirement. The
Company will timely provide the Depositary with the quantity of such notices,
reports, and communications, as requested by the Depositary from time to time,
in order for the Depositary to effect such distributions.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event it or any of its Affiliates
proposes (i) an issuance, sale or distribution of additional Shares, (ii) an
offering of rights to subscribe for Shares or other Deposited Securities, (iii)
an issuance of securities convertible into or exchangeable for Shares, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of
Deposited Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets, or (viii) any
reclassification, recapitalization, reorganization, merger, consolidation or
sale of assets which affects the Deposited Securities, it will consult with U.S.
counsel and take all reasonable steps necessary to ensure that the proposed
transaction does not violate the registration provisions of the Securities Act,
or any other applicable laws (including, without limitation, the Investment
Company Act of 1940, as amended, the United States Securities Exchange Act of
1934, as amended, and the securities laws of the states of the U.S.).
The Company agrees with the Depositary that neither the Company nor
any of its Affiliates will at any time (i) 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
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, without furnishing to the Depositary, upon the
Depositary's reasonable request, (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether such transaction (1)
requires a registration statement under the Securities Act to be in effect or
(2) is exempt from the registration requirements of the Securities Act and (b)
an opinion of Korean counsel stating that (1) making the transaction available
to Holders and Beneficial Owners does not violate the laws or regulations of
Korea and (2) all requisite regulatory consents and approvals have been obtained
in Korea. If the filing of a registration statement is required, the Depositary
shall not have any obligation to proceed with the transaction unless it shall
have received evidence reasonably satisfactory to it that such registration
statement has been declared effective. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the Securities
Act, the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the registration
requirements of the Securities Act or (iii) direct the Depositary to take
specific measures, in each case as contemplated in the Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act.
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Notwithstanding anything else contained in the Deposit Agreement,
nothing in the Deposit Agreement shall be deemed to obligate the Company to file
any registration statement in respect of any proposed transaction.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its officers,
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted, pursuant to the provisions of this Deposit Agreement and
of the Receipts, as the same may be amended, modified or supplemented from time
to time, (i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence or bad faith of any of them, and except to the
extent that such liability or expense arises out of information relating to the
Depositary or the Custodian (other than the Company) as applicable, furnished in
writing to the Company by the Depositary or the Custodian, as applicable,
expressly for use in any registration statement, proxy statement, prospectus (or
placement memorandum) or preliminary prospectus (or preliminary placement
memorandum) relating to the Shares, or omissions from such information; or (ii)
by the Company or any of its directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its officers,
directors, employees, agents and affiliates and hold them harmless from any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary due to negligence or bad faith of the Depositary. With respect to any
liability or expense of the Company, its officers, directors, agents, affiliates
or employees arising out of acts negligently performed or omitted to be
performed by the Custodian, the Depositary agrees to (i) assign to the Company,
to the extent of such liability or expense, such cause of action in respect of
such negligent performance or non-performance as the Depositary may have against
the Custodian pursuant to the terms of the custody agreement between the
Depositary and the Custodian on the subject of custody of the Shares represented
by ADSs and (ii) use its best efforts to assist the Company in its bringing of
any action against the Custodian under the applicable custody agreement in
respect of such negligent performance or non-performance by the Custodian.
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 to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) 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.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
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SECTION 5.09 Charges of Depositary.
The Company, the Holders, the Beneficial Owners, and persons
depositing Shares or surrendering ADSs for cancellation and withdrawal of
Deposited Securities shall be required to pay to the Depositary the Depositary's
fees and related charges identified as payable by them respectively in the Fee
Schedule attached hereto as Exhibit B. All fees and charges so payable may, at
any time and from time to time, be changed by agreement between the Depositary
and the Company, but, in the case of fees and charges payable by Holders and
Beneficial Owners, only in the manner contemplated in Section 6.01. The
Depositary shall present statements for such expenses to the Company at least
once every three (3) months. The charges and expenses of the Custodian are for
the sole account of the Depositary.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable record date established by the Depositary. In the
case of distributions of cash, the amount of the applicable Depositary fees is
deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the applicable record date established
by the Depositary. For ADSs held through DTC, the Depositary fees for
distributions other than cash and the Depositary service fee are charged by the
Depositary to the DTC Participants in accordance with the procedures and
practices prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of, and/or reimburse the Company
for, certain expenses incurred by the Company in respect of the ADR program
established pursuant to the Deposit Agreement upon such terms and conditions as
the Company and the Depositary may agree from time to time. The Company shall
promptly pay to the Depositary such fees and charges and reimburse the
Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree in writing from time to time. Responsibility for payment of such charges
and reimbursements may from time to time be changed by agreement between the
Company and 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. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.04, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
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SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company reasonably requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as Citibank, N.A. is acting as
Depositary hereunder, subject, however, to the rights of the Company under
Section 5.04.
SECTION 5.12 Restricted Securities Owners.
The Company has advised or agrees to use its reasonable best efforts
to advise in writing each of the persons or entities who, to the knowledge of
the Company, holds Restricted Securities that such Restricted Securities are
ineligible for deposit hereunder (except under the circumstances contemplated in
Section 2.13).
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended without the consent
of Holders or Beneficial Owners 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, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty (30) days after notice of such amendment shall have
been given to the Holders of outstanding ADSs. Every Holder or Beneficial Owner
at the time any amendment so becomes effective shall be deemed, by continuing to
hold or own such ADSs, 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 ADSs to surrender such ADSs and receive therefor
the Deposited Securities represented by the ADSs evidenced thereby, except in
order to comply with mandatory provisions of applicable law.
Notice of any amendment to the Deposit Agreement or any ADR shall
not need to describe in detail the specific amendments effectuated thereby, and
failure to describe the specific amendments in any such notice shall not render
such notice invalid, provided, however, that, in each such case, the notice
given to the Holders identifies a means for Holders and Beneficial Owners to
retrieve or receive the text of such amendment (i.e., upon retrieval from the
37
Commission's, the Depositary's or the Company's website or upon request from the
Depositary). The parties hereto agree that any amendments or supplements which
(i) are reasonably necessary (as agreed by the Company and the Depositary) in
order for (a) the ADSs to be registered on Form F-6 under the Securities Act or
(b) the ADSs to be settled 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 or Beneficial
Owners.
SECTION 6.02 Termination.
The Depositary shall at any time, at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all ADSs then outstanding at least thirty (30) days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by mailing notice of such termination to the Company and
the Holders of all ADSs then outstanding at least thirty (30) days prior to the
date fixed in such notice for such termination, if at any time the Resignation
Waiting Period shall have expired and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. On and after
the date of termination, the Holder of an ADS will, upon (a) Delivery of such
ADSs to the Depositary, (b) payment of the fees of the Depositary for the
surrender of ADSs referred to in Section 2.05, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to the Holder or upon
the Holder's order, of the amount of Deposited Securities represented by the
ADSs. If any ADSs shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of ADSs,
shall suspend the distribution of dividends to the Holders thereof, 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 rights and
other property 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 ADSs surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of ADSs,
any expenses for the account of the Holder of such ADSs in accordance with the
terms and conditions of this Deposit Agreement, and any applicable taxes or
governmental charges). At any time after the expiration of sixty (60) days from
the date of termination, the Depositary may sell the Deposited Securities then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Holders of ADSs
which have not theretofore been surrendered, such Holders thereupon becoming
general creditors of the Depositary with respect to such net proceeds. After
making such sale, the Depositary shall be discharged from all obligations under
this Deposit Agreement, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of
ADSs, any expenses for the account of the Holder of such ADSs in accordance with
the terms and conditions of this Deposit Agreement, and any applicable taxes or
governmental charges) and except as provided in Section 5.08. 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 5.08 and 5.09 hereof.
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ARTICLE 7
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 instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Holder during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto (and their successors) 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 Receipts 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 Beneficial Owners of ADSs issued hereunder from time
to time shall be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions of this Deposit Agreement and of the Receipts by
acceptance thereof or any 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, air courier,
cable, telex or facsimile transmission confirmed by letter, addressed to
KB Financial Group Inc.
9-1, 2-ga, Namdaemoon-ro, Jung-gu
Xxxxx 000-000, Xxxxx
Attention: IR General Manager
Facsimile: x00-0-0000-0000
or any other place to which the Company may have transferred its principal
office with notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail, air
courier, cable, telex or facsimile transmission confirmed by letter, addressed
to
39
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Depositary Receipts Department
Facsimile: x0-000-000-0000
or any other place to which the Depositary may have transferred its office with
notice to the Company.
Any and all notices to be given to any Holder shall be deemed to
have been duly given if (a) personally delivered or sent by mail, cable, telex
or facsimile transmission confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be delivered to some other address, at the
address designated in such request , or (b) if a Holder shall have designated
such means of notification as an acceptable means of notification under the
terms of this Deposit Agreement, by means of electronic messaging addressed for
delivery to the e-mail address designated by the Holder for such purpose. Notice
to Holders shall be deemed to be notice to Beneficial Owners for all purposes of
this Deposit Agreement. Failure to notify a Holder or any defect in the
notification to a Holder shall not affect the sufficiency of notification to
other Holders or to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier, cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter as aforesaid.
Delivery of a notice by means of electronic messaging shall be
deemed to be effective at the time of the initiation of the transmission by the
sender (as shown on the sender's records), notwithstanding that the intended
recipient retrieves the message at a later date, fails to retrieve such message,
or fails to receive such notice on account of its failure to maintain the
designated e-mail address, its failure to designate a substitute e-mail address
or for any other reason.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Company hereby (i) irrevocably designates and appoints Kookmin
Bank, New York Branch, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited Securities,
the ADSs, the Receipts or this Deposit Agreement, (ii) consents and submits to
the jurisdiction of any state or federal court in the State of New York in which
40
any such suit or proceeding may be instituted, and (iii) agrees that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action, including the filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment in full force and effect for so long as any ADSs or Receipts
remain outstanding or this Deposit Agreement remains in force. In the event the
Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or registered
mail, return receipt requested, directed to the Company at its address last
specified for notices hereunder, and service so made shall be deemed completed
upon filing with the relevant clerk of court of an affidavit of such service,
including the return receipt signed by the Company or other official proof of
delivery or, if acceptance was refused by the Company, the original envelope
with a notation by the postal authorities that acceptance was refused.
SECTION 7.07 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the law of the State of New York.
SECTION 7.08 Headings.
Headings contained herein are included for convenience only and are
not to be used in construing or interpreting any provision hereof.
SECTION 7.09 Amendment and Restatement.
The Depositary shall arrange to have new Receipts printed that
reflect the form of Receipts attached to the Deposit Agreement. All Receipts
issued hereunder after the date hereof, whether upon the deposit of Shares or
other Deposited Securities or upon the transfer, combination or split-up of
existing Receipts, shall be substantially in the form of the specimen Receipt
attached as Exhibit A hereto. The American depositary receipts issued and
outstanding under the terms of the Original Deposit Agreement shall, from and
after the date hereof, evidence the right to receive ADSs and will need to be
transferred to the Depositary in exchange for ADSs and only upon such exchange
shall the holder thereof of such ADRs be entitled to exercise the rights as a
Holder of ADSs under this Deposit Agreement. However, subject to the foregoing
and applicable laws, American depositary receipts issued prior to the date
hereof under the terms of the Original Deposit Agreement may remain outstanding
until such time as the holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
The Company hereby instructs the Depositary to (i) promptly send
notice of the execution of the Deposit Agreement to all "Holders" (as defined in
the Original Deposit Agreement) of Kookmin ADSs outstanding under the Original
Deposit Agreement as of the date hereof and (ii) inform "Holders" (as defined in
the Original Deposit Agreement) of Kookmin ADSs issued as "certificated American
41
depositary shares" and outstanding under the Original Deposit Agreement that
they need to transfer their Kookmin ADSs and the applicable American depositary
receipts (if any) to the Depositary in exchange for ADSs in order to exercise
their rights under this Deposit Agreement.
Holders and Beneficial Owners (in each case within the meaning given
to such terms in the Original Deposit Agreement) of Kookmin ADSs issued pursuant
to the Original Deposit Agreement and outstanding as of the date hereof, shall
be deemed Holders and Beneficial Owners of ADSs issued pursuant to the terms and
conditions of this Deposit Agreement only upon the exchange of the Kookmin ADSs
to ADSs issued hereunder.
42
IN WITNESS WHEREOF, KB FINANCIAL GROUP INC. and CITIBANK, N.A. have
duly executed this agreement, and Kookmin Bank has joined in the execution for
the purposes set forth herein, as of the day and year first set forth above and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof or any interest therein.
KB FINANCIAL GROUP INC.
By: /s/ Xxx Xxxx
----------------------------------------------
Name: Xxx Xxxx
Title: Chief Financial and Accounting Officer
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Joining in the execution of this agreement
for the sole purpose of amending the Second
Amended and Restated Deposit Agreement.
KOOKMIN BANK
By: /s/ Xxxxxx X. XxxXxxxxx
----------------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Senior EVP / CFO
Executive Director
43
EXHIBIT A
IN ACCORDANCE WITH KOREAN LAW AND THE ARTICLES OF INCORPORATION OF THE COMPANY,
THE RIGHT TO INSTRUCT THE DEPOSITARY WITH RESPECT TO VOTING MAY BE RESTRICTED.
SEE ARTICLE 16 HEREOF.
AMERICAN DEPOSITARY SHARES (Each
American Depositary Share
represents one (1) Deposited
Share)
CITIBANK, N.A.
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES OF
KB FINANCIAL GROUP INC.
(ORGANIZED UNDER THE LAWS OF THE REPUBLIC OF KOREA)
CITIBANK, N.A., as depositary (hereinafter called the Depositary),
hereby certifies that __________________ , or registered assigns IS THE HOLDER
OF _______________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited common shares (herein called Shares), of KB Financial
Group Inc., a company organized under the laws of the Republic of Korea (herein
called the Company). At the date hereof, each American Depositary Share
represents one (1) Share deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the principal Seoul, Korea
office of Korea Securities Depository (herein called the Custodian). The
Depositary's Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X.
A-1
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
Receipts or ADR(s)), all issued and to be issued upon the terms and conditions
set forth in the Third Amended and Restated Deposit Agreement, dated as of
September 29, 2008, among the Company, the Depositary, all Holders and
Beneficial Owners from time to time of American Depositary Shares (herein called
ADS(s)) issued thereunder, and Kookmin Bank, a company organized under the laws
of the Republic of Korea, joining in the execution solely to amend the Second
Amended and Restated Deposit Agreement, dated as of November 21, 2006, by and
among Kookmin Bank, the Depositary and all holders and beneficial owners from
time to time of American depositary shares issued thereunder, as the same may be
amended from time to time in accordance with its terms (herein called the
Deposit Agreement). Each Holder and Beneficial Owner, by accepting an ADSs, a
Receipt or interests therein agrees to become a party thereto and become bound
by all the terms and conditions of the Deposit Agreement. The Deposit Agreement
sets forth the rights of Holders and Beneficial Owners of the ADSs and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called Deposited Securities). Copies of the
Deposit Agreement are on file at the principal office of the Depositary and at
the office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
The Holder of ADSs shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs upon satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.09 of the Deposit
Agreement and Exhibit B to the Deposit Agreement) have been paid, subject,
however, in each case, to the terms and conditions of this or any ADRs
evidencing the surrendered ADSs, of the Deposit Agreement, of the Company's
Articles of Incorporation and of any applicable laws and the rules of CSD, and
to any provisions of or governing the Deposited Securities , in each case as in
effect at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this or any ADRs evidencing the ADSs so
cancelled, of the Articles of Incorporation of the Company, of any applicable
laws and of the rules of CSD, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause the appropriate
whole number of Shares to be Delivered in accordance with the terms of the
Deposit Agreement, and shall, at the discretion of the Depositary, either (i)
return to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this or any ADR or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of shares or rights, which are at
the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent not prohibited by law) any cash or other property (other than
securities) held by the Custodian in respect of the Deposited Securities
represented by such ADSs to the Depositary for delivery at the Principal 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.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The Depositary, subject to the terms and conditions of the Deposit
Agreement, shall register transfers of this Receipt or any other Receipt on its
transfer books from time to time, upon any surrender of such Receipt(s), by the
Holder in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer, and duly stamped as may be
required by the laws of the State of New York and of the United States of
America; provided, however, that the Depositary shall refuse to register any
transfer of Receipts if it has been notified by the Company that such
registration would result in a violation of the ownership restrictions referred
to in Section 3.05 of the Deposit Agreement or any other applicable law or the
Company's Articles of Incorporation. Thereupon the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
A-3
entitled thereto. The Depositary, subject to the terms and conditions of the
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of ADSs requested,
evidencing the same aggregate number of ADSs as the Receipt or Receipts
surrendered.
As a condition precedent to the issuance and delivery, registration
of transfers or surrender of any ADSs, or split-up or combination this or any
Receipt(s), the delivery of any distribution thereon, or withdrawal of any
Deposited Securities, the Company, the Depositary, the Custodian or the
Registrar may require payment from the depositor of Shares or the presenter of
the ADS of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax, charge or fees and charges of the Depositary with
respect to Shares being deposited or withdrawn as provided in Exhibit B to the
Deposit Agreement) and payment of any applicable fees as provided herein, in the
Deposit Agreement and in Exhibit B to the Deposit Agreement, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement,
including, without limitation, Section 2.06 of the Deposit Agreement.
The delivery of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfer
of outstanding ADSs or the combination or split-up of this or any Receipt(s)
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding any other provision
of the Deposit Agreement or this or any Receipt(s) to the contrary, the
surrender of outstanding ADSs and withdrawal of Deposited Securities may be
suspended only for reasons that may at the time be specified in paragraph
I(A)(1) of the General Instructions to Form F-6 under the Securities Act of
1933, or any successor provision thereto. Without limitation of the foregoing,
the Depositary shall not knowingly accept for deposit under the Deposit
Agreement any Shares which would be required to be registered under the
provisions of the Securities Act for the public offer and sale thereof in the
United States unless a registration statement is in effect as to such Shares for
such offer and sale. The Depositary shall comply with written instructions of
the Company that the Depositary shall not accept for deposit under the Deposit
Agreement any Shares identified in such instructions at such times and under
such circumstances as may reasonably be specified in such instructions in order
to facilitate the Company's compliance with the securities laws in the United
States.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to this or any Receipt or any Deposited Securities represented by ADSs,
such tax or other governmental charge shall be payable by the Holder or
Beneficial Owner of such ADSs to the Depositary. The Company, the Custodian
A-4
and/or the Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer of ADSs, register the split-up or combination of ADRs and the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
5. REPRESENTATIONS AND WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate,
if any, or other documents of title, therefor are validly issued, fully paid and
non-assessable and legally obtained by such person, 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. Every such
person shall also be deemed to represent that the Shares presented for deposit
are not, and ADSs representing such Shares would not be, Restricted Securities
(except as contemplated by Section 2.13 of the Deposit Agreement) and the Shares
presented for deposit have not been stripped of any rights or entitlements and
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim. Such representations and warranties shall survive the deposit
and withdrawal of Shares, the issuance and cancellation of ADSs in respect
thereof and the transfer of such ADSs. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or Beneficial
Owner of ADSs may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
payment of applicable Korean or other taxes or other governmental charges, legal
or beneficial ownership of ADSs, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or this Receipt, or such information relating to the registration on
the shareholders' register of the Company, a CSD or the Foreign Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
require by written request to the Depositary. The Depositary may withhold the
delivery or registration of transfer of any ADSs or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or information is filed or
such certificates are executed or such representations and warranties are made.
The Depositary shall from time to time advise the Company of the availability of
any such proofs, information, certificates or other representations and
warranties and shall provide copies thereof to the Company as promptly as
practicable upon request by the Company, unless such disclosure is prohibited by
law.
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7. CHARGES OF DEPOSITARY.
The Depositary shall charge the following fees:
(i) Issuance Fee: to any person depositing Shares or to any person
receiving ADSs upon a deposit of Shares, a fee of up to U.S.
$5.00 per 100 ADSs (or fraction thereof) so issued under the
terms of the Deposit Agreement (excluding issuances as a
result of distributions described in paragraph (iv) below);
(ii) Cancellation Fee: to any person surrendering ADSs for purposes
of withdrawal of Deposited Securities or any person to whom
Deposited Securities are delivered, a fee of up to U.S. $5.00
per 100 ADSs (or fraction thereof) surrendered;
(iii) Cash Distribution Fee: to any person to whom a distribution is
made, a fee of up to U.S. $2.00 per 100 ADSs (or fraction
thereof) held for the distribution of cash dividends or other
cash distributions (i.e., sale of rights and other
entitlements);
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee of up to U.S. $2.00 per 100 ADSs (or fraction
thereof) held for (a) the distribution of stock dividends or
other free stock distributions or (b) the exercise of rights
to purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee of up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held for the
distribution of securities other than ADSs or rights to
purchase additional ADSs (i.e., spin-off shares);
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee of up
to U.S. $2.00 per 100 ADSs (or fraction thereof) held on the
applicable record date(s) established by the Depositary; and
(vii) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee of U.S. $1.50 per ADR so presented for
transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
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(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
The Company, the Holders, the Beneficial Owners, and persons
depositing Shares or surrendering ADSs for cancellation and withdrawal of
Deposited Securities shall be required to pay to the Depositary the Depositary's
fees and related charges identified as payable by them respectively in this
paragraph (7) and the Fee Schedule attached as Exhibit B to the Deposit
Agreement. All fees and charges so payable may, at any time and from time to
time, be changed by agreement between the Depositary and the Company, but, in
the case of fees and charges payable by Holders and Beneficial Owners, only in
the manner contemplated in Section 6.01 of the Deposit Agreement.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable record date established by the Depositary. In the
case of distributions of cash, the amount of the applicable Depositary fees is
deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the applicable record date established
by the Depositary. For ADSs held through DTC, the Depositary fees for
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distributions other than cash and the Depositary service fee are charged by the
Depositary to the DTC Participants in accordance with the procedures and
practices prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of, and/or reimburse the Company
for, certain expenses incurred by the Company in respect of the ADR program
established pursuant to the Deposit Agreement upon such terms and conditions as
the Company and the Depositary may agree from time to time. The Company shall
promptly pay to the Depositary such fees and charges and reimburse the
Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree in writing from time to time. Responsibility for payment of such charges
and reimbursements may from time to time be changed by agreement between the
Company and the Depositary.
8. PRE-RELEASE OF RECEIPTS.
Unless requested by the Company to cease doing so, the Depositary
may, to the extent permitted by applicable law, notwithstanding Section 2.03 of
the Deposit Agreement, issue and deliver ADSs prior to the receipt of Shares
pursuant to Section 2.02 of the Deposit Agreement ("Pre-Release"). The
Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver
Shares upon the surrender and cancellation of ADSs which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such ADSs has been Pre-Released. The Depositary may
receive ADSs in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom ADSs are to be delivered that such person, or
its customer, (i) owns the Shares or ADSs to be remitted, as the case may be,
(ii) assigns all beneficial right, title and interest in such Shares or ADSs, as
the case may be, to the Depositary in its capacity as such and for the benefit
of the Holders, and (iii) will not take any action with respect to such Shares
or ADSs, as the case may be, that is inconsistent with the transfer of
beneficial ownership (including, without the consent of the Depositary,
disposing of such Shares or ADSs, as the case may be, other than in satisfaction
of such Pre-Release), (b) at all times fully collateralized with cash, U.S.
government securities or such other collateral as the Depositary determines, in
good faith, will provide substantially similar liquidity and security, (c)
terminable by the Depositary on not more than five (5) Business Days' notice,
and (d) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The Depositary will normally limit the number of
ADSs and Shares involved in such Pre-Release at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding
pursuant to an issuance of ADSs under Section 2.02 of the Deposit Agreement),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems reasonably appropriate and may, with
the prior written consent of the Company, change such limit for purposes of
general application. The Depositary will also set limits with respect to the
number of Pre-Released ADSs involved in transactions to be done under the
Deposit Agreement with any one person on a case-by-case basis as it deems
appropriate. The collateral referred to in clause (b) above shall be held by the
Depositary for the benefit of the Holders as security for the performance of the
obligations to deliver Shares or Receipts, as the case may be, set forth in
clause (a) above (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
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The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive holder and
Holder of this Receipt by accepting or holding the same consents and agrees,
that title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, shall be transferable upon the same terms as a
certificated security under the laws of the State of New York; provided,
however, that the Depositary and the Company, notwithstanding any notice to the
contrary, may treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for all purposes. Neither
the Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or any ADR to any holder or any beneficial
owner unless, in the case of a holder of ADSs, such holder is the Holder
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADSs. ADRs bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly-authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such ADR by
the Depositary.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
United States Securities Exchange Act of 1934, as amended, and accordingly files
certain reports with the Securities and Exchange Commission. Such reports are
available for inspection and copying by Holders and Beneficial Owners at the
public reference facilities maintained by the Commission located at 000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 or may be obtained from the Securities and
Exchange Commission's website (xxx.xxx.xxx).
The Depositary shall make available for inspection by Holders at its
office any reports, notices and other communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary or the 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 the
Holders copies of such reports, notices and communications furnished by the
Company pursuant to the Deposit Agreement.
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The Registrar will keep books for the registration of ADSs and
transfers of ADSs which at all reasonable times shall be open for inspection by
the 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 for an
object other than the business of the Company, including, without limitation, a
matter related to the Deposit Agreement or the ADSs.
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Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: ________________________ By: ________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary, or on its behalf, its agent, shall receive
any cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, or shall cause its agent to, as promptly as practicable after
its receipt of such dividend or distribution (unless otherwise prohibited or
prevented by law), subject to the provisions of Section 4.05 of the Deposit
Agreement, convert such dividend or distribution into Dollars and shall, as
promptly as practicable, distribute the amount thus received (net of the
expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement)
to the Holders entitled thereto, in proportion to the number of ADSs
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company or an agent of the Company, the
Depositary or the Custodian shall be required to withhold and does withhold from
such cash dividend or such other cash distribution an amount on account of taxes
or other governmental charges, the amount distributed to the Holder of ADSs
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary shall, as promptly as practicable, cause the securities or
property received by it to be distributed to the Holders entitled thereto, in
proportion to the number of ADSs 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 applicable law;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Holders entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Company or
an agent of the Company, the Depositary or the Custodian withhold an amount on
account of taxes or other governmental charges or that such securities be
registered under the Securities Act of 1933 in order to be distributed to
Holders) the Depositary deems such distribution not to be practicable, 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, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.09 of the
Deposit Agreement and any expenses in connection with such sale) shall be
distributed by the Depositary to the Holders entitled thereto as in the case of
a distribution received in cash pursuant to Section 4.01 of the Deposit
Agreement; provided, further, that no distribution to Holders pursuant to this
paragraph or to Section 4.02 of the Deposit Agreement shall be unreasonably
delayed by any action of the Depositary or any of its agents. The Depositary may
withhold any distribution of securities under this paragraph or Section 4.02 of
the Deposit Agreement if it has not received reasonably satisfactory assurances
from the Company that the distribution does not require registration under the
Securities Act of 1933.
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If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request, distribute, as promptly as practicable, to the
Holders of outstanding ADSs entitled thereto, additional ADSs representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of ADSs, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Section 5.09
of the Deposit Agreement. In lieu of delivering fractional ADSs in any such
case, the Depositary shall sell the amount of Shares or ADSs represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.01 of the Deposit
Agreement; provided, however, that no distribution to Holders pursuant to
Section 4.03 of the Deposit Agreement shall be unreasonably delayed by any
action of the Depositary or any of its agents. If additional ADSs are not so
distributed, each ADS shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
Notwithstanding any other provision of this Receipt or the Deposit
Agreement, 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, the Company 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 the
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 satisfactory to the relevant tax
authorities of Korea.
When requested by the Company prior to the distribution of dividends
by the Company or in connection with a termination of the Deposit Agreement, the
Depositary shall send to all Holder s entitled to receive such dividend or the
proceeds of such sale of Shares, as the case may be, a notice in a form which
the Company shall provide requesting evidence of each such Holder 's country of
tax residence. The Depositary shall forward to the Company or its agent any such
evidence received by it in order to establish such Holder 's country of tax
residence. The Depositary shall have no obligations or liability to any person
if any Holder fails to provide such evidence or if such evidence does not reach
relevant tax authorities in time for any Holder to obtain the benefit of any tax
treaty.
13. 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, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Holders or in disposing of such rights on
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behalf of any Holders and making the net proceeds available in Dollars to such
Holders or, if by the terms of such rights offering or for any other reason it
would be unlawful or impracticable for the Depositary to either make such rights
available to any Holders or dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines that it
is lawful and practicable to make such rights available to all or certain
Holders but not to other Holders, the Depositary may, and at the request of the
Company shall, distribute to any Holder to whom it determines the distribution
to be lawful and practicable, in proportion to the number of ADSs held by such
Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed,
if a Holder requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the ADSs of such Holder hereunder, the
Depositary will make such rights available to such Holder upon written notice
from the Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Holder has
executed such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon instruction from such a Holder to
the Depositary to exercise such rights, pursuant to such warrants or other
instruments, upon payment by such Holder to the Depositary for the account of
such Holder of an amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, issue and deliver ADSs to such Holder;
provided, however, that in the case of a distribution pursuant to the paragraph
above, such deposit may be made, and depositary shares may be delivered, under
separate arrangements to be entered into between the Company and the Depositary
which provide for issuance of depositary receipts which shall be legended in
accordance with applicable United States laws and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under
applicable United States laws, including without limitation, circumstances as
provided in Section 2.13 of the Deposit Agreement.
A Holder or Beneficial Owner shall not be entitled to any rights to
subscribe for additional Shares if and to the extent that the number of Shares
represented by ADSs beneficially owned by such Holder or Beneficial Owner, when
aggregated with all other Shares beneficially owned by such Holder or Beneficial
Owner (including Shares beneficially owned by Affiliated Owners of such Holder
or Beneficial Owner), exceeds four (4) percent of the aggregated number of
shares with voting rights of the Company issued and outstanding.
If the Depositary determines that it is not lawful or practicable to
make such rights available to all or certain Holders, it may, and at the request
of the Company shall use its best efforts that are reasonable under the
circumstances to, sell the rights, warrants or other instruments in proportion
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to the number of ADSs held by the Holders to whom it has determined it may not
lawfully or practicably make such rights available. The Depositary shall
allocate any net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09 of the Deposit Agreement, any other expenses in
connection with such sale and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Holders otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Such proceeds
shall be distributed in accordance with Section 4.01 of the Deposit Agreement.
If such sale can be effected only with the approval or license of the Korean
government or any agency thereof, the Depositary shall file as promptly as
practicable such application for approval or license; however, the Depositary
shall be entitled to rely upon Korean local counsel in such matters, which
counsel shall be instructed to act as promptly as possible.
Except as provided in the third preceding paragraph, the Depositary
will not offer rights to Holders unless both the rights and the securities to
which such rights relate are either exempt from the registration requirements of
the Securities Act of 1933 with respect to a distribution to all Holders or are
registered under the provisions of such Act. If a Holder of ADSs requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company, upon which the Depositary may rely, that such
distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive 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 reasonable judgment of the
Depositary, pursuant to applicable law, be converted on a practicable basis into
Dollars and the resulting Dollars transferred to the United States, the
Depositary shall convert or cause to be converted as promptly as practicable, by
sale or in any other manner that it may determine in accordance with applicable
law, such Foreign Currency into Dollars and such Dollars shall be distributed as
promptly as practicable to the Holders entitled thereto or, if the Depositary
shall have distributed any rights, warrants or other instruments which entitle
the holders thereof to such Dollars, then to the holders of such rights,
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution or conversion may be made upon an averaged or other practicable
basis without regard to any distinctions among Holders on account of exchange
restrictions, the date of delivery of any Receipt or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09 of the Deposit Agreement.
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If such conversion or distribution can be effected only with the
approval or license of, or filing a report to, any government or agency thereof,
the Depositary shall, as promptly as practicable, file such application for such
approval or license, or such report, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its reasonable
judgment, pursuant to applicable law, any Foreign Currency received by the
Depositary or the Custodian is not convertible on a reasonable basis into
Dollars transferable to the United States, or if any approval or license of, or
acceptance of any report to, any government or agency thereof which is required
for such conversion is denied or in the opinion of the Depositary is not
obtainable; or if any such approval, license or acceptance is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary or Custodian to, or
in its discretion may hold such Foreign Currency uninvested and without
liability for interest thereon 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 of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
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 ADS, 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, which date shall either (x) be the same date as the record
date fixed by the Company, or (y) if different from the record date fixed by the
Company, be as near as is practicable to such record date (a) for the
determination of the Holders who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at, and to attend (without
voting or speaking), any such meeting or (iii) who shall be responsible for any
fee or charges assessed by the Depositary pursuant to the Deposit Agreement, or
(b) on or after the date on which each ADS will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES AND ATTENDANCE AT MEETINGS.
Upon receipt of notice of any meeting or solicitation of proxies of
holders of Shares or other Deposited Securities, if requested in writing by the
Company, the Depositary shall, as soon as practicable thereafter, distribute to
the Holders of ADSs a notice, the form of which notice shall be in the
reasonable discretion of the Depositary, which shall contain (a) such
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information as is contained in such notice of meeting, (or, if requested by the
Company a summary of such information provided by the Company), (b) a statement
that the Holders of ADSs as of the close of business on a specified record date
will be entitled, subject to any applicable provisions of Korean law and of the
Articles of Incorporation of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the integral number of
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given. Upon the instruction of a Holder of an ADS on the
record date, received on or before the date established by the Depositary for
such purpose, the Depositary shall vote or cause to be voted (or give a proxy
with respect to) the integral number of Shares or other Deposited Securities
represented by ADSs evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent the Depositary does not
receive instructions from Holders on or prior to such date, the Depositary shall
vote or cause to be voted deposited Shares in the same manner and in the same
proportion as the holders of all other outstanding Shares vote their Shares. The
Depositary shall not vote (or give a proxy with respect to) Shares or other
Deposited Securities other than in accordance with such instructions or as set
forth in the immediately preceding sentence. A Holder acting on its own behalf
or on behalf of a Beneficial Owner shall not be entitled to give any
instructions with respect to voting rights associated with ADSs held by such
Holder or Beneficial Owner if and to the extent the total number of Shares
represented by American Depositary Shares beneficially owned by such Holder or
Beneficial Owner, when aggregated with all other Shares beneficially owned by
such Holder or Beneficial Owner (including Shares beneficially owned by
Affiliated Owners of such Holder or Beneficial Owner), exceeds four (4) percent
of the total number of shares with voting rights of the Company outstanding or
any other limit under the Company's Articles of Incorporation or applicable law
with respect to which the Company may, from time to time, notify the Depositary.
The Company and the Depositary may take any and all action necessary or
desirable to enforce the restrictions on the exercise of voting rights set forth
in the preceding sentence.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement, and ADSs shall, subject to
the terms of this Deposit Agreement and applicable laws and regulations
(including any registration requirement under the Securities Act of 1933),
thenceforth represent, in addition to the existing Deposited Securities, the new
Deposited Securities so received in exchange or conversion, unless additional
ADSs are issued and delivered pursuant to the following sentence. In any such
case the Depositary may, and shall if the Company shall so request, issue and
deliver additional ADSs as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities. Immediately upon the occurrence of any
such change, conversion or exchange covered by Section 4.08 of the Deposit
Agreement in respect of the Deposited Securities, the Depositary shall give
notice thereof in writing to all Holders of ADSs.
A-17
18. 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 or Beneficial Owner, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
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 act of God or war or other circumstance beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), the Depositary or the
Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of the Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, employees, agents or affiliates incur any
liability to any Holder or Beneficial Owner by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of the Deposit Agreement or the Deposited Securities 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. Where, by the
terms of a distribution pursuant to Sections 4.01, 4.02, or 4.03 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.04 of the
Deposit Agreement, or any change in Deposited Securities pursuant to Section
4.08 of the Deposit Agreement, or for any other reason, the Depositary is
prevented or prohibited from making such distribution or offering available to
Holders, and the Depositary is prevented or prohibited from disposing of such
distribution or offering on behalf of such Holders and making the net proceeds
available to such Holders, then the Depositary, subject to the terms of the
Deposit Agreement and after consultation with the Company, shall not make such
distribution or offering, and shall allow any such distribution or rights, if
applicable, to lapse. The Company assumes no obligation nor shall it be subject
to any liability under the Deposit Agreement to Holders or Beneficial Owners,
except that it agrees to perform its obligations specifically set forth in the
Deposit Agreement without negligence or bad faith. The Depositary assumes no
obligation nor shall it be subject to any liability under the Deposit Agreement
to any Holder or Beneficial Owner (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it
agrees to perform its obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. Neither the Depositary nor the
Company shall be under any obligation to appear in or prosecute any action, suit
or other proceeding in respect of any Deposited Securities or in respect of the
ADSs on behalf of any Holder, Beneficial Owner or other person, and the
Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or non
action by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with the
issue out of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Depositary shall not be liable for any acts or omissions of a predecessor
A-18
depositary, provided, however, that the Depositary shall not be absolved from
its duty to perform its obligations under the Deposit Agreement without
negligence or bad faith and in accordance with industry standards. The
Depositary 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 such vote is cast or the effect of any such vote, provided that any such
action or non action is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
The Depositary, subject to Sections 2.05, 2.09 and 3.05 of the
Deposit Agreement and to applicable laws, may own and deal in any class of
securities of the Company and its affiliates and in ADSs.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of its election so to do delivered to the
Company, such resignation to be effective on the earlier of (i) the 180th day
after delivery thereof to the Company (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.02 of the Deposit
Agreement), or (ii) 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 written
notice of such removal, which removal shall be effective on the later of (i) the
180th day after delivery thereof to the Depositary, unless waived by the
Depositary, or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement.
Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders to do so, it may, after consultation with the
Company to the extent practicable, appoint a substitute or additional custodian
or custodians, which shall thereafter be one of the Custodians under the Deposit
Agreement.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended without the consent of Holders
or Beneficial Owners 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, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Holders or Beneficial Owners, shall, however, not
become effective as to outstanding Receipts until the expiration of thirty (30)
days after notice of such amendment shall have been given to the Holders of
outstanding ADSs. Every Holder or Beneficial Owner at the time any amendment so
becomes effective shall be deemed, by continuing to hold or own such ADSs, 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 ADSs to surrender such ADSs and receive therefor the Deposited Securities
represented by the ADSs evidenced thereby, except in order to comply with
mandatory provisions of applicable law.
A-19
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time, at the direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all ADSs then outstanding at least thirty (30) days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
the Deposit Agreement by mailing notice of such termination to the Company and
the Holders of all ADSs then outstanding at least thirty (30) days prior to the
date fixed in such notice of termination, if at any time the Resignation Waiting
Period shall have expired and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. On and after the date of termination, the Holder of an ADS
will, upon (a) Delivery of such ADSs to the Depositary, (b) payment of the fees
of the Depositary for the surrender of ADSs referred to in Section 2.05 of the
Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to the Holder or upon the Holder's order, of
the amount of Deposited Securities represented by the ADSs. If any ADSs shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of ADSs, shall suspend the
distribution of dividends to the Holders thereof, 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 sell rights and other property 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 ADSs surrendered to the Depositary (after deducting,
in each case, the fee of the Depositary for the surrender of ADSs, any expenses
for the account of the Holder of such ADSs in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of sixty (60) days from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it under the Deposit
Agreement, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of ADSs which have not theretofore been surrendered, such
Holders thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of ADSs, any expenses for the account of the Holder
of such ADSs in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges) and except as
provided in Section 5.08 of the Deposit Agreement. 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 with respect
to indemnification, charges, and expenses.
A-20
22. DISCLOSURE OF INTERESTS; OWNERSHIP LIMITATIONS.
The Company 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 ADSs and regarding the identity of any other
persons then or previously interested in such ADSs 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 Section 3.04 of the Deposit Agreement whether or not
still a Holder or Beneficial Owner at the time of such request. The Depositary
agrees to use its best efforts that are reasonable under the circumstances 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
ADSs, 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 transfers of the Shares where such transfer
might result in ownership of Shares exceeding the limits under the Articles of
Incorporation of the Company or applicable laws, or where such transfer would
result in a deposit under the Deposit Agreement which is not permitted under
Section 2.02 of the Deposit Agreement. The Company may also restrict, in such
manner as it deems appropriate, transfers of the ADSs where such transfer may
cause the total number of Shares represented by the ADSs beneficially owned by a
single Holder or Beneficial Owner, when aggregated with all other Shares
beneficially owned by such Holder or Beneficial Owner (including Shares
beneficially owned by Affiliated Owners of such Holder or Beneficial Owner), to
exceed four (4) percent of the aggregate number of shares with voting rights of
the Company issued and outstanding, or any other limits under the Articles of
Incorporation of the Company or 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 the
limitation set forth in the second sentence of Section 3.05 of the Deposit
Agreement, including but not limited to a mandatory sale or disposition on
behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs
held by such Holder or Beneficial Owner in excess of such limitations, if and to
the extent such disposition is permitted by applicable law.
Notwithstanding anything in the Deposit Agreement or this Receipt or
any Receipt(s) to the contrary, under no circumstances shall the restrictions on
ownership set forth in Section 3.05 of the Deposit Agreement authorize or
require the Depositary or the Company to seek to void, nullify or rescind any
sale or transfer of ADSs effected over the New York Stock Exchange.
Applicable laws and regulations may require holders and beneficial
owners of Shares, including the Holders and Beneficial Owners of ADSs, to
satisfy reporting requirements and obtain regulatory approvals in certain
circumstances. Holders and Beneficial Owners of ADSs are solely responsible for
A-21
determining and complying with such reporting requirements, and for obtaining
such approvals. Each Holder and each Beneficial Owner hereby agrees to make such
determination, file such reports, and obtain such approvals to the extent and in
the form required by applicable laws and regulations as in effect from time to
time. None of the Depositary, the Custodian, the Company or any of their
respective agents or affiliates shall be required to take any actions whatsoever
on behalf of Holders or Beneficial Owners of ADSs to determine and satisfy such
reporting requirements or obtain such regulatory approvals under applicable laws
and regulations.
A-22
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
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Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held.
other free stock
distributions, or
(ii) exercise of rights to
purchase additional ADSs.
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(5) Distribution of securities Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
-------------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $2.00 per 100 ADSs (or Person holding ADSs on applicable
fraction thereof) held. record date(s) established by the
Depositary.
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B-1
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Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(7) Transfer of ADRs. U.S. $1.50 per certificate Person presenting certificate for
presented for transfer. transfer.
-------------------------------------------------------------------------------------------------------------------
II. Charges
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for 2cancellation and for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
o taxes (including applicable interest and penalties) and other
governmental charges;
o such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
o such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
o the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
o such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
o the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the servicing or
delivery of Deposited Securities.
B-2
