WIDERTHAN CO., LTD. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of December , 2005
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of December , 2005
TABLE
OF CONTENTS
|
Page
|
||||
| PARTIES | 1 | |||
| RECITALS | 1 | |||
| Section 1. | Certain Definitions | |||
|
(a)
|
ADR Register | 1 | ||
|
(b)
|
ADRs; Direct Registration ADRs | 1 | ||
|
(c)
|
|
ADS | 1 | |
|
(d)
|
CSD | 1 | ||
|
(e)
|
Custodian | 1 | ||
|
(f)
|
Deliver, execute, issue et al. | 1 | ||
|
(g)
|
Delivery Order | 1 | ||
|
(h)
|
Deposited Securities | 1 | ||
|
(i)
|
Direct Registration System | 1 | ||
|
(j)
|
Holder | 1 | ||
|
(k)
|
|
Securities Act of 1933 | 1 | |
|
(l)
|
Securities Exchange Act of 1934 | 1 | ||
|
(m)
|
Shares | 1 | ||
|
(n)
|
Transfer Office | 1 | ||
|
(o)
|
Withdrawal Order | 1 | ||
| Section 2. | ADRs | 2 | ||
| Section 3. | Deposit of Shares | 3 | ||
| Section 4. | Issue of ADRs | 4 | ||
| Section 5. | Distributions on Deposited Securities | 4 | ||
| Section 6. | Withdrawal of Deposited Securities | 4 | ||
| Section 7. | Substitution of ADRs | 5 | ||
| Section 8. | Cancellation and Destruction of ADRs | 5 | ||
| Section 9. | The Custodian | 5 | ||
| Section 10. | Co-Registrars and Co-Transfer Agents | 5 | ||
| Section 11. | Lists of Holders | 5 | ||
| Section 12. | Depositary's Agents | 6 | ||
| Section 13. | Successor Depositary | 6 | ||
| Section 14. | Reports | 6 | ||
| Section 15. | Additional Shares | 6 | ||
| Section 16. | Indemnification | 6 | ||
| Section 17. | Notices | 7 | ||
| Section 18 | Miscellaneous | 8 | ||
| Section 19. | Governing Law | 8 | ||
| Section 20. | Consent to Jurisdiction | 9 | ||
| TESTIMONIUM | 10 | |||
| SIGNATURES | 10 | |||
i
EXHIBIT
A
| Page | ||||
| FORM OF FACE OF ADR |
A-1
|
|||
| Introductory Paragraph | A-1 | |||
|
(1)
|
Issuance
of ADRs
|
A-2 | ||
|
(2)
|
Withdrawal
of Deposited Securities
|
A-2 | ||
| (3) | Transfers of ADRs | A-3 | ||
| (4) |
Certain
Limitations
|
A-3 | ||
| (5) |
Taxes
|
A-4 | ||
| (6) | Disclosure of Interests | A-5 | ||
| (7) | Charges of Depositary | A-6 | ||
| (8) | Available Information | A-7 | ||
| (9) | Execution | A-7 | ||
| Signature of Depositary | A-7 | |||
| Address of Depositary's Office | A-7 | |||
| FORM OF REVERSE OF ADR | A-8 | |||
| (10) |
Distributions
on Deposited Securities
|
A-8 | ||
| (11) | Record Dates | A-9 | ||
| (12) |
Voting
of Deposited Securities
|
A-9 | ||
| (13) |
Changes
Affecting Deposited Securities
|
A-10 | ||
| (14) |
Exoneration
|
A-10 | ||
| (15) |
Resignation
and Removal of Depositary; the Custodian
|
A-11 | ||
| (16) |
Amendment
|
A-11 | ||
| (17) |
Termination
|
A-12 | ||
| (18) |
Further
Assurances
|
A-12 | ||
ii
DEPOSIT
AGREEMENT dated as of December , 2005 (the "Deposit Agreement") among
WIDERTHAN CO., LTD. and its successors (the "Company"), JPMORGAN CHASE BANK,
N.A., as depositary hereunder (the "Depositary"), and all holders from time
to
time of American Depositary Receipts issued hereunder ("ADRs") evidencing
American Depositary Shares ("ADSs") representing deposited Shares (defined
below). The Company hereby appoints the Depositary as depositary for the
Deposited Securities and hereby authorizes and directs the Depositary to
act in
accordance with the terms set forth in this Deposit Agreement. The parties
hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder. ADRs may
be
either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the
form
of Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of
ADR
shall be binding upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR initially represents the right to receive one Share and
a
pro rata share in any other Deposited Securities.
(d)
"CSD".
means
any institution authorized under the applicable law to
effect
book-entry transfers of securities of Korean corporations, which may
include
Korea Securities Depository.
(e) "Custodian"
means
the agent or agents of the Depositary (singly or collectively, as the context
requires) and any additional or substitute Custodian appointed pursuant to
Section 9.
(f)
The
terms
"deliver",
"deposit", "execute",
"issue",
"register",
"surrender",
"transfer",
"cancel"
or
"withdraw", when used with respect to Direct Registration ADRs, shall refer
to
an entry or entries or an electronic transfer or transfers in the Direct
Registration System, and, when used with respect to ADRs in physical
certificated form, shall refer to the physical delivery, deposit, execution,
issuance, registration, surrender, transfer, cancellation or withdrawal of
certificates representing the ADRs.
(g) "Delivery
Order"
is
defined in Section 3.
1
(h) "Deposited
Securities"
as of
any time means all Shares at such time deposited under this Deposit Agreement
and any and all other Shares, securities, property and cash at such time
held by
the Depositary or the Custodian in respect or in lieu of such deposited Shares
and other Shares, securities, property and cash.
(i)
"Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record
the
ownership of ADRs without the issuance of a certificate, which ownership
shall
be evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto. For purposes hereof, the Direct Registration System shall
include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary.
(j) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(k) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time to time
amended.
(l) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act of 1934, as from time to time
amended.
(m) "Shares"
mean
the common shares of the Company and shall include the rights to receive
Shares
specified in paragraph (1) of the form of ADR.
(n) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(o) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at
the discretion of the Depositary in accordance with its customary practices
in
its American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder,
any
applicable law, regulation or usage or to indicate any special limitations
or
restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
2
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the form of ADR
to the
contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the form of ADR, regardless of whether their ADRs are Direct Registration
ADRs or certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or the Custodian
may require the following in form satisfactory to it: (a) a written order
directing the Depositary to issue to, or upon the written order of, the person
or persons designated in such order a Direct Registration ADR or ADRs evidencing
the number of ADSs representing such deposited Shares (a "Delivery Order");
(b)
proper endorsements or duly executed instruments of transfer in respect of
such
deposited Shares; (c) instruments assigning to the Custodian or its nominee
any
distribution on or in respect of such deposited Shares or indemnity therefor;
and (d) proxies entitling the Custodian to vote such deposited Shares. As
soon
as practicable after the Custodian receives Deposited Securities pursuant
to any
such deposit or pursuant to paragraph (10) or (13) of the form of ADR, the
Depositary shall arrange that the Custodian shall, as soon as transfer and
recordation can be accomplished, transfer and record the Shares being deposited
in the name of the Depositary or, subject to applicable law, its nominee
on the
shareholders' register or the books of the CSD, if applicable. Deposited
Securities shall 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, subject to the applicable laws of Korea, in all
cases at the cost and expense of the person making such deposit (or for whose
benefit such deposit is made). Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated
in
this Deposit Agreement or under applicable laws and regulations of Korea.
To the
extent that the provisions of or governing the Shares make delivery of
certificates therefor impracticable, Shares may be deposited hereunder by
such
delivery thereof as the Depositary or the Custodian may reasonably accept,
including, without limitation, by causing them to be credited to an account
maintained by the Custodian for such purpose with the Company or an accredited
intermediary, such as a bank, acting as a registrar for the Shares, together
with delivery of the documents, payments and Delivery Order referred to herein
to the Custodian or the Depositary.
The
Company shall from time to time notify the Depositary and the Custodian in
writing with respect to any such restrictions on the deposit of its Shares.
To
the extent no such written notification shall have been received by the
Depositary, the Depositary shall be protected in acting hereunder as if no
such
restriction exists. To the extent a deposit of Shares would result in the
number
of Shares on deposit with the Custodian exceeding the maximum number of Shares
theretofore consented to by the Company as being permitted to be represented
by
ADSs, the Depositary will not accept the deposit of such Shares unless and
until
the Company shall have consented thereto in writing.
3
At
any
time as the number of Shares represented by outstanding ADSs exceeds the
number
permitted, no ADSs above such number may be issued on the deposit of Shares
without the Company's prior consent. The number of Shares permitted to be
on
deposit represented by ADSs shall be automatically adjusted to give effect
to
any securities deposited by the Company in connection with (x) offerings
of
rights to acquire additional ADSs, (y) share dividends and other free
distributions of shares, and/or (z) a subdivision of Shares, if any, and
may be
further increased as agreed from time to time by the Company and the Depositary.
4.
Issue
of ADRs.
Upon
receipt by a Custodian of a deposit pursuant to Section 3 hereunder and a
proper
acknowledgment or other evidence (i) from the Company (or the appointed agent
of
the Company for transfer and registration of Shares), satisfactory to the
Depositary that any Deposited Securities are properly recorded upon the
shareholders' register of the Company (or such agent) maintained for that
purpose in the name of the Depositary or its nominee or (ii) where such deposit
is made by 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 together with the other documents required hereunder, the Depositary
shall require that the Custodian shall notify the Depositary of such deposit
and
of the information contained in any related Delivery Order by letter, first
class airmail postage prepaid, or, at the request, risk and expense of the
person making the deposit, by cable, telex or facsimile transmission. After
receiving such notice from the Custodian, the Depositary, subject to this
Deposit Agreement, shall properly issue at the Transfer Office, to or upon
the
order of any person named in such notice, an ADR or ADRs registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its discretion, after consultation
with
the Company if practicable, that any distribution pursuant to paragraph (10)
of
the form of ADR is not practicable with respect to any Holder, the Depositary
may make such distribution as it so deems practicable, including the
distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to
such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the Depositary may
require
proper endorsement in blank of such ADR (or duly executed instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited Securities represented by the ADSs evidenced
by such ADR to be withdrawn and delivered to, or upon the written order of,
any
person designated in such order (a "Withdrawal Order"). Directions from the
Depositary to the Custodian to deliver Deposited Securities shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder, by cable, telex or facsimile transmission. Delivery
of
Deposited Securities may be made by the delivery of certificates (which,
if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal
Order)
or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account
designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
4
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration ADR in exchange
and substitution for any mutilated certificated ADR upon cancellation thereof
or
in lieu of and in substitution for such destroyed, lost or stolen certificated
ADR, unless the Depositary has notice that such ADR has been acquired by
a bona
fide purchaser, upon the Holder thereof filing with the Depositary a request
for
such execution and delivery and a sufficient indemnity bond and satisfying
any
other reasonable requirements imposed by the Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy ADRs in certificated form so cancelled
in
accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it
The
Depositary
shall be responsible for the compliance by the Custodian with any applicable
provisions of the Deposit Agreement. The Depositary may from time to time,
after
consultation with the Company if practicable, appoint one or more agents
to act
for it as Custodian hereunder. Each Custodian so appointed (other than JPMorgan
Chase Bank, N.A.) shall give written notice to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any Custodian may resign from its duties hereunder by at least 30
days
written notice to the Depositary. The Depositary, after consultation with
the
Company if practicable, may discharge any Custodian at any time upon notice
to
the Custodian being discharged. Any Custodian ceasing to act hereunder as
Custodian shall deliver, upon the instruction of the Depositary, all Deposited
Securities held by it to a Custodian continuing to act. 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, each of which shall thereafter be a
Custodian hereunder.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars to register ADRs and
transfers, combinations and split-ups of ADRs and to countersign ADRs in
accordance with the terms of any such appointment and (ii) co-transfer agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer offices in addition to the Transfer Office on behalf
of the
Depositary. Each co-registrar or co-transfer agent (other than JPMorgan Chase
Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
of
this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and
its agents and the ADR Register, take copies thereof and require the Depositary
and its agents to supply copies of such portions of such records as the Company
may request. The Depositary or its agent shall furnish to the Company promptly
upon the written request of the Company, a list of the names, addresses and
holdings of ADSs by all Holders as of a recent date of the Depositary's receipt
of such request.
5
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement through
any
agent appointed by it, provided that the Depositary shall notify the Company
of
such appointment and shall remain responsible for the performance of such
obligations as if no agent were appointed.
13.
Successor
Depositary.
Unless
otherwise agreed in writing: (i) the Depositary may at any time resign as
Depositary hereunder by at least 30 days prior written notice of its election
so
to do delivered to the Company and (ii) the Depositary may at any time be
removed by the Company by at least 30 days prior written notice of such removal.
Notwithstanding anything to the contrary contained herein, in case at any
time
the Depositary acting hereunder shall resign or be removed, it shall continue
to
act as Depositary for the purpose of terminating this Deposit Agreement pursuant
to paragraph (17) of the form of ADR. Any bank or trust company into or with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer substantially all its American depositary receipt business,
shall
be the successor of the Depositary without the execution or filing of any
document or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or any securities regulatory authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy thereof in English or with an English translation or summary.
The Company has delivered to the Depositary, the Custodian and any Transfer
Office, a copy of all provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company
and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary and its agents
may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with written instructions of the Company 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 securities laws in the United States
or
to prevent violation of the Company's constituent documents or applicable
Korean
laws and regulations.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its
agents against any loss, liability or expense (including reasonable fees
and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs,
as the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary, or (ii) by the Company
or any
of its directors, employees, agents or affiliates.
6
The
indemnities set forth in the preceding paragraph shall apply to any liability
or
expense which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of ADSs, except to the
extent any such liability or expense arises out of (i) information relating
to
the Depositary or its agents (other than the Company), as applicable, furnished
in writing by the Depositary and not changed or altered by the Company unless
such change was made with the written consent of the Depositary expressly
for
use in any of the foregoing documents or (ii) if such information is provided,
the failure to state a material fact necessary to make the information provided
not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the other for any indirect, special, punitive or consequential
damages (collectively "Special Damages") except (i) to the extent such Special
Damages arise from the gross negligence or willful misconduct of the party
from
whom indemnification is sought or (ii) to the extent Special Damages arise
from
or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such
Special
Damages arise out of the gross negligence or willful misconduct of the party
seeking indemnification hereunder.
The
obligations set forth in this Section 16 shall survive the termination of
this
Deposit Agreement and the succession or substitution of any indemnified
person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by
such
Holder. Notice to the Depositary or the Company shall be deemed given when
first
received by it at the address or facsimile transmission number set forth
in (a)
or (b), respectively, or at such other address or facsimile transmission
number
as either may specify to the other by written notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
|
Four
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
7
With
a
courtesy copy (if practicable), which shall not be considered notice hereunder,
to:
| JPMorgan Chase Bank, N.A. |
| [insert HK info] |
| K1 REIT building, 463 |
| Chungjeong-ro 3-ga |
| Seodaemun-gu, Seoul 120 |
| Republic of Korea |
| Attention: Mr. Don Rim |
| Fax: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇ |
| With a courtesy copy (if practicable), which shall not be considered notice hereunder, to: |
| WiderThan Americas Inc. |
| ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ |
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
| Attention: General Counsel |
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ |
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall not give
any
legal or equitable right, remedy or claim whatsoever to any other person.
The
Holders and owners of ADRs from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the provisions hereof. If any such
provision is invalid, illegal or unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
19.
Governing
Law.
The
Deposit Agreement and the ADRs 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.
8
20.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding against
the
Company brought by the Depositary or any Holder, arising out of or based
upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in New York, New York, and, to the
fullest extent permitted by applicable law, irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such
courts in any such suit, action or proceeding. The Company has appointed
WiderThan Americas Inc, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized Agent")
upon
which process may be served in any such action arising out of or based on
this
Deposit Agreement or the transactions contemplated hereby which may be
instituted in any state or federal court in New York, New York by the Depositary
or any Holder, and, to the fullest extent permitted by applicable law, waives
any other requirements of or objections to personal jurisdiction with respect
thereto. The Company represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and the Company agrees
to
take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company. If, for any reason, the
Authorized Agent named above or its successor shall no longer serve as agent
of
the Company to receive service of process in New York, the Company shall
promptly appoint a successor acceptable to the Depositary, so as to serve
and
will promptly advise the Depositary thereof. 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 five (5) days after
the
same shall have been so mailed. Notwithstanding the foregoing, any action
based
on this Agreement may be instituted by the Depositary or any Holder in any
competent court in the Republic of Korea.
To
the
extent that the Company or any of its properties, assets or revenues may
have or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution
or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect
to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim,
any
such immunity and consents to such relief and enforcement.
9
IN
WITNESS WHEREOF, WIDERTHAN CO., LTD. and JPMORGAN CHASE BANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth
and
all holders of ADRs shall become parties hereto upon acceptance by them of
ADRs
issued in accordance with the terms hereof.
| WIDERTHAN CO., LTD. | |||
| By: | |||
| Name: | Sang ▇▇▇ ▇▇▇▇ | ||
| Title: | Representative Director and CEO | ||
| JPMORGAN CHASE BANK, N.A. | |||
| By: | |||
| Name: | |||
| Title: | Vice President | ||
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
_
No.
of
ADSs:
Number
| Each ADS represents | |||
| One Share | |||
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
(Incorporated
under the
laws
of
the Republic of Korea)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws
of the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that _____
is the
registered owner (a "Holder") of _____
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing
one
common shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of WiderThan Co., Ltd., a corporation organized
under the laws of the Republic of Korea (the "Company"), deposited under
the
Deposit Agreement dated as of December , 2005 (as amended from time to time,
the
"Deposit Agreement") among the Company, the Depositary and all Holders from
time
to time of American Depositary Receipts issued thereunder ("ADRs"), each
of whom
by accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) to the extent not prohibited
by applicable law and unless requested in writing to cease doing so at least
two
New York business days before a proposed deposit, other rights to receive
Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or such other collateral as the Depositary
deems appropriate held by the Depositary for the benefit of Holders (but
such
collateral shall not constitute "Deposited Securities"), (ii) each recipient
of
Pre-released ADRs agrees in writing with the Depositary that such recipient
(a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary in its capacity as such, (c) holds such Shares for the
account
of the Depositary and (d) will deliver such Shares to the Custodian as soon
as
practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs
evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems reasonably appropriate, and may, with the prior consent
of the
Company, change such limit for the purposes of general application. The
Depositary will also set limits with respect to the number of Pre-released
ADRs
involved in transactions to be done hereunder with any one person on a case
by
case basis as it deems reasonably appropriate. The Depositary may retain
for its
own account any earnings on collateral for Pre-released ADRs and its charges
for
issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian
and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares
are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized
so to
do and that such Shares (A) are not "restricted securities" as such term
is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and
may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary
will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered;
the
Depositary shall refuse to accept for such deposit any Shares specifically
identified in writing by the Company in order to facilitate the Company's
compliance with the securities laws in the United States or to prevent violation
of the Company's constituent documents or applicable Korean laws and
regulations.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5) and applicable laws, upon surrender of (i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, the Holder hereof is entitled to delivery at, or in the
case
of Deposited Securities in dematerialized form from, the Custodian's office
of
the Deposited Securities at the time represented by the ADSs evidenced by
this
ADR. At the request, risk and expense of the Holder hereof and to the extent
not
prohibited by applicable laws, the Depositary may deliver such Deposited
Securities at such other place as may have been requested by the
A-2
Holder.
As of the date of the Deposit Agreement, a Holder who wants to withdraw Shares
must register its identity with the Financial Supervisory Service of Korea
before the acquisition of Shares if such registration has not been made unless
such Holder intends to sell the Shares within three months. Notwithstanding
any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in
General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from
time
to time) or any successor provision thereto under the Securities Act of
1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration
ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company
or a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to
any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and
may be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
aggregate number of ADSs surrendered for split-up or combination, by the
Holder
hereof or by duly authorized attorney upon surrender of this ADR at the Transfer
Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped
as
may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR
with a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject
to the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4),
the
Company, the Depositary or the Custodian may require: (a) payment with
respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity of any signatory
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange
control
approval, beneficial ownership of any securities, payment of applicable
Korean
or other taxes or governmental charges, or legal or beneficial ownership
and the
nature of such interest, information relating to the registration on the
shareholders' register of the Company (or the appointed agent of the Company
for
the transfer and registration of Shares) or the books of the CSD of the
Shares
presented for deposit, compliance with applicable law, regulations, provisions
of or governing Deposited Securities and terms of the Deposit Agreement
and this
ADR, as it may deem necessary or proper; and (c) compliance with such reasonable
regulations as the Depositary may establish consistent with the Deposit
Agreement. As a condition of accepting Shares for deposit, the Depositary
may
require that the person making such deposit furnish evidence satisfactory
to the
Depositary (which may be an opinion of counsel) that any necessary approvals
have been waived or granted by any governmental or quasi-governmental body
or
agency in Korea, including, without limitation, any such body which is
then
performing the function of regulation of currency exchange. The issuance
of
ADRs, the acceptance of deposits of Shares, the registration, registration
of
transfer, split-up or combination of ADRs or, subject to the last sentence
of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register, any register
for
Deposited Securities is closed, the books of the CSD are closed, or when
any
such action is deemed advisable by the Depositary or the Company by reason
of
any requirement of law or governmental or governmental body or commission
rule
or regulation.
A-3
(5)
Taxes.
Holders
hereof and owners of an interest herein acknowledge that cash distributions
in
respect of Deposited Securities may be subject to withholding for taxes under
Korean law, and the Company will withhold for taxes any amounts that it is
required to withhold under applicable Korean law. If any tax or other
governmental charge shall become payable by or on behalf of the Custodian
or the
Depositary with respect to this ADR, any Deposited Securities represented
by the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall be paid by the Holder hereof to the Depositary.
The
Depositary may refuse to effect any registration, registration of transfer,
split-up or combination hereof or, subject to the last sentence of paragraph
(2), any withdrawal of such Deposited Securities until such payment is made.
The
Depositary may also deduct from any distributions on or in respect of Deposited
Securities, or may sell by public or private sale for the account of the
Holder
hereof any part or all of such Deposited Securities (after attempting by
reasonable means to notify the Holder hereof prior to such sale), for the
purpose of applying such deduction or proceeds to taxes or other governmental
charges, and may apply such deduction or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder hereof remaining
liable for any deficiency, and shall reduce the number of ADSs evidenced
hereby
to reflect any such sales of Shares. In connection with any distribution
to
Holders, the Company or its agent will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority or agency by the Company or its agent; and the Depositary
and the
Custodian, or an agent of either of them, will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Depositary or the Custodian.
If the
Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax
that
the Depositary or the Custodian is obligated to withhold, the Depositary
may
dispose of all or a portion of such property in such amounts and in such
manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of
any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto. The Depositary shall forward to the Company
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. Notwithstanding any other provision of the Deposit Agreement or
this
ADR ,before making any distribution or other payment on any Deposited
Securities, the Company shall make such deductions (if any) which, by the
laws
of Korea,
A-4
the
Company is required to make in respect of any income, capital gains or other
taxes and the Company may also deduct the amount of any tax or governmental
charges payable by the Company or for which the Company might be made liable
in
respect of such distribution or other payment or any document signed in
connection therewith. In making such deductions, neither the Company nor
the
Depositary shall have any obligation to any Holder to apply a rate under
any
treaty or other arrangement between Korea and the country within which such
Holder is resident unless such Holder has timely provided to the Company
(directly or through the Depositary) evidence of the residency of such Holder
that is accepted by the relevant tax authorities of Korea. Each Holder of
an ADR
or an interest therein agrees to indemnify the Depositary, the Company, the
Custodian and any of their respective directors, employees, agents and
affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties
or
interest arising out of any refund of taxes, reduced rate of withholding
at
source or other tax benefit obtained. 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 or the Custodian 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. If the Company (or any of its
agents)
withholds from any distribution or other payment any amount on account of
taxes
or governmental charges, or pays any other tax in respect of such distribution
or other payment, the Company shall (and cause such agent to) remit promptly
to
the Depositary information about such taxes or governmental charges withheld
and
paid, and the tax receipt (or other proof of payment from the applicable
governmental authority therefor.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to comply with any reasonable
Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so as to permit the Company to deal directly with the Holder thereof
as a holder of Shares and Holders agree to comply with such instructions.
The
Depositary agrees to cooperate with the Company in its efforts to inform
Holders
of the Company's exercise of its rights under this paragraph and agrees to
consult with, and provide reasonable assistance without risk, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
A-5
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and
Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, U.S. $5.00 for
each
100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell
(by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred
by the Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable
(i) a
fee of $.02 or less per ADS (or portion thereof) for any Cash distribution
made
pursuant to the Deposit Agreement, (ii) to the extent not prohibited by the
rules of the primary stock exchange upon which the ADSs are listed, a fee
of
$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii)
a fee for the distribution or sale of securities pursuant to paragraph (10)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (7) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary
to
Holders entitled thereto, (iv) a fee of US$0.02 per ADS (or portion thereof)
per
year for the services performed by the Depositary in administering the ADRs
(which fee shall be assessed against Holders as of the record date or dates
set
by the Depositary not more than once each calendar year and shall be payable
at
the sole discretion of the Depositary by billing Holders or by deducting
such
charge from one or more cash dividends or other cash distributions), and
(v)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation.
The
Company will pay all other charges and expenses of the Depositary and any
agent
of the Depositary (except the Custodian) pursuant to agreements from time
to
time between the Company and the Depositary, except (i) stock transfer or
other
taxes and other governmental charges (which are payable by Holders or persons
depositing Shares), (ii) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration or transfer
of Deposited Securities on any applicable register or the books of the CSD,
in
any case in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary's agents, including, without limitation, the custodian,
or
the agents of the Depositary's agents in connection with the servicing of
the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders
or by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
A-6
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished
by the
Company. The Company is subject to the periodic reporting requirements of
the
Securities Exchange Act of 1934 and accordingly files certain reports with
the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at ▇▇▇
▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| By__________________________ | ||
| Authorized Officer |
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-7
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
promptly distribute to each Holder entitled thereto on the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution
or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be
made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as
a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions
and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable,
or (ii) to the extent the Depositary deems distribution of such securities
or
property not to be equitable and practicable, any U.S. dollars available
to the
Depositary from the net proceeds of sales of Other Distributions as in the
case
of Cash. Such U.S. dollars available will be distributed by checks drawn
on a
bank in the United States for whole dollars and cents. Fractional cents will
be
withheld without liability and dealt with by the Depositary in accordance
with
its then current practices.
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(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a
record
date (which, to the extent applicable and practicable, shall be the same
as or
as near as practicable to any corresponding record date set by the Company)
for
the determination of the Holders who shall be responsible for the fee assessed
by the Depositary for administration of the ADR program and for any expenses
provided for in paragraph (7) hereof as well as for the determination of
the
Holders who shall be entitled to receive any distribution on or in respect
of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will,
subject
to applicable provisions of Korean law, be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c)
the
manner in which such instructions may be given, including instructions to
give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before
the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the extent such
instructions are not so received by the Depositary from any Holder, the
Depositary shall take such action as is necessary, upon the written request
of
the Company and subject to applicable law, and the terms and conditions of
the
Deposited Securities, to cause such underlying Shares to be counted for the
purposes of satisfying applicable quorum requirements; provided, however
that,
except to the extent Holders and beneficial owners of ADSs have been given
at
least 30 days to provide the Depositary with voting instructions, the Shares
shall not be so counted with respect to any matter as to which the Company
informs the Depositary (and the Company agrees to provide such information
promptly in writing) or the Depositary reasonably believes that (x) substantial
opposition exists or (y) materially affects the rights of holders of Shares.
For
purposes hereof, by way of example and not limitation, it is agreed that
routine
matters, such as appointing auditors and directors (except where a competing
director or slate of directors is proposed), and resolutions to approve the
public offering or private placement of de minimis amounts of securities
(i.e.
issuances of Shares which, based on the number of Shares issued and outstanding
prior to giving effect to such issuance, represents less than ten percent
of the
then outstanding Shares), would not materially affect the rights of holders
of
Shares. There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable such Holder to return voting instructions to the Depositary in a timely
manner.
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(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4), (5) and (16) (in the case of substantive changes to
the terms
hereof), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange)
or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation
or
other reclassification of Deposited Securities, any Share Distribution
or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and
the
Depositary is hereby authorized to surrender any Deposited Securities to
any
person and, irrespective of whether such Deposited Securities are surrendered
or
otherwise cancelled by operation of law, rule, regulation or otherwise,
to sell
by public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets
of the
Company, and to the extent the Depositary does not so amend this ADR or
make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the
foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR
shall
automatically represent its pro rata interest in the Deposited Securities
as
then constituted.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur
no
liability (i) if any present or future law, rule or regulation of the United
States, the Republic of Korea or any other country, or of any governmental
or
regulatory authority or any securities exchange or market or automated
quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's charter, any act of God, war, terrorism
or
other circumstance beyond its control shall prevent, delay or subject to
any
civil or criminal penalty any act which the Deposit Agreement or this ADR
provides shall be done or performed by it or them (including, without
limitation, voting pursuant to paragraph (12) hereof), or (ii) by reason
of any
exercise or failure to exercise any discretion given it in the Deposit
Agreement
or this ADR; (b) assume no liability except to perform its obligations
to the
extent they are specifically set forth in this ADR and the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary
and its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this
ADR; (d)
in the case of the Company and its agents hereunder, be under no obligation
to
appear in, prosecute or defend any action, suit or other proceeding in
respect
of any Deposited Securities or this ADR, which in its opinion may involve
it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished
as
often as may be required; or (e) not be liable for any action or inaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
reasonably believed by it to be competent to give such advice or information.
The Depositary, its agents and the Company may rely and shall be protected
in
acting upon any written notice, request, direction or other document believed
by
them to be genuine and to have been signed or presented by the proper party
or
parties. The Depositary and its agents will not be responsible for any
failure
to carry out any instructions to vote any of the Deposited Securities,
for the
manner in which any such vote is cast or for the effect of any such vote.
For
the avoidance of doubt, the Depositary shall have no responsibility whatsoever
to the Company, any Holder or beneficial owner or any other person with
respect
to any deficiency which might arise because the Depositary is subject to
any tax
in respect of the Deposited Securities or any part thereof or any income
therefrom or any proceeds thereof. The Depositary and its agents may own
and
deal in any class of securities of the Company and its affiliates and in
ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the Depositary and its agents may fully respond to any and all
demands
or requests for information maintained by or on its behalf in connection
with
the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise
related hereto to the extent such information is requested or required
by or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or
other
regulators. The Company has agreed to indemnify the Depositary and its
agents
under certain circumstances and the Depositary has agreed to indemnify
the
Company under certain circumstances. Neither the Company nor the Depositary
nor
any of their respective agents shall be liable to Holders or beneficial
owners
of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is
intended
by any provision hereof.
A-10
(15)
Resignation
and Removal of Depositary; the Custodian.
Unless
otherwise agreed in writing, the Depositary may resign as Depositary by at
least
30 days prior written notice of its election to do so delivered to the Company,
or be removed as Depositary by the Company by at least 30 days prior written
notice of such removal delivered to the Depositary. The Depositary may appoint
substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the mutual agreement of the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body or regulatory
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the ADR at any time in accordance with such changed laws, rules
or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
A-11
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
(18)
Further
Assurances.
The
Holders and each person holding an interest in this or any ADR shall take,
and
the Depositary is hereby authorized to take on their behalf, such additional
actions as may be necessary or appropriate under applicable law in order to
effectuate, carry out and perform all of the terms, conditions and purposes
of
the Deposit Agreement, all the transactions contemplated by the Deposit
Agreement, including, without limitation, the designation of one of the Holders
or persons holding an interest in this or any ADR as the representative of
all
Holders and persons holding an interest in ADRs.
A-12