EXECUTION VERSION
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REGULATION S DEPOSIT AGREEMENT
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by and among
KOOKMIN BANK
AND
CITIBANK, N.A.
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
FROM TIME TO TIME OF
REGULATION S GLOBAL DEPOSITARY SHARES
EVIDENCED BY REGULATION S GLOBAL DEPOSITARY RECEIPTS
ISSUED HEREUNDER
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Dated as of June 21, 2005
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS......................................................................................................2
Section 1.01 "Affiliate"...........................................................................2
Section 1.02 "Applicant"...........................................................................2
Section 1.03 "Articles of Incorporation"...........................................................2
Section 1.04 "Beneficial Owner"....................................................................2
Section 1.05 "Clearstream".........................................................................2
Section 1.06 "Commission"..........................................................................2
Section 1.07 "Company".............................................................................2
Section 1.08 "CSD".................................................................................2
Section 1.09 "Custodian"...........................................................................3
Section 1.10 Deliver; Deposit; Surrender; Transfer; Withdraw.......................................3
Section 1.11 "Deposit Agreement"...................................................................3
Section 1.12 "Depositary"..........................................................................3
Section 1.13 "Deposited Securities"................................................................3
Section 1.14 "Dollars" or "$"......................................................................3
Section 1.15 "Euroclear"...........................................................................3
Section 1.16 "Foreign Currency"....................................................................3
Section 1.17 "Foreign Registrar"...................................................................3
Section 1.18 "Full Entitlement Regulation S GDR(s)," "Full Entitlement Regulation
S GDS(s)" and "Full Entitlement Share(s)".............................................4
Section 1.19 "Holder"..............................................................................4
Section 1.20 "Initial Deposit".....................................................................4
Section 1.21 "Korea"...............................................................................4
Section 1.22 "Master Regulation S GDR".............................................................4
Section 1.23 "Partial Entitlement Regulation S GDR(s)," "Partial Entitlement
Regulation S GDS(s)" and "Partial Entitlement Share(s)"...............................4
Section 1.24 "Participant".........................................................................4
Section 1.25 "Pre-Release Transaction".............................................................4
Section 1.26 "Principal London Office".............................................................4
Section 1.27 "Principal New York Office"...........................................................5
Section 1.28 "Receipts," "Regulation S Global Depositary Receipts" or "Regulation
S GDRs"...............................................................................5
Section 1.29 "Registrar"...........................................................................5
Section 1.30 "Regulation S"........................................................................5
Section 1.31 "Regulation S Global Depositary Shares" or "Regulation S GDSs"........................5
Section 1.32 "Restricted Period"...................................................................5
Section 1.33 "Rule 144"............................................................................6
Section 1.34 "Securities Act"......................................................................6
Section 1.35 "Securities Act Legend"...............................................................6
Section 1.36 "Securities Exchange Act".............................................................7
Section 1.37 "Shares"..............................................................................7
Section 1.38 "Stock Market Division of the Korea Exchange".........................................7
Section 1.39 "Subsidiary"..........................................................................7
Section 1.40 "United States" and "U.S."............................................................8
Section 1.41 "Won".................................................................................8
ARTICLE II
APPOINTMENT OF DEPOSITARY, BOOK-ENTRY SYSTEM, FORM OF REGULATION S GDRs, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF REGULATION S GDRs.............................................8
Section 2.01 Appointment of Depositary.............................................................8
Section 2.02 Book-Entry System; Form and Transferability of Regulation S GDRs......................9
Section 2.03 Deposit of Shares....................................................................11
Section 2.04 Registration of Shares...............................................................13
Section 2.05 Execution and Delivery of Regulation S GDRs..........................................14
Section 2.06 Transfer, Combination and Split-up of Regulation S GDRs..............................14
Section 2.07 Surrender of Regulation S GDRs and Withdrawal of Deposited
Securities...........................................................................15
Section 2.08 Limitations on Execution and Delivery, Transfer, Etc., of Regulation
S GDRs; Suspension of Delivery, Transfer, Etc........................................17
Section 2.09 Lost Regulation S GDRs, Etc..........................................................18
Section 2.10 Cancellation and Destruction of Surrendered Regulation S GDRs;
Maintenance of Records...............................................................18
Section 2.11 Partial Entitlement Regulation S GDSs................................................18
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF REGULATION S GDSs......................................19
Section 3.01 Proofs, Certificates and Other Information...........................................19
Section 3.02 Liability of Holders and Beneficial Owners for Taxes and Other
Charges..............................................................................20
Section 3.03 Representations and Warranties on Deposit, Transfer, Surrender and
Withdrawal of Shares or Regulation S GDRs............................................20
Section 3.04 Compliance with Information Requests.................................................21
Section 3.05 Ownership Restrictions...............................................................21
ARTICLE IV
THE DEPOSITED SECURITIES........................................................................................22
Section 4.01 Cash Distributions...................................................................22
Section 4.02 Distributions in Shares..............................................................23
Section 4.03 Elective Distributions...............................................................23
Section 4.04 Distributions of Rights to Purchase Additional Regulation S GDSs.....................24
Section 4.05 Distributions Other Than Cash, Shares or Rights to Purchase Shares...................26
Section 4.06 [Intentionally Omitted.].............................................................26
Section 4.07 [Intentionally Omitted]..............................................................26
Section 4.08 Conversion of Foreign Currency.......................................................26
Section 4.09 Fixing of Record Date................................................................27
Section 4.10 Voting of Deposited Securities.......................................................28
Section 4.11 Changes Affecting Deposited Securities...............................................29
Section 4.12 Transmittal by the Depositary of Company Notices, Reports and
Communications.......................................................................30
Section 4.13 Taxation.............................................................................30
Section 4.14 Available Information................................................................32
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...................................................................32
Section 5.01 Maintenance of Depositary's Office and Register......................................32
Section 5.02 Exoneration..........................................................................33
Section 5.03 Standard of Care.....................................................................33
Section 5.04 Resignation and Removal of the Depositary; Appointment of Successor
Depositary...........................................................................35
Section 5.05 Fees and Charges of Depositary.......................................................35
Section 5.06 The Custodian........................................................................36
Section 5.07 Notices and Reports..................................................................36
Section 5.08 Issuance of Additional Shares, Etc...................................................37
Section 5.09 Indemnification......................................................................38
Section 5.10 Pre-Release Transactions.............................................................39
Section 5.11 List of Regulation S GDR Holders.....................................................40
ARTICLE VI
AMENDMENT AND TERMINATION.......................................................................................40
Section 6.01 Amendment/Supplement.................................................................40
Section 6.02 Termination..........................................................................41
ARTICLE VII
MISCELLANEOUS...................................................................................................42
Section 7.01 Counterparts.........................................................................42
Section 7.02 No Third Party Beneficiaries.........................................................42
Section 7.03 Severability.........................................................................42
Section 7.04 Holders and Beneficial Owners as Parties; Binding Effect.............................42
Section 7.05 Notices..............................................................................42
Section 7.06 Governing Law and Jurisdiction.......................................................43
Section 7.07 Assignment...........................................................................45
Section 7.08 Korean Law References................................................................45
Section 7.09 Titles...............................................................................45
EXHIBIT A Form of Regulation S GDR.............................................................A-1
EXHIBIT B Charges of the Depositary............................................................B-1
EXHIBIT C [Intentionally Omitted]..............................................................C-1
EXHIBIT D-1 Certification and Agreement..........................................................D-1-1
EXHIBIT D-2 Certification and Agreement..........................................................D-2-1
EXHIBIT D-3 Certification and Agreement..........................................................D-3-1
(iii)
REGULATION S DEPOSIT AGREEMENT
REGULATION S DEPOSIT AGREEMENT, dated as of June 21, 2005, by and among
(i) Kookmin Bank, a company organized under the laws of the Republic of Korea
and its successors (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 (the
"Depositary"), and (iii) all Holders and Beneficial Owners (each as hereinafter
defined) from time to time of the Regulation S Global Depositary Shares
evidenced by Regulation S Global Depositary Receipts issued hereunder (all such
capitalized terms as hereinafter defined).
W I T N E S S E T H THAT:
WHEREAS, the Company has duly authorized and has outstanding shares of
Common Stock, par value of Won 5,000, each (the "Shares"), which are listed for
trading on the Stock Market Division of the Korea Exchange; and
WHEREAS, the Company desires to provide for the initial deposit of Shares
and to establish a mechanism for the deposit of additional Shares from time to
time thereafter with the Custodian (as hereinafter defined), in each case for
the creation of Regulation S Global Depositary Shares representing the Shares so
deposited and for the execution and delivery of Regulation S Global Depositary
Receipts evidencing the Regulation S Global Depositary Shares so created; and
WHEREAS, such Regulation S Global Depositary Shares may be sold in
offshore transactions in accordance with Regulation S (as hereinafter defined)
under the Securities Act (as hereinafter defined) and in compliance with other
applicable laws and be resold by the purchasers of such Regulation S Global
Depositary Shares in accordance with the restrictions on resale set forth in the
Securities Act Legend (as hereinafter defined); and
WHEREAS, the Regulation S Global Depositary Receipts are to be
substantially in the form of Exhibit A annexed hereto with appropriate
insertions, modifications and omissions, as hereinafter provided; and
WHEREAS, the Depositary is willing to act as depositary for such
Regulation S GDR facility upon the terms set forth in this Regulation S Deposit
Agreement; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of a Regulation S GDR facility upon
the terms set forth in this Regulation S Deposit Agreement, the execution and
delivery of this Regulation S Deposit Agreement on behalf of the Company, and
the actions of the Company and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined herein shall have
the meanings set forth below, unless otherwise clearly indicated.
Section 1.01 "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 "Applicant" shall have the meaning given to such term in
Section 5.10 hereof.
Section 1.03 "Articles of Incorporation" shall mean the Korean
constitutive documents of the Company, as in effect from time to time.
Section 1.04 "Beneficial Owner" shall mean, as to any Regulation S GDS,
any person or entity having a beneficial interest deriving from the ownership of
such Regulation S GDS. A Beneficial Owner may or may not be the Holder of the
Regulation S GDR evidencing such Regulation S GDS. A Beneficial Owner shall be
able to exercise any right and receive any benefit hereunder solely through the
person or entity who is the Holder of the Regulation S GDR(s) evidencing the
Regulation S GDSs owned by such Beneficial Owner.
Section 1.05 "Clearstream" shall mean Clearstream Banking, Societe
Anonyme, and any successor thereto.
Section 1.06 "Commission" shall mean the Securities and Exchange
Commission of the United States and any successor governmental agency thereto in
the United States.
Section 1.07 "Company" shall mean Kookmin Bank, a company organized and
existing under the laws of the Republic of Korea, having its principal executive
office at ▇-▇, ▇-▇▇, ▇▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ 100-703, and its
successors.
Section 1.08 "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 1.09 "Custodian" shall mean, as of the date hereof, Korea
Securities Depository, as custodian for the purposes of this Regulation S
Deposit Agreement, and any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.06 as substitute custodian or as additional
custodian hereunder, and the term "Custodian" shall mean all of them,
collectively.
Section 1.10 Deliver; Deposit; Surrender; Transfer; Withdraw shall mean,
or their respective noun forms shall mean, (including to or by the Custodian)
when used in respect of Regulation S Global Depositary Shares, Receipts,
Deposited Securities and Shares shall refer, where the context requires, to (i)
a book-entry or electronic transfer(s) of such securities or (ii) the physical
transfer of certificates representing such securities.
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Section 1.11 "Deposit Agreement" shall mean this Regulation S Deposit
Agreement and all exhibits hereto, as the same may from time to time be amended
and supplemented from time to time in accordance with the provisions hereof.
Section 1.12 "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 this Deposit Agreement, and any
successor depositary.
Section 1.13 "Deposited Securities" shall mean Shares at any time
deposited 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 thereof, subject, in the case of cash, to the provisions of Section 4.08.
The collateral received in connection with Pre-Release Transactions shall not
constitute Deposited Securities.
Section 1.14 "Dollars" or "$" shall mean the lawful currency of the United
States.
Section 1.15 "Euroclear" shall mean Euroclear Bank S.A./N.V., as operator
of a Euroclear system, and any successor thereto.
Section 1.16 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.17 "Foreign Registrar" shall mean the entity which carries out
the function of registrar for the Shares and any successor registrar for the
Shares.
Section 1.18 "Full Entitlement Regulation S GDR(s)," "Full Entitlement
Regulation S GDS(s)" and "Full Entitlement Share(s)" shall have the respective
meanings set forth in Section 2.11.
Section 1.19 "Holder" shall mean the person, from time to time, in whose
name a Receipt 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 Regulation S GDSs evidenced by
the Receipt registered in its name, such person shall be deemed to have all
requisite authority to act on behalf of the Beneficial Owners of the Regulation
S GDSs evidenced by such Receipt, other than as specified by such Beneficial
Owners to the Depositary in writing; provided, that any such notification that
conflicts with any terms of this Deposit Agreement shall be of no force.
Section 1.20 "Initial Deposit" shall mean the initial deposit of Shares by
the Company in connection with the offering of Regulation S GDSs by the Company
pursuant to Regulation S (as hereinafter defined).
Section 1.21 "Korea" shall mean The Republic of Korea.
Section 1.22 "Master Regulation S GDR" shall have the meaning assigned to
it in Section 2.02 hereof.
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Section 1.23 "Partial Entitlement Regulation S GDR(s)," "Partial
Entitlement Regulation S GDS(s)" and "Partial Entitlement Share(s)" shall have
the respective meanings set forth in Section 2.11.
Section 1.24 "Participant" shall mean any financial institution (or any
nominee of such institution) having one or more participant accounts with
Euroclear or Clearstream, as applicable, for receiving, holding and delivering
securities and funds held in such systems.
Section 1.25 "Pre-Release Transaction" shall have the meaning assigned to
it in Section 5.10 hereof.
Section 1.26 "Principal London Office" when used with respect to the
Depositary, shall be the principal office of the Depositary in London, England,
which, at the date of this Deposit Agreement, is located at Citigroup Centre,
Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇.
Section 1.27 "Principal New York Office" when used with respect to the
Depositary, shall be the principal office of the Depositary in New York at which
at any particular time its depositary receipts business shall be administered,
which, at the date of this Regulation S Deposit Agreement, is located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 1.28 "Receipts," "Regulation S Global Depositary Receipts" or
"Regulation S GDRs" shall mean the certificates issued by the Depositary to
evidence Regulation S Global Depositary Shares issued under the terms of this
Regulation S Deposit Agreement, as such Receipts may be amended from time to
time in accordance with the provisions of this Regulation S Deposit Agreement. A
Regulation S GDR may evidence any number of Regulation S Global Depositary
Shares. Where the context requires, the term "Receipt" or "Regulation S GDR"
shall refer to the Master Regulation S GDR.
Section 1.29 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register the ownership, transfers
of Receipts as herein provided, and shall include any co-registrar appointed by
the Depositary for such purposes.
Section 1.30 "Regulation S" shall mean Regulation S promulgated by the
Commission under the Securities Act, as from time to time amended.
Section 1.31 "Regulation S Global Depositary Shares" or "Regulation S
GDSs" shall mean with respect to any Receipt, the rights and interests in the
Deposited Securities granted to the Holders and Beneficial Owners pursuant to
the terms and conditions of this Regulation S Deposit Agreement and the
Regulation S GDRs issued hereunder. Each Regulation S GDS shall represent one
(1) Share until there shall occur a distribution upon Deposited Securities
referred to in Section 4.02 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional Regulation S GDSs are not issued,
and thereafter each Regulation S GDS shall represent the right to receive the
Shares or Deposited Securities specified in such Sections.
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Section 1.32 "Restricted Period" shall mean the period ending forty (40)
days after the later of (i) the commencement of the offerings of (a) Regulation
S GDSs outside the United States in reliance on Regulation S and any other
applicable law in transactions exempt from registration under the Securities
Act, and (b) Shares in Korea in reliance on Regulation S (if any) and (ii) the
closing date with respect to the Regulation S GDSs and the Shares.
Section 1.33 "Rule 144" shall mean Rule 144 promulgated by the Commission
under the Securities Act, as amended from time to time.
Section 1.34 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
Section 1.35 "Securities Act Legend" shall mean the following statement:
NEITHER THIS REGULATION S GDR, NOR THE REGULATION S GDSs EVIDENCED
HEREBY, NOR THE SHARES REPRESENTED THEREBY HAVE BEEN OR WILL BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES. THE OFFER, SALE, PLEDGE OR OTHER
TRANSFER OF THIS REGULATION S GDR, THE REGULATION S GDSs EVIDENCED HEREBY
AND THE SHARES REPRESENTED THEREBY EACH IS SUBJECT TO CERTAIN CONDITIONS
AND RESTRICTIONS. THE HOLDERS AND BENEFICIAL OWNERS HEREOF, BY PURCHASING
OR OTHERWISE ACQUIRING THIS REGULATION S GDR AND THE REGULATION S GDSs
EVIDENCED HEREBY, ACKNOWLEDGE THAT SUCH REGULATION S GDR, THE REGULATION S
GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT AND AGREE FOR THE BENEFIT OF THE
COMPANY AND THE DEPOSITARY THAT THIS REGULATION S GDR, THE REGULATION S
GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE LAWS OF THE STATES, TERRITORIES AND
POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF
SECURITIES AND, PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (DEFINED
AS 40 DAYS AFTER THE LATER OF (I) THE COMMENCEMENT OF THE OFFERINGS OF (A)
REGULATION S GDSs OUTSIDE THE UNITED STATES IN RELIANCE ON REGULATION S
AND ANY OTHER APPLICABLE LAW IN TRANSACTIONS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT, (B) SHARES IN THE REPUBLIC OF KOREA IN RELIANCE
ON REGULATION S AND (II) THE CLOSING DATE WITH RESPECT TO THE REGULATION S
GDSs AND THE SHARES) ONLY (1) OUTSIDE THE UNITED STATES TO A PERSON OTHER
THAN A U.S. PERSON (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER
THE SECURITIES ACT, (2) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT.
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UPON THE EXPIRATION OF THE RESTRICTED PERIOD, THIS REGULATION S GDR,
THE REGULATION S GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED BY
REGULATION S GDSs SHALL NO LONGER BE SUBJECT TO THE RESTRICTIONS ON
TRANSFER PROVIDED IN THIS LEGEND, PROVIDED THAT AT THE TIME OF SUCH
EXPIRATION THE OFFER AND SALE OF THE REGULATION S GDSs EVIDENCED HEREBY
AND THE SHARES REPRESENTED THEREBY BY THE HOLDER THEREOF IN THE UNITED
STATES WOULD NOT BE RESTRICTED UNDER THE SECURITIES LAWS OF THE UNITED
STATES OR ANY STATE, TERRITORY OR POSSESSION OF THE UNITED STATES.
EACH HOLDER AND BENEFICIAL OWNER, BY ITS ACCEPTANCE OF THIS
REGULATION S GDR OR BENEFICIAL INTEREST IN THE REGULATION S GDSs EVIDENCED
HEREBY, AS THE CASE MAY BE, AT ANY TIME DURING THE RESTRICTED PERIOD,
REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS.
Section 1.36 "Securities Exchange Act" shall mean the United States
Securities Exchange Act of 1934, as from time to time amended.Section 1.37
"Shares" shall mean shares of Common Stock, par value Won 5,000 per share, of
the Company, validly issued and outstanding, fully paid, nonassessable and
issued free of any preemptive rights and may, if the Depositary so agrees after
consultation with the Company, include evidence of the right to receive Shares;
provided, however, that in no event shall Shares include evidence of the right
to receive Shares with respect to which the full purchase price has not been
paid or Shares as to which preemptive rights have theretofore not been validly
waived or exercised; provided, further, that, if there shall occur any change in
nominal or par value, split-up or consolidation, exchange, conversion or any
other reclassification or event described in Section 4.11 in respect of the
Shares, the term "Shares" shall thereafter, to the maximum extent permitted by
law, represent the successor securities resulting from such change in nominal or
par value, split-up or consolidation, exchange, conversion or any other such
reclassification or event.
Section 1.38 "Stock Market Division of the Korea Exchange" shall mean the
Stock Market Division of the Korea Exchange and any successor thereto.
Section 1.39 "Subsidiary" shall mean an entity in which the Company owns
or otherwise controls, directly or indirectly through one or more
intermediaries, 50% or more of the outstanding equity interests in such entity.
Section 1.40 "United States" and "U.S." shall have the meaning assigned to
it under Regulation S promulgated under the Securities Act.
Section 1.41 "Won" shall mean the lawful currency of Korea.
-6-
ARTICLE II
APPOINTMENT OF DEPOSITARY, BOOK-ENTRY
SYSTEM, FORM OF REGULATION S GDRS,
DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF REGULATION S GDRS
Section 2.01 Appointment of Depositary. 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. Each Holder and each Beneficial Owner, upon acceptance of any
Regulation S GDSs (or any interest therein) issued in accordance with the terms
of this Deposit Agreement, shall be deemed for all purposes to (a) be a party to
and bound by the terms of this Deposit Agreement and (b) appoint the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in this Deposit Agreement, to adopt any
and all procedures necessary to comply with applicable laws and to take such
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
The Depositary has been advised by the Company that, as of the date
hereof, the Company has established and existing with The Bank of New York an
American depositary receipts facility which contemplates the issuance of
American depositary shares traded on The New York Stock Exchange (the "ADR
Facility"). The Regulation S GDR facility created pursuant to this Deposit
Agreement is separate and distinct from the ADR Facility. The Regulation S GDSs
issued hereunder are not fungible with the American depositary shares issued and
outstanding under the ADR Facility and have securities identifiers that are
separate and distinct from the securities identifiers for the American
depositary shares issued and outstanding under the ADR Facility.
The Depositary will issue and deliver Regulation S GDSs only under this
Deposit Agreement. There is no guarantee that the Holders and Beneficial Owners
hereunder will receive the same rights or entitlements as the holders and
beneficial owners of depositary shares issued and outstanding under the ADR
Facility. Neither the Depositary nor The Bank of New York have agreed and
neither has any obligations under this Deposit Agreement or the deposit
agreement for the ADR Facility to treat holders and beneficial owners of
American depositary shares on the same terms as Holders and Beneficial Owners of
the Regulation S GDSs or vice versa. The Regulation S GDSs are subject to
limitations on transfer and cancellation and withdrawal during the Restricted
Period.
Section 2.02 Book-Entry System; Form and Transferability of Regulation S
GDRs.
(a) Euroclear and Clearstream Eligibility. The Company has applied to
Euroclear and Clearstream for acceptance of the Regulation S GDSs into their
respective book-entry settlement systems. If Euroclear and Clearstream agree to
accept the application to admit the Regulation S GDRs into their respective
book-entry settlement systems, the Regulation S GDSs will be evidenced by a
single Master Regulation S GDR (the "Master Regulation S GDR"), which will be
issued to and registered in the name of a common depository or other nominee for
Euroclear and Clearstream, and may be held by such entity as common depository
for Euroclear and Clearstream.
-7-
The common depository or such other nominee will be the only Holder of
record of all Regulation S GDSs. Settlement of the Regulation S GDSs will take
place through Euroclear and Clearstream in accordance with customary settlement
procedures of the relevant systems. Ownership of beneficial interests in the
Master Regulation S GDR shall be shown on, and transfer of such ownership shall
be effected only through, records maintained by (i) Euroclear or Clearstream or
their respective nominees (with respect to Participants' interests) or (ii)
Participants that have accounts with Euroclear or Clearstream, as the case may
be. So long as the Regulation S GDSs are eligible for book-entry settlement with
Euroclear and Clearstream, as the case may be, unless otherwise required by law,
Regulation S GDSs shall be represented by the Master Regulation S GDR registered
in the name of the common depository or other nominee of Euroclear and/or
Clearstream.
If, at any time when Regulation S GDSs are represented by the Master
Regulation S GDR, Euroclear or Clearstream as the case may be, ceases to make
their respective book-entry settlement systems available for such Regulation S
GDSs, the Company shall consult with the Depositary regarding making other
arrangements for book-entry settlement. If it is impracticable without undue
effort or expense to continue to have the Regulation S GDSs available in
book-entry form, the Company shall instruct the Depositary to make Regulation S
GDR available to the Beneficial Owners of Regulation S GDSs in physical,
certificated form, with such additions, deletions and modifications to this
Deposit Agreement and the form of Regulation S GDR attached hereto as Exhibit A
and subject to the requirements of any other documents, statements or
certifications in connection therewith as the Company and the Depositary may,
from time to time, agree. In the event of issuance of certificated Regulation S
GDS, such Regulation S GDR may evidence any whole number of Regulation S GDSs.
(b) Form of Regulation S GDR(s). The Regulation S GDRs shall be
typewritten, in the case of the Master Regulation S GDR, and otherwise shall be
engraved, lithographed, printed, or produced in such other form as may be agreed
upon by the Company and the Depositary. Regulation S GDRs shall be issued only
in denominations of any whole number of Regulation S GDSs. The Regulation S GDRs
shall be substantially in the form set forth in Exhibit A to this Deposit
Agreement, with appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in this Deposit Agreement or as required by
applicable law. Regulation S GDRs 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 Regulation S GDRs.
Provided that the Master Regulation S GDR shall not be required to be so
countersigned. No Regulation S GDR and no Regulation S GDS evidenced thereby
shall be entitled to any benefits under this Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Regulation S GDR shall have been so dated, signed, countersigned and registered.
Regulation S GDRs bearing the manual or facsimile signature of any
duly-authorized signatory of the Depositary or the Registrar, who was at the
time of signature a duly-authorized signatory of the Depositary or the
Registrar, as the case may be, shall bind the Depositary, notwithstanding that
such signatory has ceased to be so authorized prior to the delivery of such
Regulation S GDR by the Depositary. The Regulation S GDRs 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 Regulation S GDRs issued hereunder.
-8-
The Depositary shall maintain a register in which each Regulation S GDR so
executed and delivered and the transfer of each such Regulation S GDR shall be
registered.
(c) Legends. The Master Regulation S GDR shall bear such legend(s) as may
be required by Euroclear or Clearstream in order for the Regulation S GDSs to be
accepted in their respective book-entry settlement systems and such other
legends as the Company and the Depositary may agree from time to time. The
Master Regulation S GDR shall provide that it shall represent the aggregate
amount of Regulation S GDSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate amount of Regulation
S GDSs represented thereby may from time to time be increased or decreased by
making adjustments on such records of the Depositary and of Euroclear or
Clearstream or their respective nominees as hereinafter provided.
During the Restricted Period, the Regulation S GDRs will be endorsed with
the Securities Act Legend. Such legend may be amended from time to time in
accordance with Section 6.1 hereof. The Regulation S GDRs may be endorsed with
or have incorporated in the text thereof such other legends or recitals or
changes not inconsistent with this Deposit Agreement (i) as may be necessary to
enable the Depositary to perform its obligations hereunder, (ii) as may be
required to comply with any applicable law or regulations, or as may be required
by Euroclear or Clearstream in order for the Regulation S GDSs to settle in or
through their respective book-entry settlement systems or to conform with any
laws or regulations, with the rules of any securities exchange or market on
which the Regulation S GDSs may be traded, listed or quoted, or to conform with
any usage with respect thereto, (iii) as may be necessary to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date or manner of issuance of the underlying Deposited
Securities or otherwise, including by reason of the issuance of Receipts or the
underlying Deposited Securities in transactions exempt from the registration
requirements of the Securities Act.
(d) Title. Subject to any limitations set forth in the Regulation S GDR or
in this Deposit Agreement, title to such Regulation S GDR (and to the Regulation
S GDSs evidenced thereby) shall be transferable upon the same terms as in the
case of a certificated security under the laws of the State of New York;
provided that the Regulation S GDR has been properly endorsed or is accompanied
by proper instruments of transfer. Notwithstanding any notice to the contrary,
the Company and the Depositary may deem and treat the Holder of a Regulation S
GDR (that is, the person in whose name a Regulation S GDR 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 or be subject to any
liability under this Deposit Agreement or any Regulation S GDR to any holder of
a Regulation S GDR or any Beneficial Owner unless such holder is the Holder of
such Regulation S GDR 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 of such Regulation S GDSs registered on the books of the
Depositary.
-9-
Section 2.03 Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement and applicable laws and regulations of Korea, the
Depositary shall cause the Custodian to accept Shares or evidence of rights to
receive Shares for deposit by (a) the Company or an Affiliate, but only in the
case of the Initial Deposit or any distribution of Shares pursuant to Sections
4.02, 4.03, 4.04 or 4.11 of this Deposit Agreement (subject, in each case, to
the terms of Section 5.08) or (b) any persons (other than the Company and its
Affiliates), subject however, to prior delivery to the Depositary by or on
behalf of the person acquiring beneficial ownership of the Regulation S GDSs to
be issued in respect of such Shares of a duly completed and signed certification
and agreement substantially in the form of Exhibit D-1 attached hereto, in each
case by (i) in the case of Shares represented by certificates issued in
registered form, delivery of the certificates evidencing the Shares accompanied
by any appropriate instruments of transfer or endorsement in form satisfactory
to the Custodian, (ii) in the case of Shares delivered by book-entry transfer,
electronic transfer of Shares to the account maintained by the Custodian for
such purpose or (iii) delivery to the Custodian of evidence satisfactory to the
Custodian that irrevocable instructions have been given to cause such Shares to
be transferred to such account, in any case accompanied by delivery to the
Custodian or the Depositary, as the case may be, of (x) a written order, from or
on behalf of such person directing the Depositary to execute and deliver to, or
upon the written order of, the person or persons stated in such order a
Regulation S GDR(s) (if certificated Regulation S GDRs are then available
pursuant to Section 2.02), or make such adjustment to its records, as
contemplated by Section 2.02, for the number of Regulation S GDSs representing
such deposited Shares, (y) any payments, including the charges of the Depositary
for the making of deposits and the issuance of Regulation S GDSs (as set forth
in Exhibit B hereto), and documents required under this Deposit Agreement and
(z) such other documentation as the Depositary and the Company may require.
Notwithstanding the foregoing, to the extent the laws or regulations of
Korea require the consent of the Company for a deposit of outstanding Shares
with the Custodian as contemplated by this Section 2.03 (each such deposit a,
"Proposed Deposit"), no Proposed Deposit shall be accepted for deposit under
this Deposit Agreement other than from the Company unless the Depositary shall
have received such consent of the Company with respect to such Proposed Deposit;
provided, however, that such consent shall be deemed to have been given to the
Depositary with respect to all Proposed Deposits as long as the number of Shares
subject to the Proposed Deposit does not exceed the difference between: (i) the
aggregate number of Shares deposited by the Company or by any persons with the
consent of the Company for the issuance of Regulation S GDSs (including the
Initial Deposit, any subsequent deposit of any Shares of the Company (including
evidence of rights to receive Shares) which have been newly issued by the
Company for deposit under this Deposit Agreement and any distribution of Shares
or other Deposited Securities pursuant to Sections 4.02, 4.03, 4.04, 4.05, and
4.11 hereof); and, (ii) the number of Shares on deposit with the Custodian for
the benefit of the Depositary at the time of such Proposed Deposit.
-10-
As a condition of accepting Shares for deposit, the Depositary may require
that the person making such deposit furnish, whether or not any register of
shareholders of the Company (or that maintained by the Foreign Registrar) is
closed, (a) an agreement, assignment, or other instrument satisfactory to the
Depositary or the Custodian, that provides for the prompt transfer by the person
in whose name the Shares are registered to the Custodian or its nominee of any
distribution or right to subscribe for additional Shares or to receive other
property in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary or
the Custodian, and (b) if the Shares are registered in the name of the person
presenting them, or on whose behalf they are presented, for deposit, a proxy or
proxies entitling the Custodian to vote such deposited Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Custodian or its nominee.
The Depositary and the Custodian shall refuse to accept Shares for deposit
whenever notified, as hereafter provided, that the Company has restricted
transfer of such Shares to comply with any ownership restrictions referred to in
Section 3.05 or under applicable laws. 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 or transfer of Regulation S GDRs to any
Holder.
The Depositary agrees to instruct the Custodian to place all Shares and
any other securities that are Deposited Securities accepted for deposit under
this Deposit Agreement into an account or accounts that are segregated and
separate from the account in which any Shares and such other securities of the
Company may be held by such Custodian under any other depositary receipt
facility pursuant to which depositary receipts evidencing depositary shares
representing Shares are issued.
No Share 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 governmental body in
Korea, if any, which is then performing the function of the regulator of
currency exchange. The Depositary may issue Regulation S GDSs 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 under this Deposit Agreement any Shares or other Deposited
Securities required to be registered pursuant to the provisions of the
Securities Act, unless a registration statement under the Securities Act is in
effect as to such Shares or other Deposited Securities, or any Shares or
Deposited Securities the deposit of which would violate any provisions of the
Articles of Incorporation of the Company. 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 U.S.
-11-
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.
Upon each delivery to a Custodian of Shares (or other Deposited Securities
pursuant to Section 4.02, 4.03, 4.04, 4.05, and 4.11) to be deposited hereunder
together with the other documents above specified, such Custodian shall, as soon
as transfer and recordation can be accomplished, transfer and record the Shares
being deposited in the name of the Depositary or, subject to applicable law, its
nominee 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.
Notwithstanding anything else contained in this Deposit Agreement, the
Depositary shall not be required to accept for deposit or maintain on deposit
with the Custodian (a) any fractional Shares or fractional Deposited Securities
or (b) any number of Shares or Deposited Securities which, upon application of
the ratio of Regulation S GDSs to Deposited Securities, would give rise to
fractional Regulation S GDSs.
Section 2.04 Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of certificates representing registered Shares
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), together with the other documents above
specified, to present such certificate(s), together with the appropriate
instrument(s) of transfer or endorsement, duly stamped, to the Foreign Registrar
for transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or a nominee in each case on
behalf of the Holders and Beneficial Owners, at such place or places as the
Depositary or the Custodian shall determine.
Section 2.05 Execution and Delivery of Regulation S GDRs. Upon receipt by
a Custodian of a deposit pursuant to Section 2.03 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), reasonably 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 (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 as above specified, such Custodian shall be
required to notify the Depositary of such deposit and recordation and the person
or persons to whom or upon whose written order the Regulation S GDR(s) are
deliverable in respect thereof and the number of Regulation S GDS(s) to be
evidenced thereby. Such notification may be made by letter, cable, telex, SWIFT
message or, at the request, risk and expense of the person making the deposit,
by facsimile or other means of electronic transmission.
-12-
Upon receiving such notice from such Custodian, the Depositary or its agent
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Principal New York Office to or upon the order of the person or
persons named in the notice delivered to the Depositary Regulation S GDR(s)
registered in the name or names requested in such notice and evidencing the
aggregate number of Regulation S GDS(s) to which such person is entitled, but
only upon payment to the Depositary of the fee of the Depositary and all taxes
and governmental charges and fees payable in connection with such deposit and
the transfer of the deposited Shares. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement or
any other agreement between the Depositary and the Company.
The Depositary shall neither execute nor deliver a Regulation S GDR nor
adjust its records in respect of any deposit of Shares (other than (i) a
distribution of Shares pursuant to Sections 4.02, 4.03 or 4.11, (ii) a deposit
of Shares issued upon exercise of rights pursuant to Section 4.04 or (iii) a
deposit of Shares upon the terms contemplated in Section 5.08) unless a written
certification and agreement in substantially the form appearing as Exhibit D-1
(except in the case of the Initial Deposit) is provided to the Depositary by or
on behalf of the person who will be the Beneficial Owner of the Regulation S
GDSs issued.
Section 2.06 Transfer, Combination and Split-up of Regulation S GDRs.
(a) Transfer. The Registrar shall, without unreasonable delay, register
the transfer of Regulation S GDRs (and of the Regulation S GDSs represented
thereby) on the books maintained for such purpose, upon any surrender of such
Regulation S GDRs by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by any applicable law; provided, however,
that the Registrar shall refuse to register any transfer of Regulation S GDRs if
such registration would cause the total number of Shares represented by
Regulation S GDSs evidenced by Regulation S GDRs held by any Holder to exceed
the number of Shares as determined by the Company in order to comply with the
ownership restrictions referred to in Section 3.05 and notified in writing, from
time to time, to the Registrar.
Thereupon the Depositary shall cancel such Regulation S GDRs and execute new
Regulation S GDRs evidencing the same aggregate number of Regulation S GDSs as
those evidenced by the Regulation S GDRs canceled by the Depositary, shall cause
the Registrar to countersign such new Regulation S GDRs, and shall Deliver such
new Regulation S GDRs to or upon the order of the person entitled thereto if
each of the following conditions has been satisfied: (i) the Regulation S GDRs
have been duly Delivered by the Holder (or by a duly-authorized attorney of the
Holder) to the Depositary at its Principal New York Office for the purpose of
effecting a transfer thereof, (ii) the surrendered Regulation S GDRs have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Regulation S GDRs have been duly stamped (if
required by the laws of the State of New York or of the U.S.), (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
-13-
applicable taxes and governmental charges (as are set forth in Section 5.05 and
Exhibit B hereto) have been paid, and (v) the Depositary has received such
certifications and agreements as the Depositary and the Company may require in
order to comply with applicable laws and the restrictions on transfer, prior to
the termination of the Restricted Period, subject, however, in each case, to the
terms and conditions of the applicable Regulation S GDRs, of this Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
(b) Combination & Split-Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement, shall upon surrender of Regulation S GDRs
for the purpose of effecting a split-up or combination of such Regulation S GDRs
(and of the Regulation S GDSs represented thereby), execute and deliver new
Regulation S GDRs for the number of Regulation S GDSs in the name of the same
Holder for any authorized number of Regulation S GDSs requested, evidencing the
same class and aggregate number of Regulation S GDSs as the Regulation S GDRs
surrendered.
(c) Legends. The Regulation S GDRs executed and delivered upon any such
transfer, split-up or combination shall bear the Securities Act Legend if at the
time of delivery the restrictions contained therein are applicable, as
determined by the Company and the Depositary from time to time.
Section 2.07 Surrender of Regulation S GDRs and Withdrawal of Deposited
Securities. Subject to receipt of confirmation of listing of Shares on the Stock
Market Division of the Korea Exchange, upon (i) surrender of Regulation S GDRs
at the Principal London Office or Principal New York Office of the Depositary if
the book-entry settlement system is not then available for Regulation S GDSs or
(ii) receipt by the Depositary at the Principal New York Office of written
instructions from a Participant of Euroclear or Clearstream or its nominee, as
the case may be, on behalf of any Beneficial Owner together with a corresponding
credit to the Depositary's account at Euroclear or Clearstream for the
Regulation S GDSs so surrendered, if the book-entry settlement system is then
available for Regulation S GDSs, in either case for the purpose of withdrawal of
the Deposited Securities represented thereby, and upon receipt of (x) payment of
all fees and charges, including the fees and charges of the Depositary for the
making of withdrawals of Deposited Securities and cancellation of Regulation S
GDSs (as set forth in Exhibit B hereto), governmental charges and taxes payable
in connection with such surrender and withdrawal, (y) instructions of the Holder
or Participant and (z) the written certification and agreement hereinafter
referred to, subject to the terms and conditions of this Deposit Agreement, the
clearing procedures of CSD, the Articles of Incorporation of the Company, to the
provisions of or governing the Deposited Securities and applicable laws, the
Holder of such Regulation S GDR acting for itself or on behalf of the Beneficial
Owner or Participant, as the case may be, shall be entitled to physical
delivery, to him or upon his order, or to electronic delivery (during the
Restricted Period, only through CSD or institutions having accounts with CSD to
an account outside the U.S.) to an account designated by such Participant,
Beneficial Owner or Holder, as the case may be, as permitted by applicable law,
of the amount of Deposited Securities at the time represented by the Regulation
S GDS surrendered for such purpose. Such delivery of Deposited Securities shall
be made, as hereinafter provided, without unreasonable delay.
-14-
During the Restricted Period, no Deposited Securities shall be delivered
as provided herein unless such written order shall be accompanied by an
accurately and fully completed, signed certification and agreement in
substantially the form of Exhibit D-2 hereto (in the case of the Initial
Deposit) or Exhibit D-3 hereto (in the case of a subsequent offering of
Regulation S GDSs). After the Restricted Period, delivery of Deposited
Securities upon surrender of Regulation S GDSs as provided herein may also be
subject to delivery to the Depositary of such written certification and
agreement as the Company and Depositary may require. A Regulation S GDR
surrendered may be required by the Depositary to be endorsed in blank or
accompanied by properly executed instruments of transfer in blank.
Upon satisfaction of each of the conditions above specified, the
Depositary (i) shall cancel the Regulation S GDSs Delivered to it (and, if
applicable, the Regulation S GDRs evidencing the Regulation S GDSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the
Regulation S GDSs so Delivered, and (iii) shall direct the Custodian to Deliver
(without unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the Regulation S GDSs 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 this Deposit Agreement, of the Regulation S GDRs evidencing the
Regulation S GDSs so canceled, of the Articles of Incorporation of the Company,
of 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.
Notwithstanding anything else contained in any Regulation S GDR or this
Deposit Agreement, the Depositary may make delivery at the Principal New York
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 Regulation S GDSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so surrendering
Regulation S GDSs, and for the account of such Holder, the Depositary shall
direct the Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held by the Custodian in respect of the
Deposited Securities represented by such Regulation S GDSs to the Depositary for
delivery at the Principal New York Office of the Depositary. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission.
The Depositary shall not accept for surrender Regulation S GDSs
representing less than one Share. In the case of delivery to it of Regulation S
GDSs representing a number other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number 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 Regulation S GDSs
the number of Regulation S GDSs representing any remaining fractional Share, or
(ii) sell or cause to be sold the fractional Share represented by the Regulation
S GDSs 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 Regulation S GDSs.
-15-
Section 2.08 Limitations on Execution and Delivery, Transfer, Etc., of
Regulation S GDRs; Suspension of Delivery, Transfer, Etc. As a condition
precedent to the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any Regulation S GDR, the delivery of any
distribution thereon or withdrawal of any Deposited Securities, the Depositary
or the Custodian may require from the Holder, the presenter of a Regulation S
GDR, the Beneficial Owner, the depositor of Shares or the presenter of written
instructions to adjust the Depositary's records (i) payment 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 or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any fees
and charges of the Depositary set forth in Exhibit B to this Deposit Agreement;
(ii) compliance with (a) any laws or governmental regulations relating to
Regulation S GDRs or Regulation S GDSs or to the withdrawal of Deposited
Securities and (b) such reasonable procedures as the Depositary and the Company
may establish consistent with the provisions of this Deposit Agreement; and
(iii) production of proof satisfactory to it as to the identity and genuineness
of any signature appearing on any form, certification or other document
delivered to the Depositary in connection with this Deposit Agreement, including
but not limited to, in the case of Regulation S GDRs, a signature guarantee in
accordance with industry practice.
The issuance and delivery of Regulation S GDSs against, or adjustments in
the records of the Depositary to reflect, deposits of Shares generally or
deposits of particular Shares may be suspended or withheld, or the registration
of transfer of Regulation S GDRs in particular instances may be refused, or the
registration of transfers generally may be suspended, or the surrender of
outstanding Regulation S GDSs for the purpose of withdrawal of Deposited
Securities may be suspended or refused, during any period when the transfer
books of the Depositary, the shareholders' register of the Company (or the
appointed agent of the Company for the transfer and registration of Shares) or
the books of the CSD are closed, or if any such action is deemed necessary or
advisable by the Company, the Depositary or the CSD, in good faith, at any time
or from time to time.
Notwithstanding anything herein to the contrary, after the Restricted
Period, a Holder is entitled to withdraw Deposited Securities subject only to
(i) temporary delays caused by closing the transfer books of the Depositary or
the Company or the deposit of Shares in connection with voting at a
shareholder's meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges to the Depositary, and (iii) compliance with any laws
or governmental regulations relating to Regulation S GDRs or to the withdrawal
of Deposited Securities.
Section 2.09 Lost Regulation S GDRs, Etc. In case any Regulation S GDR
shall be mutilated, destroyed, lost or stolen, the Depositary shall execute,
register and deliver a new Regulation S GDR of like tenor at the expense of the
Holder (a) in the case of a mutilated Regulation S GDR, in exchange of and
substitution for such mutilated Regulation S GDR upon cancellation thereof, or
(b) in the case of a destroyed, lost or stolen Regulation S GDR, in lieu of and
in substitution for such destroyed, lost or stolen Regulation S GDR, 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 Regulation S
GDR 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 Regulation S GDR, the authenticity thereof
and the Holder's ownership thereof.
-16-
Section 2.10 Cancellation and Destruction of Surrendered Regulation S
GDRs; Maintenance of Records. All Regulation S GDRs physically surrendered to
the Depositary shall be canceled by the Depositary. Canceled Regulation S GDRs
shall not be entitled to any benefits under this Deposit Agreement or be valid
or enforceable for any purpose. The Depositary is authorized to destroy
Regulation S GDRs so canceled. Any Regulation S GDSs held in book-entry form
shall be deemed canceled when the Depositary causes the number of Regulation S
GDSs evidenced by the Master Regulation S GDR to be reduced by the number of
Regulation S GDSs surrendered (without the need to physically destroy the Master
Regulation S GDR).
The Depositary agrees to maintain records of all Regulation S GDRs
surrendered and Deposited Securities withdrawn under Section 2.07, of substitute
Regulation S GDRs delivered under Section 2.09 and of Regulation S GDRs canceled
or destroyed under Section 2.08, in keeping with procedures ordinarily followed
by stock transfer agents located in The City of New York.
Section 2.11 Partial Entitlement Regulation S GDSs. In the event any
Shares are deposited which entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then on
deposit (the Shares then on deposit collectively, "Full Entitlement Shares" and
the Shares with different entitlement, "Partial Entitlement Shares"), the
Depositary shall (i) cause the Custodian to hold Partial Entitlement Shares
separate and distinct from Full Entitlement Shares, and (ii) subject to the
terms of this Deposit Agreement, issue Regulation S GDSs and deliver Regulation
S GDRs representing Partial Entitlement Shares which are separate and distinct
from the Regulation S GDSs and Regulation S GDRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement Regulation S GDSs" and "Full Entitlement Regulation S
GDSs," respectively). When Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, (b) take
such actions as are necessary to remove the distinctions between (i) the Partial
Entitlement Regulation S GDRs and GDSs, on the one hand, and (ii) the Full
Entitlement Regulation S GDRs and GDSs on the other and (c) give notice thereof
to the Holders of Partial Entitlement Regulation S GDSs and give Holders of
Partial Entitlement Regulation S GDSs the opportunity to exchange such Partial
Entitlement Regulation S GDSs for Full Entitlement Regulation S GDSs. Holders
and Beneficial Owners of Partial Entitlement GDSs shall be entitled only to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement GDSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement Regulation S GDRs and GDSs to the same extent
as Full Entitlement Regulation S GDRs and GDSs, except as contemplated by this
Section 2.11. The Depositary is authorized to take any and all other actions as
may be necessary (including, without limitation, making the necessary notations
on Regulation S GDRs) to give effect to the terms of this Section 2.11. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon delivery to the Custodian.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF REGULATION S GDSS
Section 3.01 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder or any Beneficial Owner may be
required and every Holder and Beneficial Owner agrees, from time to time (a) to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of Regulation S GDSs and Deposited Securities, compliance with all applicable
laws and the terms of this Deposit Agreement, and the provisions of, or
governing, the Deposited Securities, and (b) to execute such certifications and
to make such representations and warranties and to provide such other
information and documentation (or, in the case of Shares in registered form
presented for deposit, such information relating to the registration on the
books of the Company or on the shareholders' register of the Company ) as the
Depositary or the Custodian may deem reasonably necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under this Deposit Agreement and the applicable Regulation
S GDR(s). The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any Regulation S GDR, or
the distribution or sale of any dividend or distribution of rights or of the net
proceeds of the sale thereof or the delivery of any Deposited Securities, until
such proof or other information is filed or such certifications are executed, or
such representations and warranties are made, or such other documentation or
information is provided, in each case to the Depositary's, the Registrar's and
the Company's satisfaction. The Depositary shall, at the Company's request,
provide the Company, in a timely manner, with copies or originals if necessary
and appropriate of (i) any such proofs of citizenship or residence, taxpayer
status, or exchange control approval or written representations and warranties
which it receives from Holders and Beneficial Owners, and (ii) any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Holder or Beneficial Owner or any
person presenting Shares for deposit or Regulation S GDSs for cancellation,
transfer or withdrawal. Except to the extent that information is readily
accessible from the records of the Depositary, the Depositary shall not be
required to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
Section 3.02 Liability of Holders and Beneficial Owners for Taxes and
Other Charges. If any Korean or other tax or governmental charge shall become
payable with respect to any Regulation S GDR or any Deposited Securities or
Regulation S GDS, such tax or other governmental charge shall be payable by the
Holder of such Regulation S GDRs to the Depositary and any Beneficial Owner of
such Receipt shall be liable to the Holder therefor. The Depositary may refuse,
and the Company shall be under no obligation, to effect any registration of
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transfer of all or part of such Regulation S GDRs or to execute and deliver any
new Regulation S GDRs or to permit any deposit or, any withdrawal of Deposited
Securities represented by the Regulation S GDSs evidenced thereby until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Holder thereof any part or all of the Deposited
Securities represented by the Regulations S GDSs evidenced by such Regulation S
GDRs, and may apply such dividends or other distributions or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder and
the Beneficial Owner of such Regulation S GDRs remaining liable for any
deficiency.
Section 3.03 Representations and Warranties on Deposit, Transfer,
Surrender and Withdrawal of Shares or Regulation S GDRs. Each person depositing
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, outstanding, fully paid, nonassessable, and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and (v) the Shares presented for deposit have not
been stripped of any rights or entitlements, and are not, and the Regulation S
GDSs will not be, "Restricted Securities" (under the Securities Act). Such
representations and warranties shall survive the deposit and withdrawal of
Shares and the issuance and cancellation of Regulation S GDSs in respect thereof
and the transfer of such Regulation S GDSs. 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.
Each person depositing Shares, taking delivery of or transferring
Regulation S GDSs or any beneficial interest therein, or surrendering Regulation
S GDSs or any beneficial interest therein and withdrawing Shares under this
Deposit Agreement shall be deemed thereby to acknowledge that the Regulation S
GDRs, the Regulation S GDSs evidenced thereby and the Shares represented thereby
have not been and will not be registered under the Securities Act, and may not
be offered, sold, pledged or otherwise transferred except in accordance with the
restrictions on transfer set forth in the Securities Act Legend, and such person
shall be deemed thereby to represent and warrant that such deposit, transfer or
surrender or withdrawal complies with the foregoing restrictions. Such
representations and warranties shall survive any such deposit, transfer or
surrender or withdrawal of the Shares or the Regulation S GDRs or any beneficial
interest therein.
Section 3.04 Compliance with Information Requests. The Company or the
Depositary may from time to time request Holders or former Holders to provide
information as to the capacity in which they hold or held Regulation S GDRs and
regarding the identity of any other persons then or previously interested in
such Regulation S GDRs and the nature of such interest and various other
matters. Each such Holder agrees to provide any such information reasonably
requested by the Company or the Depositary pursuant to this Section whether or
not still a Holder at the time of such request. The Depositary agrees to use its
reasonable efforts to comply with written instructions received from the Company
requesting that the Depositary forward any such requests to such Holders and to
the last known address, if any, of such former Holders 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 Regulation S GDSs
evidenced by Regulation S GDRs; 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 former Holders.
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Section 3.05 Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding certain limits
under applicable law or under the Company's Articles of Incorporation. The
Company may also restrict, in such manner as it deems appropriate, transfers of
Regulation S GDSs where such transfer would result in the total number of Shares
represented by the Regulation S GDSs 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 owner 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 who holds Regulation S GDSs in excess of the
limitation set forth in the preceding sentence, including but not limited to,
the imposition of restrictions on the withdrawal of Shares represented by
Regulation S GDSs, the removal or limitation of voting rights or the mandatory
sale or disposition on behalf and for the account of a Holder or Beneficial
Owner of the Shares represented by the Regulation S GDSs held by such Holder or
Beneficial Owner in excess of such limitations (and the cancellation of such
Regulation S GDSs), if and to the extent such disposition is permitted by
applicable law. Each Holder and Beneficial Owner agrees to file reports to the
extent and in the form required by Korean law and regulations as may be in
effect from time to time. Nothing herein shall be interpreted as obligating the
Depositary or the Company to ensure compliance with the ownership restrictions
described in this Section 3.05. In addition, Korean laws and regulations may
require beneficial owners of the voting share capital of Korean companies,
including the Beneficial Owners, to satisfy certain reporting requirements or
obtain regulatory approval in certain circumstances. Beneficial Owners are
solely responsible for complying with such requirements. Neither the Depositary
nor the Custodian, nor the Company, nor any of their respective agents or
affiliates shall be required to take any actions whatsoever on behalf of such
Beneficial Owners to comply with such reporting requirements or regulatory
approvals under Korean law.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.01 Cash Distributions. Whenever the Depositary or the Custodian
shall receive any cash dividend or other cash distribution by the Company on any
Deposited Securities, the Depositary shall, if at the time of receipt thereof
any amounts received in Foreign Currency can in the judgment of the Depositary
(pursuant to Section 4.08 hereof) be converted on a practical basis into Dollars
transferable to the U.S. promptly convert, or cause to be converted, such
dividend or distribution or proceeds into Dollars (on the terms described in
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Section 4.08), establish a record date in accordance with Section 4.09 hereof
(if applicable), and distribute promptly the amount thus received (net of (a)
the applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the Holders entitled thereto in proportion to the number
of Regulation S GDSs representing such Deposited Securities held by them
respectively, subject to applicable Korean laws and regulations and the
provisions of Section 4.08 of this Deposit Agreement provided, however, that in
the event that the Company, the Custodian or the Depositary shall be required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holders in respect of
Regulation S GDSs representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders then outstanding. The
Company or its agent or the Depositary or its agent, as appropriate, will remit
to the appropriate governmental authority or agency in Korea or any other
relevant jurisdiction all amounts withheld and owing to such authority or
agency. The Depositary will forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the Company or
its agent to file necessary reports with governmental authorities or agencies.
Section 4.02 Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Custodian shall be required, subject to applicable law, to accept such
Shares for deposit pursuant to this Deposit Agreement and, upon receipt of
confirmation of such deposit, the Depositary shall (subject to Section 5.05)
either (i) distribute to the Holders of outstanding Regulation S GDRs entitled
thereto, in proportion to the number of Regulation S GDSs representing Deposited
Securities held by them respectively, additional Receipts for an aggregate
number of Regulation S GDSs representing the number of Shares received as such
dividend or free distribution, or (ii) reflect on the records of the Depositary
such increase in the aggregate number of Regulation S GDSs representing the
aggregate number of Shares so received, in either case, after deduction or upon
payment of the fees and expenses of the Depositary. If for any reason (including
any requirement that the Company or the Depositary withhold an amount on account
of taxes or other governmental charges or that such Shares must be registered
under the Securities Act in order to be distributed to Holders) the Depositary
deems such distribution not to be commercially feasible, the Depositary may,
after consultation with the Company, adopt such method as it may deem
commercially feasible for the purpose of effecting such distribution, including
the sale (at public or private sale) of the Shares thus received, or any part
thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash. In lieu of issuing Regulation S GDRs for fractional Regulation
S GDSs in any such case, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
in dollars. To the extent that new Regulation S GDSs representing such Shares
are not created and such Shares are not sold or otherwise distributed in
accordance with this Section, each Regulation S GDSs shall thenceforth also
represent such additional Shares distributed upon the Deposited Securities
represented thereby.
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Section 4.03 Elective Distributions. Subject to applicable Korean law,
whenever the Company intends to make a distribution payable at the election of
the holders of Shares in cash or in additional Shares other than as provided in
Sections 4.01 or 4.02, the Company shall give timely notice thereof to the
Depositary stating whether or not it wishes such elective distribution to be
made available to Holders of Regulation S GDSs. Upon timely receipt of notice
indicating that the Company wishes such elective distribution to be made
available to Holders of Regulation S GDSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and commercially feasible to make such
elective distribution available to the Holders of Regulation S GDSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is commercially feasible and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.08. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in Korea in respect of the Shares for which no election
is made, either (X) cash upon the terms described in Section 4.01 or (Y)
additional Regulation S GDSs representing such additional Shares upon the terms
described in Section 4.02 (provided that in the case of (Y), the Shares have
been deposited pursuant to Section 4.02). If the above conditions are satisfied,
the Depositary shall establish a record date (on the terms described in Section
4.09) and establish procedures to enable Holders to elect the receipt of the
proposed distribution in cash or in additional Regulation S GDSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. Nothing herein shall obligate the Depositary to make available to
Holders a method to receive the elective distribution in Shares (rather than
Regulation S GDSs) if the conditions set forth above are not satisfied. There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Deposited Securities.
Section 4.04 Distributions of Rights to Purchase Additional Regulation S
GDSs.
(a) Distribution to Regulation S GDS Holders. Whenever the Company intends
to distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give timely notice thereof to the
Depositary stating whether or not it wishes such rights to be made available to
Holders of Regulation S GDSs. Upon timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of Regulation S
GDSs, the Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it is lawful
and commercially feasible to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.09, and (iii) the Depositary shall have determined that such
distribution of rights is commercially feasible. In the event all conditions set
forth above are satisfied, the Depositary shall establish a record date (upon
the terms described in Section 4.09) and establish procedures to (x) distribute
rights to purchase additional Regulation S GDSs (by means of warrants or
otherwise) in proportion to the number of Regulation S GDSs held, (y) to enable
the Holders (or holders of warrants) to exercise such rights or warrants (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and, if applicable, to
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enable Holders or holders of warrants, as the case may be, to sell or transfer
such rights or warrants, as the case may be, and (z) to deliver Regulation S
GDSs upon the valid exercise of such rights. The Company shall assist the
Depositary to the extent necessary in establishing such procedures. Nothing
herein shall obligate the Depositary to make available to the Holders a method
to exercise rights to subscribe for Shares (rather than Regulation S GDSs) if
the conditions set forth above are not satisfied. In the event any of the
conditions set forth above are not satisfied or if the Company requests that the
rights not be made available to Holders of Regulation S GDSs, the Depositary
shall proceed with the sale of the rights and subsequent distribution of
proceeds as contemplated below.
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.08 or determines it is
not lawful or commercially feasible to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall, after consultation with the Company, determine
whether it is lawful and commercially feasible to sell such rights, in a
riskless principal capacity, at such places and upon such terms (including
public or private sale) as it may deem proper and commercially feasible. The
Depositary shall consult with the Company to determine whether such actions are
lawful and commercially feasible. The Depositary shall, upon such sale, convert
and distribute proceeds of such sale (net of applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes) upon the terms set forth
in Section 4.01.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders or to arrange for the sale of the rights upon the terms
described above, the Depositary shall allow such rights to lapse.
Neither the Depositary nor the Company shall be responsible for (i) any
failure to determine that it may be lawful or commercially feasible to make such
rights available to Holders in general or any Holders in particular that is not
due to its negligence, or (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.04, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. If Korean law
requires the Depositary to obtain approval or license from a governmental agency
to effect a sale of rights, the Depositary may file an application for such
approval or license as it may deem desirable, in good faith. Such requirements
may adversely affect (i) the ability of the Depositary to dispose of such rights
or (ii) the costs and expenses of the Depositary associated with disposal of
rights.
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In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of Regulation S GDSs representing such
Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.05 Distributions Other Than Cash, Shares or Rights to Purchase
Shares. Whenever the Depositary or the Custodian shall receive any distribution
other than cash, Shares or rights upon any Deposited Securities, the Depositary
shall, after consultation with the Company, cause the securities or property so
received to be distributed as promptly as practicable to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 hereof, after
deduction or upon payment of the fees and expenses of the Depositary (which fees
shall be in an amount equal to the fee for issuance of GDSs pursuant to Section
2.05 hereof, which would have been charged as a result of the deposit by, or on
behalf of, Holders of such securities (treating all such securities as if they
were Shares) but which securities are instead distributed by the Depositary to
the Holders entitled thereto), in proportion to the number of Regulation S GDSs
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem, after consultation with the Company, commercially
feasible for accomplishing such distribution subject to any applicable laws or
regulations of Korea; provided, however, that if in the opinion of the
Depositary it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including any requirement that the Company, the
Custodian or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Holders) the Depositary deems such
distribution not to be commercially feasible, the Depositary may, after
consultation with the Company, adopt such method as it may deem commercially
feasible for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash; provided that any unsold balance of such securities or
property shall be distributed by the Depositary to the Holders entitled thereto
subject to any applicable laws or regulations of Korea, if such distribution is
commercially feasible without withholding for or on account of any taxes or
other governmental charges and without registration under the Securities Act, in
accordance with such commercially feasible method as the Depositary shall have
adopted.
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Section 4.06 [Intentionally Omitted]
Section 4.07 [Intentionally Omitted]
Section 4.08 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 which can, in the reasonable judgment of the Depositary and pursuant to
applicable law, be converted on a commercially feasible basis into Dollars
distributable to the Holders entitled thereto and the resulting Dollars
transferred to the United States, the Depositary shall as promptly as
practicable convert or cause to be converted, by sale or in any other manner
that it may determine, such Foreign Currency into Dollars, and such Dollars
(less any reasonable and customary expenses incurred by the Depositary in the
conversion of the Foreign Currency) shall be distributed to the Holders entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution shall be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion with regard to a particular Holder or distribution can be
effected only with the approval or license of any government or agency thereof,
the Depositary shall file such application for approval or license, if any, as
it may deem desirable, in good faith.
If at any time the Depositary shall determine that in its judgment any Foreign
Currency received by the Depositary is not convertible on a reasonable basis
into Dollars distributable to the Holders entitled thereto, or if any approval
or license of any government or authority or agency thereof which is required
for such conversion is denied or in the good faith opinion of the Depositary, is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may
distribute, pursuant to applicable law, the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to, or in its discretion may hold such Foreign Currency (without
liability for interest) for the respective accounts of, the Holders entitled to
receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be
effected for distribution to some Holders entitled thereto, the Depositary may
in its discretion make such conversion and distribution in dollars to the extent
permissible to the Holders for whom such conversion and distribution is
practicable and may distribute the balance of the Foreign Currency received by
the Depositary to, or hold such balance for the account of, the Holders for whom
such conversion and distribution is not practicable.
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Section 4.09 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 any Deposited
Securities, or whenever, for any reason, the Depositary causes a change in the
number of Shares that are represented by each Regulation S GDS or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, the Depositary shall fix a record date after consultation
with the Company (which shall be as near as practicable to the corresponding
record date for Shares set by the Company) for the determination of the Holders
who shall be entitled to receive such dividend, distribution or rights, or the
net proceeds of the sale thereof, or to receive notice of such meeting or to
exercise the rights of Holders with respect to such changed number of Shares.
Subject to the provisions of Sections 4.01 through 4.08 and to the other terms
and conditions of this Deposit Agreement, the Holders at the close of business
in New York on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof, to exercise the
rights of Holders hereunder with respect to such changed number of Shares in
proportion to the number of Regulation S GDSs held by them respectively or with
respect to such other matter.
Section 4.10 Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting of, or solicitation by the Company of consents
or proxies from, holders of Shares or other Deposited Securities, the Depositary
shall, if requested in writing by the Company, fix a record date as provided in
Section 4.09 for determining the Holders entitled to give instructions for the
exercise of voting rights. The notice to the Depositary that there will be a
meeting of holders of Shares shall be provided by the Company in English to the
Depositary, with the Company using its reasonable good faith efforts to deliver
such notice to the Depositary in no event less than twenty-one (21) days in
advance of such meeting. The Company shall transmit to the Depositary such
notice, the agenda therefor as well as the English translations thereof, which
the Depositary shall mail to Holders as soon as practicable after receipt of the
same by the Depositary, together with: (a) such information as is contained in
such notice of meeting (or solicitation of consent or proxy) received by the
Depositary from the Company, (b) a statement that the Holders of record at 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 number of Shares or other Deposited Securities
represented by their respective Regulation S GDSs evidenced by their respective
Regulation S GDRs and (c) a brief statement as to the manner in which such
instructions may be given. Voting instructions may be given only in respect of a
number of Regulation S GDSs representing an integral number of Deposited
Securities.
Upon the timely request of a Holder of Regulation S GDSs evidenced by
Regulation S GDRs on such record date received on or before the date established
by the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Articles of Incorporation of the Company, to vote or cause the Custodian to vote
the Shares represented by Regulation S GDSs evidenced by such Regulation S GDRs
in accordance with the instructions set forth in such request. Holders and
Beneficial Owners acknowledge, however, that the Company may not notify the
Depositary sufficiently in advance of the scheduled date of a meeting or
solicitation of consents or proxies to enable the Depositary to make a timely
mailing of such notices to the Holders of Regulation S GDRs, and that the
Holders of Regulation S GDRs may not receive such notices sufficiently in
advance of a meeting or solicitation of consents or proxies to give instructions
to the Depositary. The Depositary shall not attempt to exercise the right to
vote that attaches to the Shares other than in accordance with such
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instructions. Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote or attempt to exercise the right to vote the Shares
or other Deposited Securities represented by Regulation S GDSs except pursuant
to and in accordance with the written voting instructions (including those
instructions in electronic form) from Holders or in accordance with the
provisions of this Section 4.10.
To the extent the Depositary does not receive instructions from the
Holders on or prior to such date, the Depositary shall vote or cause to be voted
the Deposited Securities in the same manner and in the same proportion as the
holders of all other outstanding Shares vote their Shares.
Notwithstanding anything else contained in this Deposit Agreement or any
Regulation S GDR, 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. The Company agrees to take any and all actions reasonably necessary to
enable Holders and Beneficial Owners to exercise the voting rights accruing to
the Deposited Securities.
Subject to the applicable laws or rules of any securities exchange on
which the Deposited Securities are listed or traded, at least three (3) days
prior to the date of such meeting, the Depositary shall, if requested and at the
expense of the Company, deliver to the Company copies of all voting instructions
received from Holders of Receipts, if any, in accordance with which the
Depositary will vote, or cause to be voted, the Deposited Securities represented
by the Regulation S GDSs evidenced by such Regulation S GDRs at such meeting. A
Holder or Beneficial Owner of Regulation S GDSs shall not be entitled to give
any instructions with respect to voting rights associated with Regulation S GDSs
evidenced by Regulation S GDRs held by such Holder if and to the extent the
total number of Shares beneficially owned by such Holder or Beneficial Owner
exceeds any limit 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.
The Company acknowledges and agrees that the provisions of Section 5.09
herein shall apply to any liability or expense of the Depositary which may arise
out of or in connection with any action of the Depositary or the Custodian in
voting pursuant to this Section 4.10.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation of the Company or sale of assets by the Company, any securities
which shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities, and the Regulation S GDSs shall, subject to the terms of
this Deposit Agreement and applicable laws, including any applicable provisions
of the Securities Act and the Securities Exchange Act, thenceforth represent the
new Deposited Securities so received, unless additional or new Regulation S GDSs
are created pursuant to the following sentence. Alternatively, the Depositary
may, with the Company's approval and pursuant to applicable law, and shall, at
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the Company's request and pursuant to applicable law, and subject to Section
5.08 herein, create new or additional Regulation S GDSs representing such new
Deposited Securities and execute and deliver additional Regulation S GDRs
evidencing such Regulation S GDSs as in the case of a stock dividend on the
Shares, and may call for the surrender of outstanding Regulation S GDRs to be
exchanged for new Regulation S GDRs specifically describing such new Deposited
Securities.
Notwithstanding the foregoing, in the event that any security so received
may not be lawfully distributed to some or all Holders in the reasonable
judgment of the Depositary and its counsel after consultation with the Company,
the Depositary may, with the Company's approval, and shall, if the Company
requests, subject to receipt of an opinion of Company's counsel reasonably
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.01. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or commercially feasible to make such securities available to Holders in general
or to any Holder in particular that is not due to its negligence, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Section in respect of the Deposited Securities, the Depositary
shall, subject to applicable law, give notice thereof in writing, at the
Company's expense, to all Holders.
Section 4.12 Transmittal by the Depositary of Company Notices, Reports and
Communications. The Depositary shall make available for inspection during
business hours by Holders at its Principal New York Office and at the office of
each Custodian copies of this Deposit Agreement, any notices, reports or
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary or the Custodian, or the
nominee of either of them, as the holder of the Deposited Securities, and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary shall also send to Holders, copies of such notices,
reports and communications when furnished by the Company to the Depositary
pursuant to Section 5.07.
Section 4.13 Taxation. Notwithstanding any other provision of this Deposit
Agreement, in the event that the Depositary determines, based on the advice of
counsel, that any distribution in property (including Shares or rights to
subscribe therefor or other securities) is subject to any tax or governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor or other securities) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or governmental
charges, including 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 or governmental charges to the Holders entitled
thereto in proportion to the number of Regulation S GDSs held by them
respectively and the Depositary shall, if commercially feasible without
withholding for or on account of taxes or other governmental charges, without
registration of such Shares or other securities under the Securities Act and
otherwise in compliance with applicable law, distribute any unsold balance of
such property in accordance with the provisions of this Deposit Agreement.
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The Depositary will, and will instruct the Custodian to, forward to the
Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agents to file the necessary tax
reports with governmental authorities or agencies. The Depositary, the Custodian
or the Company and its agents may file such reports as are necessary to reduce
or eliminate applicable taxes on dividends and on other distributions in respect
of Deposited Securities under applicable tax treaties or laws for the Holders
and Beneficial Owners. In accordance with instructions from the Company and to
the extent practicable, the Depositary or the Custodian will take reasonable
administrative actions to obtain tax refunds, reduced withholding of tax at
source on dividends and other benefits under applicable tax treaties or laws
with respect to dividends and other distributions on the Deposited Securities.
As a condition to receiving such benefits, Holders and Beneficial Owners of
Regulation S GDSs may be required from time to time, and in a timely manner, to
file such proof of taxpayer status, residence and beneficial ownership (as
applicable), to execute such certificates and to make such representations and
warranties, or to provide any other information or documents, as the Depositary
or the Custodian may deem necessary or proper to fulfill the Depositary's or the
Custodian's obligations under applicable law. The Depositary or the Custodian
will take reasonable administrative actions to provide Holders in a timely
manner the required forms or documents to allow Holders and Beneficial Owners to
obtain a reduced withholding of tax at source on dividends and other
distributions on the Deposited Securities, capital gains and other taxes, and
other benefits under applicable tax treaties or laws. The Depositary and the
Company shall have no obligation or liability to any person if any Holder or
Beneficial Owner fails to provide such information or if such information does
not reach relevant tax authorities in time for any Holder or Beneficial Owner to
obtain the benefit of any tax treaty. The Holders and Beneficial Owners shall
indemnify the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents and Affiliates (other than Affiliates that are
Holders or Beneficial Owners) 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 for such Holder or
Beneficial Owner pursuant to this Section.
Notwithstanding any other provision of this Deposit Agreement, before
making any distribution or other payment on any Deposited Securities, the
Company or its agent shall make such deductions (if any) which, by the laws of
Korea, the Company or its agent is required to make in respect of any income,
capital gains or other taxes and the Company or its agent may also deduct the
amount of any tax or governmental charges payable by the Company or its agent or
for which the Company or its agent might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the Company and its agent shall have no obligation to
any Holder or Beneficial Owner to apply a rate under any treaty or other
arrangement between Korea and the country within which such Holder or Beneficial
Owner is resident unless such Holder or Beneficial Owner has timely provided to
the Company or its agent evidence of the residency of such Holder or Beneficial
-29-
Owner that is accepted by the relevant tax authorities of Korea. If the Company
(or any of its agents) withholds from any distribution any amount on account of
taxes or governmental charges, or pays any other tax in respect of such
distribution (i.e., stamp duty tax, capital gains or other similar tax), the
Company shall (and shall cause such agent to) remit promptly to the Depositary
information about such taxes or governmental charges withheld or paid, and, if
so requested, the tax receipt (or other proof of payment to the applicable
governmental authority) therefor, in each case, in a form satisfactory to the
Depositary. The Depositary shall, to the extent required by U.S. law, report to
Holders any taxes withheld by it or the Custodian, and, if such information is
provided to it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary or the Custodian, as applicable.
Neither the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company other
than as specified below. The Depositary shall not incur any liability for any
tax consequences that may be incurred by Holders and Beneficial Owners on
account of their ownership of the Regulation S GDSs, including without
limitation, tax consequences resulting from the Company (or any of its
subsidiaries) being treated as a "Foreign Personal Holding Company," or as a
"Passive Foreign Investment Company" (in each case as defined in the U.S.
Internal Revenue Code and the regulations issued thereunder) or otherwise. Upon
request, the Depositary shall promptly provide (i) each Holder and (ii) each
person that was a Holder during the period to which the information applies, a
copy of such information provided to the Depositary.
Section 4.14 Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act and, accordingly, files
certain reports with the Commission. Such reports and other information, when so
filed, can be inspected and copied at the public reference facilities maintained
by the Commission at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇. Copies of such material may be obtained at prescribed
rates. Such reports and other information may also be inspected at the offices
of The New York Stock Exchange, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.01 Maintenance of Depositary's Office and Register. Until the
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 and surrender of Regulation S GDRs in accordance with the provisions
of this Deposit Agreement.
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The Depositary shall keep books, if the book-entry settlement system is
available for Regulation S GDSs, at its Principal New York Office and if the
book-entry settlement system is not available for Regulation S GDSs, in its
Principal New York Office and its Principal London Office for the registration
of Regulation S GDRs and transfers of Regulation S GDRs which office or offices,
as the case may be, shall be open at all reasonable times for inspection by
Holders and the Company; provided that such inspection shall not, to the
Depositary's knowledge, be for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement, the Regulation S GDSs or the
Regulation S GDRs.
The Depositary may close the transfer books with respect to Regulation S
GDRs, upon notice to the Company, at any time or from time to time, when deemed
necessary or advisable by it in connection with the performance of its duties
under this Deposit Agreement, or at the reasonable request of the Company.
If any Regulation S GDRs or the Regulation S GDSs evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, with the approval of
the Company, appoint a Registrar or one or more co-registrars for registration
of such Regulation S GDRs in accordance with any requirements of such exchange
or exchanges or system or systems. Such Registrar or co-registrars may be
removed and a substitute or substitutes appointed by the Depositary upon notice
to the Company.
Section 5.02 Exoneration. Neither the Depositary nor the Company shall
incur any liability to any Holder or Beneficial Owner if, by reason of any
provision of any present or future law of the United States, Korea or any other
country or jurisdiction, or of any other governmental authority, 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, terrorism or war or other circumstances
beyond its control, the Depositary or the Company shall be prevented, delayed or
forbidden from, or subject to any civil or criminal liability on account of,
doing or performing any act or thing which by the terms of this Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary or
the Company incur any liability to any Holder or Beneficial Owner by reason of
any non-performance or delay, caused as aforesaid, in the performance of any act
or thing which by the terms of this Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of this Deposit Agreement or incur any
liability for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of Regulation S GDSs.
Section 5.03 Standard of Care. The Company assumes no obligation nor shall
it be subject to any liability under this Deposit Agreement or the Regulation S
GDRs to Holders, Beneficial Owners or other persons, including for any
consequential or punitive damages for any breach of the terms of this Deposit
Agreement, except that it agrees to act in good faith and without negligence in
the performance of its obligations set forth in this Deposit Agreement. The
Depositary assumes no obligation nor shall it be subject to any liability under
this Deposit Agreement or the Regulation S GDRs to Holders, Beneficial Owners of
Regulation S GDRs or other persons (including, without limitation, liability
with respect to the validity or worth of the Deposited Securities), including
for any consequential or punitive damages for any breach of the terms of this
Deposit Agreement, except that it agrees to act in good faith and without
negligence in the performance of its duties set forth in this Deposit Agreement.
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The Depositary and the Company undertake to perform such duties and only
such duties as are specifically set forth in this Deposit Agreement, and no
implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or the Company.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Regulation S GDRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither the Depositary nor the Company shall be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or Beneficial
Owner, or any other person believed by it in good faith to be competent to give
such advice or information. Each of the Depositary, its agents and the Company
may rely and shall be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
Neither the Depositary and its agents nor the Company shall be liable for
any failure by the Depositary to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote; provided, that any such action or omission is in good faith and
without negligence and in accordance with the terms of this Deposit Agreement.
Neither the Depositary nor the Company shall incur any liability for any failure
to determine that any distribution or action may be lawful or commercially
feasible, for any investment risk associated with acquiring an interest in the
Deposited Securities, for any tax consequences that may result from the
ownership of Regulation S GDSs, Shares or Deposited Securities, for the
credit-worthiness of any third party or for allowing any rights to lapse upon
the terms of this Deposit Agreement. The Depositary shall not incur any
liability for the content of any information submitted to it by the Company for
distribution to the Holders, for any inaccuracy of any translation thereof
(provided the Depositary was not involved in translating such information), for
the validity or worth of the Deposited Securities or for the failure or
timeliness of any notice from the Company.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.04 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by ninety (90) days' prior written notice of its election so to do
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
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The Depositary may at any time be removed by the Company by ninety (90)
days' prior written notice of such removal, which shall become effective upon
the appointment 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 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, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; 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, 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 and such other books and records maintained by such predecessor with
respect to its function as Depositary hereunder. Any such successor depositary
shall at its own cost promptly mail notice of its appointment to all 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 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering Regulation S
GDSs 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 provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses (other
than the charges and expenses of the Custodian or any other agent of the
Depositary) as the Depositary and the Company may agree to in writing from time
to time. Responsibility for payment of such charges may at any time and from
time to time be changed by agreement between the Company and the Depositary.
Unless otherwise agreed, the Depositary shall present its statement for such
expenses and fees or charges to the Company once every three (3) months. Such
statement of expenses and fees will be provided to the Company in an itemized
invoice reasonably satisfactory to the Company. The charges and expenses of the
Custodian or any agent of the Depositary are for the sole account of the
Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.04 hereof, 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 5.06 The Custodian. The Depositary, after consultation with the
Company, shall from time to time appoint one or more agents to act for it as
Custodian hereunder. The Depositary has initially appointed Korea Securities
Depository ("KSD") as custodian of the Depositary for the purpose of this
Deposit Agreement. The Custodian in acting hereunder shall be subject at all
times and in all respects to the direction of the Depositary and shall be
responsible solely to it. If the Depositary receives a notice of the resignation
of the Custodian and upon effectiveness of such resignation there would be no
Custodian hereunder, the Depositary shall, promptly after receiving such notice
and after consultation with the Company, appoint a substitute custodian which
shall thereafter be the Custodian hereunder. Such resignation of the Custodian
shall take effect upon the appointment of a successor custodian and its
acceptance of such appointment. The Depositary, after consultation with the
Company, when it determines that it is appropriate to do so, may appoint a
substitute or an additional custodian, which shall thereafter be a Custodian
hereunder. Immediately upon any change of Custodian or appointment of additional
Custodians, the Depositary shall at its own expense give notice thereof in
writing to all Holders.
Upon the appointment of any successor depositary hereunder, any 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 5.07 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
any 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
distribution or offering of any rights in respect of the Deposited Securities,
the Company agrees to transmit to the Depositary and to the Custodian a copy of
the notice thereof in the English language, but otherwise in the form given or
to be given to holders of Shares or other Deposited Securities.
In addition, the Company will transmit to the Depositary English-language
versions of the other notices, reports and communications which are generally
made available by the Company to holders of Shares or other Deposited
Securities. The Depositary will make available a copy of any such notices,
reports or communications issued by the Company and delivered to the Depositary
for inspection by the Holders of the Regulation S GDRs evidencing the Regulation
S GDSs representing such Shares governed by such provisions at the Depositary's
Principal New York Office, at the office of the Custodian and at any other
designated transfer office. The Depositary shall arrange, at the request of the
Company and at the Company's expense, for the prompt mailing of copies thereof
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.
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Section 5.08 Issuance of Additional Shares, Etc. The Company agrees that
in the event it or any of its Subsidiaries 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 obtain U.S. legal advice and take all
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 Securities Exchange Act and the securities laws of the states of the U.S.).
In support of the foregoing, the Company will furnish to the Depositary, if so
required after consultation with the Company, (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 this
Deposit Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Subsidiaries will at any time (x) 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 Subsidiary, or (y) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Securities Exchange Act or have been
registered under the Securities Act and, if applicable, the Securities Exchange
Act (and such registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.09 Indemnification. The Company agrees to indemnify the
Depositary and each Custodian and their respective officers, directors and
employees 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 (a) in connection with the offer, issuance, sale, resale,
deposit, withdrawal or transfer of Regulation S GDRs, Regulation S GDSs, or
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Shares, as the case may be, or (b) out of acts performed or omitted, including
but not limited to any delivery by the Depositary on behalf of the Company of
information regarding the Company, in accordance with the provisions of this
Deposit Agreement and of the Regulation S GDRs, as the same may be amended,
modified or supplemented from time to time, in any such case, (i) by either the
Depositary or any Custodian, except for any liability or expense arising out of
the negligence or bad faith of either of them, or (ii) by the Company, except to
the extent that such liability or expense arises out of information relating to
the Depositary or to the Custodian, as the case may be, furnished in writing to
the Company by the Depositary expressly for use in any document relating to the
Regulation S GDSs.
The Depositary agrees to indemnify the Company and its officers, directors
and employees and held 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 by the Depositary due to the
negligence or bad faith of the Depositary. With respect to any liability or
expense of the Company, its officers, directors or employees arising out of acts
negligently performed or omitted to be performed by the Custodian, the
Depositary agrees to assign to the Company, to the extent of such liability or
expense, such 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 agreement between the Depositary and the Custodian on the subject
of custody of the Deposited Securities represented by Regulation S GDSs.
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 5.09 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10 and Section 3.05 and applicable Korean law, the
Depositary, its Affiliates and their agents may own and deal in any class of
securities of the Company and its Affiliates and in Regulation S GDSs. The
Depositary may cause the issuance of Regulation S GDSs against evidence of
rights to receive Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof. In its capacity as Depositary, the Depositary
shall not lend Shares or Regulation S GDSs; provided, however, that to the
extent permitted by Korean law, the Depositary reserves the right to (i) cause
the issuance of Regulation S GDSs prior to the receipt of Shares pursuant to
Section 2.03 and (ii) deliver Shares prior to the receipt and cancellation of
Regulation S GDSs pursuant to Section 2.07, including Regulation S GDSs which
were issued under (i) above but for which Shares may not have been received;
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further provided, however, that the Depositary shall not issue Regulation S GDSs
prior to the receipt of Shares in the case of the deposit of Shares by the
Company in connection with an offering of Regulation S GDSs or pursuant to
Section 4.02 or 4.04, unless requested by the Company and to the extent
permitted by applicable Korean law. The Depositary may receive Regulation S GDSs
in lieu of Shares under (i) above and receive Shares in lieu of Regulation S
GDSs under (ii) above. Each such transaction shall be (a) subject to a written
agreement whereby the person or entity to whom Regulation S GDSs or Shares are
to be delivered or its customer (the "Applicant") (w) represents that at the
time of the transaction the Applicant or its customer owns the Shares or
Regulation S GDSs that are to be delivered by the Applicant under such
transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Regulation S GDSs in its records and to hold such Shares or Regulation S GDSs in
trust for the Depositary until such Shares or Regulation S GDSs are delivered to
the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares or Regulation S
GDSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems reasonably appropriate, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
deems appropriate, (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 Regulation S GDSs and Shares involved in such transactions
at any one time to thirty percent (30%) of the Regulation S GDSs outstanding
(without giving effect to Regulation S GDSs outstanding under (i) above);
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate; further, provided,
however, that the Depositary shall not enter into any transaction under (i) or
(ii) above that will have the effect of exceeding the thirty percent (30%)
limitation without providing prior notice to the Company of the Depositary's
entering into of any such transaction.
The Depositary may also set limits with respect to the number of
Regulation S GDSs and Shares involved in transactions under (i) or (ii) above,
with any one person on a case-by-case basis as it deems appropriate; provided,
however, that the Depositary shall not enter into any transaction under (i) or
(ii) above that will have the effect of exceeding the thirty percent (30%)
limitation without providing prior notice to the Company of the Depositary's
entering into of any such transaction. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 List of Regulation S GDR Holders. Promptly upon request by
the Company, the Depositary shall furnish to it a list, as of a recent date, of
the names, addresses and holdings of Regulation S GDSs by all persons in whose
names Regulation S GDRs are registered on the books of the Depositary. Any other
records maintained by the Depositary, the Registrar, any co-registrar or any
co-transfer agent under this Deposit Agreement shall be made available to the
Company upon reasonable request.
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ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01 Amendment/Supplement. The form of the Regulation S GDRs, any
provisions of this Deposit Agreement and the terms of any Regulation S GDR may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders shall not,
however, become effective as to outstanding Regulation S GDRs until the
expiration of 30 days after notice of such amendment shall have been given to
the Holders of outstanding Regulation S GDRs in accordance with Section 7.05
hereof. 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 the Regulation S GDSs to be settled 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 materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Regulation S GDR or to own any beneficial interest therein, to consent and
agree to such amendment and to be bound by this Deposit Agreement and Regulation
S GDR as amended thereby. In no event shall any amendment impair the right of
the Holder to surrender such Regulation S GDR and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require an
amendment of this Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend this Deposit Agreement and the Regulation S GDRs at
any time in accordance with such changed laws, rules or regulations. Such
amendment to this Deposit Agreement and the Regulation S GDRs in such
circumstances may become effective before a notice of such amendment is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
Section 6.02 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by providing notice
of such termination to the Holders of all Regulation S GDRs then outstanding at
least thirty (30) days prior to the date fixed in such notice for such
termination. If (i) ninety (90) days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign,
or (ii) ninety (90) days shall have expired after the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.04, the Depositary may
terminate this Deposit Agreement by providing notice of such termination to the
Holders of all Regulation S GDRs then outstanding at least thirty (30) days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of a Regulation S GDR will,
upon surrender of such Regulation S GDR at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Regulation S GDRs referred to in Section 2.07 and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
-38-
amount of Deposited Securities represented by such Regulation S GDR. If any
Regulation S GDR s shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
Regulation S GDRs, shall suspend the distribution of dividends to the Holders
thereof, shall not accept deposits of Shares (and shall instruct each Custodian
to act accordingly), and shall not give any further notices or perform any
further acts under this Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell property and rights and convert Deposited Securities into
cash as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Regulation S GDRs surrendered to the Depositary
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of a Regulation S GDR, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it hereunder, without liability for interest,
for the pro rata benefit of the Holders of Regulation S GDRs which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement, except to account
for such net proceeds and other cash (after deducting, or charging, as the case
may be, in each case, the charges of the Depositary for the surrender of a
Regulation S GDR, any expenses for the account of the Holder in accordance with
the terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments) and its obligations under Section 5.09.
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 5.05, 5.09 and 7.06 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary 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 respective successors)
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person, except to the extent specifically set forth in
this Deposit Agreement (including in Section 4.14 with respect to the right to
receive upon request certain information with respect to the Company). Nothing
in this Deposit Agreement shall be deemed to give rise to a partnership or joint
venture among the parties nor establish a fiduciary or similar relationship
among the parties. The parties hereto acknowledge and agree that (i) the
Depositary and its Affiliates may at any time have multiple banking
-39-
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.03 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Regulation S GDRs should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.04 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of Regulation S GDSs shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of any Regulation S GDR by acceptance thereof or any
beneficial interest therein.
Section 7.05 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Kookmin Bank
▇▇-▇ ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇, ▇▇▇▇▇, Attention: IR Team
Manager, facsimile number: ▇▇▇-▇-▇▇▇▇-▇▇▇▇, or to any other address which the
Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier, or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: Depositary Receipts Department, or
to any other address which the Depositary may specify in writing to the Company.
Notwithstanding anything else contained herein, delivery of a notice sent
to the Depositary or to the Company by facsimile or electronic messaging shall
not be deemed to be effective unless and until a confirmation receipt is sent by
the Depositary or the Company, as the case may be, to the sender of such
facsimile or electronic message
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, air courier or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the books of the Depositary or, if such Holder
shall have filed with the Depositary a request that notices intended for such
Holder be mailed to some other address, at the address specified 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 Regulation S GDSs held by such other Holders.
-40-
Delivery of a notice sent by mail, air courier, or facsimile transmission
shall be deemed to be effective at three days (in the case of domestic mail or
air courier) or seven days (in the case of overseas mail) from the date when a
duly addressed letter containing the same is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service or at the time
when a confirmation thereof is produced in the case of facsimile transmission,
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 facsimile
transmission received by it from any Holder, the Custodian, the Depositary or
the Company, notwithstanding that such facsimile transmission shall not be
subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective one day after 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 Governing Law and Jurisdiction. This Deposit Agreement and
the Regulation S GDRs shall be interpreted in accordance with, and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by,
the laws of the State of New York without reference to the principles of choice
of law thereof. Notwithstanding anything contained in this Deposit Agreement,
any Regulation S GDR or any present or future provisions of the laws of the
State of New York, the rights of holders of Shares and of any other Deposited
Securities and the obligations and duties of the Company in respect of the
holders of Shares and other Deposited Securities, as such, shall be governed by
the laws of Korea (or, if applicable, such other laws as may govern the
Deposited Securities).
Except as set forth in the following paragraph of this Section 7.06, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts.
The Company hereby designates, appoints and empowers Kookmin Bank, New
York Branch (the "Agent") now at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ,▇▇▇▇▇ as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph of
this Section 7.06. If for any reason the Agent shall cease to act as such, the
Company agrees to designate a new agent in New York on the terms and for the
purposes of this Section 7.06 reasonably satisfactory to the Depositary. The
Company further hereby consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent, with a
copy mailed to the Company by registered or certified air mail, postage prepaid,
to its address provided in Section 7.05 hereof.
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The Company and the Depositary each irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any actions, suits or proceedings
brought in any court as provided in this Section 7.06, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
The Company and the Depositary each irrevocably and unconditionally
waives, to the fullest extent permitted by law, and agrees not to plead or
claim, any right of immunity from legal action, suit or proceeding, 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, from execution of judgment, or from any other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
and consents to such relief and enforcement against it, its assets and its
revenues in any jurisdiction, in each case with respect to any matter existing
or arising between the Company and the Depositary out of, or in connection with,
the Deposit Agreement, any Regulation S GDR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement. The provisions of this Section 7.06 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.07 Assignment. Subject to the provisions of Section 5.04 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary, except as otherwise provided herein or with the prior written
consent of the other.
Section 7.08 Korean Law References. Any summary of Korean laws and
Regulations and of the terms of the Company's Articles of Incorporation set
forth in this Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Incorporation
may change after the date of this Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of this Deposit Agreement to
update any such summaries.
Section 7.09 Titles. All references in this Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof," "hereby", "hereunder", and words of similar import refer to
this Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of Regulation S GDSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
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IN WITNESS WHEREOF, Kookmin Bank and Citibank, N.A. have duly executed
this Deposit Agreement as of the day and year first above set forth and all
Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of Regulation S GDSs evidenced by Regulation S GDRs issued in accordance
with the terms hereof.
KOOKMIN BANK
By: /s/ ▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: CFO/
Senior Executive Vice President
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-43-
EXHIBIT A
Number__________ (CUSIP Number _______)
Regulation S Global Depositary Shares (One
Regulation S Global Depositary Share
Representing one (1) Fully Paid Share of
Common Stock, par value 5,000 Won per
share, of the Company
[FORM OF FACE OF]
[MASTER] REGULATION S GLOBAL DEPOSITARY RECEIPT
evidencing
REGULATION S GLOBAL DEPOSITARY SHARES
representing
DEPOSITED FULLY PAID SHARES OF COMMON STOCK
OF
KOOKMIN BANK
(Incorporated under the laws of
the Republic of Korea)
SECURITIES ACT LEGEND
NEITHER THIS REGULATION S GDR, NOR THE REGULATION S GDSs EVIDENCED HEREBY,
NOR THE SHARES REPRESENTED THEREBY HAVE BEEN OR WILL BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THE OFFER, SALE, PLEDGE OR OTHER TRANSFER OF THIS REGULATION S GDR, THE
REGULATION S GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY EACH IS
SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDERS AND BENEFICIAL
OWNERS HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS REGULATION S GDR AND
A-1
THE REGULATION S GDSs EVIDENCED HEREBY, ACKNOWLEDGE THAT SUCH REGULATION S GDR,
THE REGULATION S GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND AGREE FOR THE BENEFIT OF THE
COMPANY AND THE DEPOSITARY THAT THIS REGULATION S GDR, THE REGULATION S GDSs
EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES
GOVERNING THE OFFER AND SALE OF SECURITIES AND, PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD (DEFINED AS 40 DAYS AFTER THE LATER OF (I) THE COMMENCEMENT OF
THE OFFERINGS OF (A) REGULATION S GDSs OUTSIDE THE UNITED STATES IN RELIANCE ON
REGULATION S AND ANY OTHER APPLICABLE LAW IN TRANSACTIONS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT, (B) SHARES IN THE REPUBLIC OF KOREA IN
RELIANCE ON REGULATION S AND (II) THE CLOSING DATE WITH RESPECT TO THE
REGULATION S GDSs AND THE SHARES) ONLY (1) OUTSIDE THE UNITED STATES TO A PERSON
OTHER THAN A U.S. PERSON (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (2) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT.
UPON THE EXPIRATION OF THE RESTRICTED PERIOD, THIS REGULATION S GDR, THE
REGULATION S GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED BY REGULATION S
GDSs SHALL NO LONGER BE SUBJECT TO THE RESTRICTIONS ON TRANSFER PROVIDED IN THIS
LEGEND, PROVIDED THAT AT THE TIME OF SUCH EXPIRATION THE OFFER AND SALE OF THE
REGULATION S GDSs EVIDENCED HEREBY AND THE SHARES REPRESENTED THEREBY BY THE
HOLDER THEREOF IN THE UNITED STATES WOULD NOT BE RESTRICTED UNDER THE SECURITIES
LAWS OF THE UNITED STATES OR ANY STATE, TERRITORY OR POSSESSION OF THE UNITED
STATES.
EACH HOLDER AND BENEFICIAL OWNER, BY ITS ACCEPTANCE OF THIS REGULATION S
GDR OR BENEFICIAL INTEREST IN THE REGULATION S GDSs EVIDENCED HEREBY, AS THE
CASE MAY BE, AT ANY TIME DURING THE RESTRICTED PERIOD, REPRESENTS THAT IT
UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS.
LEGEND
THE DEPOSITARY HAS BEEN ADVISED BY THE COMPANY THAT, AS OF THE DATE HEREOF, THE
COMPANY HAS ESTABLISHED AND EXISTING WITH THE BANK OF NEW YORK AN AMERICAN
DEPOSITARY RECEIPTS FACILITY WHICH CONTEMPLATES THE ISSUANCE OF AMERICAN
DEPOSITARY SHARES TRADED ON THE NEW YORK STOCK EXCHANGE (THE "ADR FACILITY").
A-2
THE REGULATION S GDR FACILITY CREATED UNDER THE DEPOSIT AGREEMENT IS SEPARATE
AND DISTINCT FROM THE ADR FACILITY. THE REGULATION S GDSs ISSUED UNDER THE
DEPOSIT AGREEMENT ARE NOT FUNGIBLE WITH THE AMERICAN DEPOSITARY SHARES ISSUED
AND OUTSTANDING UNDER THE ADR FACILITY AND HAVE SECURITIES IDENTIFIERS THAT ARE
SEPARATE AND DISTINCT FROM THE SECURITIES IDENTIFIERS FOR THE AMERICAN
DEPOSITARY SHARES ISSUED AND OUTSTANDING UNDER THE ADR FACILITY.
THE DEPOSITARY WILL ISSUE AND DELIVER REGULATION S GDSs ONLY UNDER THE DEPOSIT
AGREEMENT. THERE IS NO GUARANTEE THAT THE HOLDERS AND BENEFICIAL OWNERS UNDER
THE DEPOSIT AGREEMENT WILL RECEIVE THE SAME RIGHTS OR ENTITLEMENTS AS THE
HOLDERS AND BENEFICIAL OWNERS OF DEPOSITARY SHARES ISSUED AND OUTSTANDING UNDER
THE ADR FACILITY. NEITHER THE DEPOSITARY NOR THE BANK OF NEW YORK HAVE AGREED
AND NEITHER HAS ANY OBLIGATIONS UNDER THE DEPOSIT AGREEMENT OR THE DEPOSIT
AGREEMENT FOR THE ADR FACILITY TO TREAT HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES ON THE SAME TERMS AS HOLDERS AND BENEFICIAL OWNERS OF
THE REGULATION S GDSs OR VICE VERSA. THE REGULATION S GDSs ARE SUBJECT TO
LIMITATIONS ON TRANSFER AND CANCELLATION AND WITHDRAWAL DURING THE RESTRICTED
PERIOD.
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that Citivic Nominees Limited, as nominee for
Citibank, N.A., London Branch, as common depository for Euroclear ("Euroclear")
and Clearstream ("Clearstream"), is the record owner of Regulation S GDSs,
representing deposited validly issued and fully paid shares of Common Stock, par
value Won 5,000 per share, or evidence of rights to receive such shares
("Shares"), of Kookmin Bank, a company organized under the laws of the Republic
of Korea (the "Company"). As of the date of the Regulation S Deposit Agreement,
each Regulation S GDS represents one (1) Share(1) deposited under the Regulation
S Deposit Agreement (as hereafter defined) with the Custodian, which at the date
of execution of the Regulation S Deposit Agreement is Korea Securities
Depository (the "Custodian").
(1) The Regulation S Deposit Agreement. This Regulation S Global
Depositary Receipt is one of the receipts (the "Regulation S GDR") executed and
delivered pursuant to the Regulation S Deposit Agreement dated as of June 21,
2005 (as amended from time to time, the "Regulation S Deposit Agreement"), by
and among the Company, the Depositary and all registered Holders and Beneficial
Owners of Regulation S GDRs, from time to time, each of whom by accepting a
Regulation S GDR or acquiring any beneficial interest therein, including any
beneficial interest in the Master Regulation S GDR, agrees to become a party
thereto and becomes bound by all terms and provisions thereof and hereof. The
Regulation S Deposit Agreement sets forth the rights of Holders and Beneficial
Owners 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
----------
(1) Subject to amendment as provided on Article VI of the Regulation S Deposit
Agreement.
A-3
Shares, securities, property and cash, collectively, the "Deposited
Securities"). Copies of the Regulation S Deposit Agreement are on file at the
Depositary's Principal New York Office, at the principal office of the Custodian
and at any other designated transfer office. The statements made in this
Regulation S GDR are summaries of certain provisions of the Regulation S Deposit
Agreement and are qualified by and subject to the detailed provisions of the
Regulation S Deposit Agreement, to which reference is hereby made. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities. Capitalized terms defined in the Regulation S Deposit
Agreement and not otherwise defined herein have the same defined meanings set
forth in the Regulation S Deposit Agreement.
(2) Withdrawal of Deposited Securities. Subject to receipt of confirmation
of listing of Shares on the Stock Market Division of the Korea Exchange, upon
(i) surrender of Regulation S GDRs at the Principal London Office or Principal
New York Office of the Depositary if the book-entry settlement system is not
then available for Regulation S GDSs or (ii) receipt by the Depositary at the
Principal New York Office of written instructions from a Participant of
Euroclear or Clearstream (any such participant, a "Participant") or its nominee,
as the case may be, on behalf of any Beneficial Owner together with a
corresponding credit to the Depositary's account at Euroclear or Clearstream for
the Regulation S GDSs so surrendered, if the book-entry settlement system is
then available for Regulation S GDSs, in either case for the purpose of
withdrawal of the Deposited Securities represented thereby, and upon receipt of
(x) payment of all fees and charges, including the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Regulation S GDSs (as set forth in Exhibit B to the Regulation S
Deposit Agreement), governmental charges and taxes payable in connection with
such surrender and withdrawal, (y) instructions of the Holder or Participant and
(z) the written certification and agreement hereinafter referred to, subject to
the terms and conditions of the Regulation S Deposit Agreement, the clearing
procedures of CSD, the Articles of Incorporation of the Company, to the
provisions of or governing the Deposited Securities and applicable laws, the
Holder of such Regulation S GDR acting for itself or on behalf of the Beneficial
Owner or Participant, as the case may be, shall be entitled to physical
delivery, to him or upon his order, or to electronic delivery (during the
Restricted Period, only through CSD or institutions having accounts with CSD to
an account outside the U.S.) to an account designated by such Participant,
Beneficial Owner or Holder, as the case may be, as permitted by applicable law,
of the amount of Deposited Securities at the time represented by the Regulation
S GDS surrendered for such purpose. Such delivery of Deposited Securities shall
be made, as hereinafter provided, without unreasonable delay.
During the Restricted Period, no Deposited Securities shall be delivered
as provided under the Regulation S Deposit Agreement unless such written order
shall be accompanied by an accurately and fully completed, signed certification
and agreement in substantially the form of Exhibit D-2 to the Regulation S
Deposit Agreement (in the case of the Initial Deposit) or Exhibit D-3 to the
Regulation S Deposit Agreement (in the case of a subsequent offering of
Regulation S GDSs). After the Restricted Period, delivery of Deposited
Securities upon surrender of Regulation S GDSs as provided in the Regulation S
Deposit Agreement may also be subject to delivery to the Depositary of such
written certification and agreement as the Company and Depositary may require. A
Regulation S GDR surrendered may be required by the Depositary to be endorsed in
blank or accompanied by properly executed instruments of transfer in blank.
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Upon satisfaction of each of the conditions above specified, the
Depositary (i) shall cancel the Regulation S GDSs Delivered to it (and, if
applicable, the Regulation S GDRs evidencing the Regulation S GDSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the
Regulation S GDSs so Delivered, and (iii) shall direct the Custodian to Deliver
(without unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the Regulation S GDSs 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 this Deposit Agreement, of the Regulation S GDRs evidencing the
Regulation S GDSs so canceled, of the Articles of Incorporation of the Company,
of 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.
Notwithstanding anything else contained in this Regulation S GDR or the
Regulation S Deposit Agreement, the Depositary may make delivery at the
Principal New York 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 Regulation S GDSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering Regulation S GDSs, and for the account of such Holder, the
Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such Regulation S GDSs to the
Depositary for delivery at the Principal New York Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
The Depositary shall not accept for surrender Regulation S GDSs
representing less than one Share. In the case of delivery to it of Regulation S
GDSs representing a number other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number 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 Regulation S GDSs
the number of Regulation S GDSs representing any remaining fractional Share, or
(ii) sell or cause to be sold the fractional Share represented by the Regulation
S GDSs 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 Regulation S GDSs.
(3) Transfer, Combination and Split-up of Regulation S GDRs.
(a) Transfer. The Registrar shall, without unreasonable delay, register
the transfer of Regulation S GDRs (and of the Regulation S GDSs represented
thereby) on the books maintained for such purpose, upon any surrender of such
Regulation S GDRs by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by any applicable law; provided, however,
that the Registrar shall refuse to register any transfer of Regulation S GDRs if
such registration would cause the total number of Shares represented by
Regulation S GDSs evidenced by Regulation S GDRs held by any Holder to exceed
the number of Shares as determined by the Company in order to comply with the
ownership restrictions referred to in Section 3.05 and notified in writing, from
time to time, to the Registrar.
A-5
Thereupon the Depositary shall cancel such Regulation S GDRs and execute new
Regulation S GDRs evidencing the same aggregate number of Regulation S GDSs as
those evidenced by the Regulation S GDRs canceled by the Depositary, shall cause
the Registrar to countersign such new Regulation S GDRs, and shall Deliver such
new Regulation S GDRs to or upon the order of the person entitled thereto if
each of the following conditions has been satisfied: (i) the Regulation S GDRs
have been duly Delivered by the Holder (or by a duly-authorized attorney of the
Holder) to the Depositary at its Principal New York Office for the purpose of
effecting a transfer thereof, (ii) the surrendered Regulation S GDRs have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Regulation S GDRs have been duly stamped (if
required by the laws of the State of New York or of the U.S.), (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 5.05 and
Exhibit B to the Regulation S Deposit Agreement) have been paid, and (v) the
Depositary has received such certifications and agreements as the Depositary and
the Company may require in order to comply with applicable laws and the
restrictions on transfer, prior to the termination of the Restricted Period,
subject, however, in each case, to the terms and conditions of the applicable
Regulation S GDRs, of the Regulation S Deposit Agreement and of applicable law,
in each case as in effect at the time thereof.
(b) Combination & Split-Up. The Depositary, subject to the terms and
conditions of the Regulation S Deposit Agreement, shall upon surrender of
Regulation S GDRs for the purpose of effecting a split-up or combination of such
Regulation S GDRs (and of the Regulation S GDSs represented thereby), execute
and deliver new Regulation S GDRs for the number of Regulation S GDSs in the
name of the same Holder for any authorized number of Regulation S GDSs
requested, evidencing the same class and aggregate number of Regulation S GDSs
as the Regulation S GDRs surrendered.
(c) Legends. The Regulation S GDRs executed and delivered upon any such
transfer, split-up or combination shall bear the Securities Act Legend if at the
time of delivery the restrictions contained therein are applicable, as
determined by the Company and the Depositary from time to time.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any Regulation S GDR, the delivery of any
distribution thereon or withdrawal of any Deposited Securities, the Depositary
or the Custodian may require from the Holder, the presenter of a Regulation S
GDR, the Beneficial Owner, the depositor of Shares or the presenter of written
instructions to adjust the Depositary's records (i) payment 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 or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any fees
and charges of the Depositary as provided in paragraph (8) of this Regulation S
GDR; (ii) compliance with (a) any laws or governmental regulations relating to
A-6
Regulation S GDRs or Regulation S GDSs or to the withdrawal of Deposited
Securities and (b) such reasonable procedures, as the Depositary and the Company
may establish consistent with the provisions of the Regulation S Deposit
Agreement; and (iii) production of proof satisfactory to it as to the identity
and genuineness of any signature appearing on any form, certification or other
document delivered to the Depositary in connection with the Regulation S Deposit
Agreement, including but not limited to, in the case of Regulation S GDRs, a
signature guarantee in accordance with industry practice.
The issuance and delivery of Regulation S GDSs against, or adjustments in
the records of the Depositary to reflect, deposits of Shares generally or
deposits of particular Shares may be suspended or withheld, or the registration
of transfer of Regulation S GDRs in particular instances may be refused, or the
registration of transfers generally may be suspended, or the surrender of
outstanding Regulation S GDSs for the purpose of withdrawal of Deposited
Securities may be suspended or refused, during any period when the transfer
books of the Depositary, the shareholders' register of the Company (or the
appointed agent of the Company for the transfer and registration of Shares) or
the books of the CSD are closed, or if any such action is deemed necessary or
advisable by the Company, the Depositary or the CSD, in good faith, at any time
or from time to time.
Notwithstanding anything herein to the contrary, after the Restricted
Period, a Holder is entitled to withdraw Deposited Securities subject only to
(i) temporary delays caused by closing the transfer books of the Depositary or
the Company or the deposit of Shares in connection with voting at a
shareholder's meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges to the Depositary, and (iii) compliance with any laws
or governmental regulations relating to Regulation S GDRs or to the withdrawal
of Deposited Securities.
(5) Liability of Holders and Beneficial Owners for Taxes and Other
Charges. If any Korean or other tax or governmental charge shall become payable
with respect to any Regulation S GDR or any Deposited Securities or Regulation S
GDS, such tax or other governmental charge shall be payable by the Holder of
such Regulation S GDRs to the Depositary and any Beneficial Owner of such
Receipt shall be liable to the Holder therefor. The Depositary may refuse, and
the Company shall be under no obligation, to effect any registration of transfer
of all or part of such Regulation S GDRs or to execute and deliver any new
Regulation S GDRs or to permit any deposit or, any withdrawal of Deposited
Securities represented by the Regulation S GDSs evidenced thereby until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Holder thereof any part or all of the Deposited
Securities represented by the Regulations S GDSs evidenced by such Regulation S
GDRs, and may apply such dividends or other distributions or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder and
the Beneficial Owner of such Regulation S GDRs remaining liable for any
deficiency.
A-7
(6) Representations and Warranties on Deposit, Transfer, Surrender and
Withdrawal of Shares or Regulation S GDRs. Each person depositing Shares under
the Regulation S Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, outstanding, fully paid, nonassessable, and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and (v) the Shares presented for deposit have not
been stripped of any rights or entitlements, and are not, and the Regulation S
GDSs will not be, "Restricted Securities" (under the Securities Act). Such
representations and warranties shall survive the deposit and withdrawal of
Shares and the issuance and cancellation of Regulation S GDSs in respect thereof
and the transfer of such Regulation S GDSs. 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.
Each person depositing Shares, taking delivery of or transferring
Regulation S GDSs or any beneficial interest therein, or surrendering Regulation
S GDSs or any beneficial interest therein and withdrawing Shares under the
Regulation S Deposit Agreement shall be deemed thereby to acknowledge that the
Regulation S GDRs, the Regulation S GDSs evidenced thereby and the Shares
represented thereby have not been and will not be registered under the
Securities Act, and may not be offered, sold, pledged or otherwise transferred
except in accordance with the restrictions on transfer set forth in the
Securities Act Legend, and such person shall be deemed thereby to represent and
warrant that such deposit, transfer or surrender or withdrawal complies with the
foregoing restrictions. Such representations and warranties shall survive any
such deposit, transfer or surrender or withdrawal of the Shares or the
Regulation S GDRs or any beneficial interest therein.
(7) Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder or any Beneficial Owner may be required and every
Holder and Beneficial Owner agrees, from time to time (a) to provide to the
Depositary and the Custodian such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of Regulation S GDSs and
Deposited Securities, compliance with all applicable laws and the terms of the
Regulation S Deposit Agreement, and the provisions of, or governing, the
Deposited Securities, and (b) to execute such certifications and to make such
representations and warranties and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or on the shareholders' register of the Company ) as the Depositary or
the Custodian may deem reasonably necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Regulation S Deposit Agreement and the applicable
Regulation S GDR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Regulation
S GDR, or the distribution or sale of any dividend or distribution of rights or
of the net proceeds of the sale thereof or the delivery of any Deposited
Securities, until such proof or other information is filed or such
certifications are executed, or such representations and warranties are made, or
such other documentation or information is provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction. The Depositary
shall, at the Company's request, provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval or
written representations and warranties which it receives from Holders and
Beneficial Owners, and (ii) any other information or documents which the Company
may reasonably request and which the Depositary shall request and receive from
any Holder or Beneficial Owner or any person presenting Shares for deposit or
Regulation S GDSs for cancellation, transfer or withdrawal.
A-8
(8) Fees and Charges of Depositary.
The Depositary shall charge the following fees:
(i) Issuance Fee: to any person depositing Shares or to whom Regulation
S GDSs are issued upon the deposit of Shares (excluding issuances
pursuant to paragraph (iv) below), a fee not in excess of U.S. $5.00
per 100 Regulation S GDSs (or portion thereof) so issued under the
terms of the Regulation S Deposit Agreement;
(ii) Cancellation Fee: to any person surrendering Regulation S GDSs for
cancellation and withdrawal of Deposited Securities, a fee not in
excess of U.S. $5.00 per 100 Regulation S GDSs (or portion thereof)
so surrendered;
(iii) Cash Distribution Fee: to any Holder of Regulation S GDSs, a fee not
in excess of U.S. $2.00 per 100 Regulation S GDSs (or portion
thereof) held for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other entitlements)
under the terms of the Regulation S Deposit Agreement;
(iv) Stock Distribution /Rights Exercise Fees: to any Holder of
Regulation S GDRs, a fee not in excess of U.S. $2.00 per 100
Regulation S GDSs (or portion thereof) held pursuant to stock
dividends or other free stock distributions or upon the exercise of
rights to purchase additional Regulation S GDSs;
(v) Annual Depositary Services Fee: to any Holder of Regulation S GDRs,
a fee not in excess of U.S. $2.00 per 100 Regulation S GDSs (or
fraction thereof) held on the last day of each calendar year, except
to the extent of any cash dividend fee(s) charged under paragraph
(iii) above during that calendar year; and
(vi) GDR Transfer Fee: to any person presenting a Regulation S GDR for
transfer, a fee not in excess of U.S. $1.50 per Regulation S GDR so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering Regulation S GDSs for cancellation and
withdrawal of Deposited Securities will be required to pay 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;
A-9
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Regulation S Deposit Agreement to
be at the expense of the person depositing or withdrawing Shares or
Holders and Beneficial Owners of Regulation S GDSs;
(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, Regulation S GDSs and Regulation S GDRs; and
(vi) the fees and expenses incurred by the Depositary, the Custodian or
any nominee in connection with the servicing or delivery of
Deposited Securities.
Any other charges and expenses of the Regulation S Depositary under the
Regulation S Deposit Agreement will be paid by the Company upon written
agreement between the Depositary and the Company. All fees and charges may, at
any time and from time to time, be changed by agreement between the Depositary
and Company but, in the case of fees and charges payable by Holders or
Beneficial Owners, only in the manner contemplated by paragraph (25) of this
Regulation S GDR. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. The charges and expenses of the
Custodian are for the sole account of the Depositary.
(9) Title to Regulation S GDRs. Subject to the limitations set forth
herein or in the Regulation S Deposit Agreement, it is a condition of this
Regulation S GDR and every successive Holder hereof by accepting or holding the
same consents and agrees, that when properly endorsed or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice), and upon compliance with the restrictions on
registration of transfer set forth in the Securities Act Legend, title to this
Regulation S GDR (and to the Regulation S GDSs evidenced hereby) is transferable
by delivery with the same effect as in the case of a certificated security under
the laws of the State of New York; provided that the Regulation S GDR 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 this Regulation S GDR as the absolute owner hereof
for the purpose of determining the person entitled to any distribution of
dividends or other distributions, to any notice provided for in the Regulation S
Deposit Agreement and for all other purposes. Neither the Depositary nor the
Company shall have any obligation or be subject to any liability under the
Regulation S Deposit Agreement to any holder of a Regulation S GDR or any
Beneficial Owner unless such holder is the Holder hereof, or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner's representative
is the Holder hereof.
A-10
(10) Validity of Regulation S GDR. This Regulation S GDR shall not be
entitled to any benefits under the Regulation S Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company unless this
Regulation S GDR has 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 Regulation S GDRs.
(11) [Intentionally Omitted]
(12) Ownership Restrictions. Notwithstanding any other provision in the
Regulation S Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding certain limits
under applicable law or under the Company's Articles of Incorporation. The
Company may also restrict, in such manner as it deems appropriate, transfers of
Regulation S GDSs where such transfer would result in the total number of Shares
represented by the Regulation S GDSs 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 owner 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 who holds Regulation S GDSs in excess of the
limitation set forth in the preceding sentence, including but not limited to,
the imposition of restrictions on the withdrawal of Shares represented by
Regulation S GDSs, the removal or limitation of voting rights or the mandatory
sale or disposition on behalf and for the account of a Holder or Beneficial
Owner of the Shares represented by the Regulation S GDSs held by such Holder or
Beneficial Owner in excess of such limitations (and the cancellation of such
Regulation S GDSs), if and to the extent such disposition is permitted by
applicable law. Each Holder and Beneficial Owner agrees to file reports to the
extent and in the form required by Korean law and regulations as may be in
effect from time to time. Nothing herein shall be interpreted as obligating the
Depositary or the Company to ensure compliance with the ownership restrictions
described in Section 3.05 of the Regulation S Deposit Agreement. In addition,
Korean laws and regulations may require beneficial owners of the voting share
capital of Korean companies, including the Beneficial Owners, to satisfy certain
reporting requirements or obtain regulatory approval in certain circumstances.
Beneficial Owners are solely responsible for complying with such requirements.
Neither the Depositary nor the Custodian, nor the Company, nor any of their
respective agents or affiliates shall be required to take any actions whatsoever
on behalf of such Beneficial Owners to comply with such reporting requirements
or regulatory approvals under Korean law.
(13) Compliance with Information Requests. The Company or the Depositary
may from time to time request Holders, former Holders, Beneficial Owners or
former Beneficial Owners to provide information as to the capacity in which they
hold or held Regulation S GDRs and regarding the identity of any other persons
then or previously interested in such Regulation S GDRs and the nature of such
interest and various other matters whether or not they are Holders and/or
Beneficial Owners at the time of such request. Each such Holder agrees to
provide any such information reasonably requested by the Company or the
Depositary pursuant to this paragraph whether or not still a Holder at the time
A-11
of such request. The Depositary agrees to use its reasonable efforts to comply
with written instructions received from the Company requesting that the
Depositary forward any such requests to such Holders and to the last known
address, if any, of such former Holders 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 Regulation S GDSs evidenced by
Regulation S GDRs; 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 former Holders.
(14) Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act and, accordingly, files
certain reports with the Commission. Such reports and other information, when so
filed, can be inspected and copied at the public reference facilities maintained
by the Commission at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇. Copies of such material may be obtained at prescribed
rates. Such reports and other information may also be inspected at the offices
of The New York Stock Exchange, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(15) [Intentionally Omitted].
(16) Distributions Upon Deposited Securities. Whenever the Depositary or
the Custodian shall receive any cash dividend or other cash distribution by the
Company on any Deposited Securities, the Depositary shall, if at the time of
receipt thereof any amounts received in Foreign Currency can in the judgment of
the Depositary (pursuant to Section 4.08 of the Regulation S Deposit Agreement)
be converted on a practical basis into Dollars transferable to the U.S.,
promptly convert, or cause to be converted, such dividend or distribution or
proceeds into Dollars (on the terms described in Section 4.08 of the Regulation
S Deposit Agreement), establish a record date in accordance with Section 4.09 of
the Regulation S Deposit Agreement (if applicable), and distribute promptly the
amount thus received (net of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto in proportion to the number of Regulation S GDSs representing
such Deposited Securities held by them respectively, subject to applicable
Korean laws and regulations and the provisions of Section 4.08 of the Regulation
S Deposit Agreement provided, however, that in the event that the Company, the
Custodian or the Depositary shall be required to withhold and does withhold from
any cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes or other governmental charges, the
amount distributed to the Holders in respect of Regulation S GDSs representing
such Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent, and any balance not so distributable shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders then outstanding. The Company or its agent or the
Depositary or its agent, as appropriate, will remit to the appropriate
governmental authority or agency in Korea or any other relevant jurisdiction all
amounts withheld and owing to such authority or agency. The Depositary will
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies.
A-12
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Custodian shall be required, subject to
applicable law, to accept such Shares for deposit pursuant to the Regulation S
Deposit Agreement and, upon receipt of confirmation of such deposit, the
Depositary shall (subject to Section 5.05 of the Regulation S Deposit Agreement)
either (i) distribute to the Holders of outstanding Regulation S GDRs entitled
thereto, in proportion to the number of Regulation S GDSs representing Deposited
Securities held by them respectively, additional Receipts for an aggregate
number of Regulation S GDSs representing the number of Shares received as such
dividend or free distribution, or (ii) reflect on the records of the Depositary
such increase in the aggregate number of Regulation S GDSs representing the
aggregate number of Shares so received, in either case, after deduction or upon
payment of the fees and expenses of the Depositary. If for any reason (including
any requirement that the Company or the Depositary withhold an amount on account
of taxes or other governmental charges or that such Shares must be registered
under the Securities Act in order to be distributed to Holders) the Depositary
deems such distribution not to be commercially feasible, the Depositary may,
after consultation with the Company, adopt such method as it may deem
commercially feasible for the purpose of effecting such distribution, including
the sale (at public or private sale) of the Shares thus received, or any part
thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash. In lieu of issuing Regulation S GDRs for fractional Regulation
S GDSs in any such case, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds
in dollars. To the extent that new Regulation S GDSs representing such Shares
are not created and such Shares are not sold or otherwise distributed in
accordance with this Section, each Regulation S GDSs shall thenceforth also
represent such additional Shares distributed upon the Deposited Securities
represented thereby.
Subject to applicable Korean law, whenever the Company intends to make a
distribution payable at the election of the holders of Shares in cash or in
additional Shares other than as provided in Sections 4.01 or 4.02 of the
Regulation S Deposit Agreement, the Company shall give timely notice thereof to
the Depositary stating whether or not it wishes such elective distribution to be
made available to Holders of Regulation S GDSs. Upon timely receipt of notice
indicating that the Company wishes such elective distribution to be made
available to Holders of Regulation S GDSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and commercially feasible to make such
elective distribution available to the Holders of Regulation S GDSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is commercially feasible and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.08 of the
Regulation S Deposit Agreement. If the above conditions are not satisfied, the
Depositary shall, to the extent permitted by law, distribute to the Holders, on
the basis of the same determination as is made in Korea in respect of the Shares
for which no election is made, either (X) cash upon the terms described in
Section 4.01 of the Regulation S Deposit Agreement or (Y) additional Regulation
S GDSs representing such additional Shares upon the terms described in Section
4.02 of the Regulation S Deposit Agreement (provided that in the case of (Y),
the Shares have been deposited pursuant to Section 4.02 of the Regulation S
Deposit Agreement). If the above conditions are satisfied, the Depositary shall
establish a record date (on the terms described in Section 4.09 of the
A-13
Regulation S Deposit Agreement) and establish procedures to enable Holders to
elect the receipt of the proposed distribution in cash or in additional
Regulation S GDSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. Nothing herein shall obligate the Depositary
to make available to Holders a method to receive the elective distribution in
Shares (rather than Regulation S GDSs) if the conditions set forth above are not
satisfied. There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive elective distributions on
the same terms and conditions as the holders of Deposited Securities.
Whenever the Company intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Company shall give
timely notice thereof to the Depositary stating whether or not it wishes such
rights to be made available to Holders of Regulation S GDSs. Upon timely receipt
of a notice indicating that the Company wishes such rights to be made available
to Holders of Regulation S GDSs, the Depositary shall consult with the Company
to determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and commercially feasible to make such rights available to
the Holders. The Depositary shall make such rights available to Holders only if
(i) the Company shall have timely requested that such rights be made available
to Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.09 of the Regulation S Deposit Agreement, and
(iii) the Depositary shall have determined that such distribution of rights is
commercially feasible. In the event all conditions set forth above are
satisfied, the Depositary shall establish a record date (upon the terms
described in Section 4.09 of the Regulation S Deposit Agreement) and establish
procedures to (x) distribute rights to purchase additional Regulation S GDSs (by
means of warrants or otherwise) in proportion to the number of Regulation S GDSs
held, (y) to enable the Holders (or holders of warrants) to exercise such rights
or warrants (upon payment of the subscription price and of the applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes),
and, if applicable, to enable Holders or holders of warrants, as the case may
be, to sell or transfer such rights or warrants, as the case may be, and (z) to
deliver Regulation S GDSs upon the valid exercise of such rights. The Company
shall assist the Depositary to the extent necessary in establishing such
procedures. Nothing herein shall obligate the Depositary to make available to
the Holders a method to exercise rights to subscribe for Shares (rather than
Regulation S GDSs) if the conditions set forth above are not satisfied. In the
event any of the conditions set forth above are not satisfied or if the Company
requests that the rights not be made available to Holders of Regulation S GDSs,
the Depositary shall proceed with the sale of the rights and subsequent
distribution of proceeds as contemplated below.
If (i) the Company does not timely request the Depositary to make the rights
available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.08 of the Regulation S Deposit Agreement or determines it
is not lawful or commercially feasible to make the rights available to Holders,
or (iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall, after consultation with the Company, determine
whether it is lawful and commercially feasible to sell such rights, in a
riskless principal capacity, at such places and upon such terms (including
public or private sale) as it may deem proper and commercially feasible. The
Depositary shall consult with the Company to determine whether such actions are
lawful and commercially feasible. The Depositary shall, upon such sale, convert
and distribute proceeds of such sale (net of applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes) upon the terms set forth
in Section 4.01 of the Regulation S Deposit Agreement.
A-14
If the Depositary is unable to make any rights available to Holders or to
arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse.
Neither the Depositary nor the Company shall be responsible for (i) any
failure to determine that it may be lawful or commercially feasible to make such
rights available to Holders in general or any Holders in particular that is not
due to its negligence, or (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything to the contrary in Section 4.04 of the Regulation
S Deposit Agreement, if registration (under the Securities Act or any other
applicable law) of the rights or the securities to which any rights relate may
be required in order for the Company to offer such rights or such securities to
Holders and to sell the securities represented by such rights, the Depositary
will not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities Act (or other applicable law)
covering such offering is in effect or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, in each case reasonably satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders are exempt from,
or do not require registration under, the provisions of the Securities Act or
any other applicable laws. If Korean law requires the Depositary to obtain
approval or license from a governmental agency to effect a sale of rights, the
Depositary may file an application for such approval or license as it may deem
desirable, in good faith. Such requirements may adversely affect (i) the ability
of the Depositary to dispose of such rights or (ii) the costs and expenses of
the Depositary associated with disposal of rights. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of Regulation S GDSs representing such Deposited Securities shall be
reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges. There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive or exercise rights on the same terms and conditions as
the holders of Shares or be able to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such rights.
Whenever the Depositary or the Custodian shall receive any distribution
other than cash, Shares or rights upon any Deposited Securities, the Depositary
shall, after consultation with the Company, cause the securities or property so
received to be distributed as promptly as practicable to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 of the Regulation S
▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, after deduction or upon payment of the fees and expenses of
the Depositary (which fees shall be in an amount equal to the fee for issuance
of GDSs pursuant to Section 2.05 of the Regulation S Deposit Agreement, which
would have been charged as a result of the deposit by, or on behalf of, Holders
of such securities (treating all such securities as if they were Shares) but
which securities are instead distributed by the Depositary to the Holders
entitled thereto), in proportion to the number of Regulation S GDSs representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem, after consultation with the Company, commercially feasible
for accomplishing such distribution subject to any applicable laws or
regulations of Korea; provided, however, that if in the opinion of the
Depositary it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including any requirement that the Company, the
Custodian or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act, in order to be distributed to Holders) the Depositary deems such
distribution not to be commercially feasible, the Depositary may, after
consultation with the Company, adopt such method as it may deem commercially
feasible for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale shall be distributed by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash; provided that any unsold balance of such securities or
property shall be distributed by the Depositary to the Holders entitled thereto
subject to any applicable laws or regulations of Korea, if such distribution is
commercially feasible without withholding for or on account of any taxes or
other governmental charges and without registration under the Securities Act, in
accordance with such commercially feasible method as the Depositary shall have
adopted.
(17) [Intentionally Omitted]
(18) 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 any Deposited Securities, or
whenever, for any reason, the Depositary causes a change in the number of Shares
that are represented by each Regulation S GDS or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date after consultation with the
Company (which shall be as near as practicable to the corresponding record date
for Shares set by the Company) for the determination of the Holders who shall be
entitled to receive such dividend, distribution or rights, or the net proceeds
of the sale thereof, or to receive notice of such meeting or to exercise the
rights of Holders with respect to such changed number of Shares. Subject to the
provisions of Sections 4.01 through 4.08 of the Regulation S Deposit Agreement
and to the other terms and conditions of the Regulation S Deposit Agreement, the
Holders at the close of business in New York on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof, to exercise the rights of Holders hereunder with respect to such
changed number of Shares in proportion to the number of Regulation S GDSs held
by them respectively or with respect to such other matter.
A-16
(19) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting of, or solicitation by the Company of consents or
proxies from, holders of Shares or other Deposited Securities, the Depositary
shall, if requested in writing by the Company, fix a record date as provided in
Section 4.09 of the Regulation S Deposit Agreement for determining the Holders
entitled to give instructions for the exercise of voting rights. The notice to
the Depositary that there will be a meeting of holders of Shares shall be
provided by the Company in English to the Depositary, with the Company using its
reasonable good faith efforts to deliver such notice to the Depositary in no
event less than twenty-one (21) days in advance of such meeting. The Company
shall transmit to the Depositary such notice, the agenda therefor as well as the
English translations thereof, which the Depositary shall mail to Holders as soon
as practicable after receipt of the same by the Depositary, together with: (a)
such information as is contained in such notice of meeting (or solicitation of
consent or proxy) received by the Depositary from the Company, (b) a statement
that the Holders of record at 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 number of Shares or
other Deposited Securities represented by their respective Regulation S GDSs
evidenced by their respective Regulation S GDRs and (c) a brief statement as to
the manner in which such instructions may be given. Voting instructions may be
given only in respect of a number of Regulation S GDSs representing an integral
number of Deposited Securities.
Upon the timely request of a Holder of Regulation S GDSs evidenced by
Regulation S GDRs on such record date received on or before the date established
by the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Articles of Incorporation of the Company, to vote or cause the Custodian to vote
the Shares represented by Regulation S GDSs evidenced by such Regulation S GDRs
in accordance with the instructions set forth in such request. Holders and
Beneficial Owners acknowledge, however, that the Company may not notify the
Depositary sufficiently in advance of the scheduled date of a meeting or
solicitation of consents or proxies to enable the Depositary to make a timely
mailing of such notices to the Holders of Regulation S GDRs, and that the
Holders of Regulation S GDRs may not receive such notices sufficiently in
advance of a meeting or solicitation of consents or proxies to give instructions
to the Depositary. The Depositary shall not attempt to exercise the right to
vote that attaches to the Shares other than in accordance with such
instructions. Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote or attempt to exercise the right to vote the Shares
or other Deposited Securities represented by Regulation S GDSs except pursuant
to and in accordance with the written voting instructions (including those
instructions in electronic form) from Holders or in accordance with the
provisions of Section 4.10 of the Regulation S Deposit Agreement.
To the extent the Depositary does not receive instructions from the
Holders on or prior to such date, the Depositary shall vote or cause to be voted
the Deposited Securities in the same manner and in the same proportion as the
holders of all other outstanding Shares vote their Shares.
A-17
Notwithstanding anything else contained in this Deposit Agreement or any
Regulation S GDR, 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. The Company agrees to take any and all actions reasonably necessary to
enable Holders and Beneficial Owners to exercise the voting rights accruing to
the Deposited Securities.
Subject to the applicable laws or rules of any securities exchange on
which the Deposited Securities are listed or traded, at least three (3) days
prior to the date of such meeting, the Depositary shall, if requested and at the
expense of the Company, deliver to the Company copies of all voting instructions
received from Holders of Receipts, if any, in accordance with which the
Depositary will vote, or cause to be voted, the Deposited Securities represented
by the Regulation S GDSs evidenced by such Regulation S GDRs at such meeting. A
Holder or Beneficial Owner of Regulation S GDSs shall not be entitled to give
any instructions with respect to voting rights associated with Regulation S GDSs
evidenced by Regulation S GDRs held by such Holder if and to the extent the
total number of Shares beneficially owned by such Holder or Beneficial Owner
exceeds any limit 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.
The Company acknowledges and agrees that the provisions of Section 5.09 of
the Regulation S Deposit Agreement shall apply to any liability or expense of
the Depositary which may arise out of or in connection with any action of the
Depositary or the Custodian in voting pursuant to Section 4.10 of the Regulation
S Deposit Agreement.
(20) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation of the Company or sale of assets by the Company, any securities
which shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities, and the Regulation S GDSs shall, subject to the terms of
the Regulation S Deposit Agreement and applicable laws, including any applicable
provisions of the Securities Act and the Securities Exchange Act, thenceforth
represent the new Deposited Securities so received, unless additional or new
Regulation S GDSs are created pursuant to the following sentence. Alternatively,
the Depositary may, with the Company's approval and pursuant to applicable law,
and shall, at the Company's request and pursuant to applicable law, and subject
to Section 5.08 in the Regulation S Deposit Agreement, create new or additional
Regulation S GDSs representing such new Deposited Securities and execute and
deliver additional Regulation S GDRs evidencing such Regulation S GDSs as in the
case of a stock dividend on the Shares, and may call for the surrender of
outstanding Regulation S GDRs to be exchanged for new Regulation S GDRs
specifically describing such new Deposited Securities.
Notwithstanding the foregoing, in the event that any security so received
may not be lawfully distributed to some or all Holders in the reasonable
judgment of the Depositary and its counsel after consultation with the Company,
the Depositary may, with the Company's approval, and shall, if the Company
requests, subject to receipt of an opinion of Company's counsel reasonably
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
A-18
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.01 of the
Regulation S Deposit Agreement. The Depositary shall not be responsible for (i)
any failure to determine that it may be lawful or commercially feasible to make
such securities available to Holders in general or to any Holder in particular
that is not due to its negligence, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities. Immediately upon the occurrence of any such change,
conversion or exchange covered by this Section in respect of the Deposited
Securities, the Depositary shall, subject to applicable law, give notice thereof
in writing, at the Company's expense, to all Holders.
(21) Reports; Inspection of Register. The Depositary shall make available
for inspection during business hours by Holders at its Principal New York Office
and at the office of each Custodian copies of the Regulation S Deposit
Agreement, any notices, reports or communications, including any proxy
soliciting materials, received from the Company which are both (a) received by
the Depositary or the Custodian or the nominee of either of them, as the holder
of the Deposited Securities, and (b) made generally available to the holders of
such Deposited Securities by the Company. The Depositary shall also send to
Holders, copies of such notices, reports and communications when furnished by
the Company to the Depositary pursuant to the Regulation S Deposit Agreement.
The Depositary shall keep books, if the book-entry settlement system is
available for Regulation S GDSs, at its Principal New York Office and if the
book-entry settlement system is not available for Regulation S GDSs, in its
Principal New York Office and its Principal London Office for the registration
of Regulation S GDRs and transfers of Regulation S GDRs, which office or
offices, as the case may be, shall be open at all reasonable times for
inspection by Holders and the Company; provided that such inspection shall not,
to the Depositary's knowledge, be for the purpose of communicating with Holders
in the interest of a business or object other than the business of the Company
or a matter related to the Regulation S Deposit Agreement, the Regulation S GDSs
or the Regulation S GDRs.
The Depositary may close the transfer books with respect to Regulation S
GDRs, upon notice to the Company, at any time or from time to time, when deemed
necessary or advisable by it in good faith in connection with the performance of
its duties under the Regulation S Deposit Agreement, or at the reasonable
request of the Company.
(22) Taxation. Notwithstanding any other provision of the Regulation S
Deposit Agreement, in the event that the Depositary determines, based on the
advice of counsel, that any distribution in property (including Shares or rights
to subscribe therefor or other securities) is subject to any tax or governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor or other securities) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or governmental
charges, including by public or private sale, and the Depositary shall
distribute the net proceeds of any such sale or the balance of any such property
A-19
after deduction of such taxes or governmental charges to the Holders entitled
thereto in proportion to the number of Regulation S GDSs held by them
respectively and the Depositary shall, if commercially feasible without
withholding for or on account of taxes or other governmental charges, without
registration of such Shares or other securities under the Securities Act and
otherwise in compliance with applicable law, distribute any unsold balance of
such property in accordance with the provisions of the Regulation S Deposit
Agreement.
The Depositary will, and will instruct the Custodian to, forward to the
Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agents to file the necessary tax
reports with governmental authorities or agencies. The Depositary, the Custodian
or the Company and its agents may file such reports as are necessary to reduce
or eliminate applicable taxes on dividends and on other distributions in respect
of Deposited Securities under applicable tax treaties or laws for the Holders
and Beneficial Owners. In accordance with instructions from the Company and to
the extent practicable, the Depositary or the Custodian will take reasonable
administrative actions to obtain tax refunds, reduced withholding of tax at
source on dividends and other benefits under applicable tax treaties or laws
with respect to dividends and other distributions on the Deposited Securities.
As a condition to receiving such benefits, Holders and Beneficial Owners of
Regulation S GDSs may be required from time to time, and in a timely manner, to
file such proof of taxpayer status, residence and beneficial ownership (as
applicable), to execute such certificates and to make such representations and
warranties, or to provide any other information or documents, as the Depositary
or the Custodian may deem necessary or proper to fulfill the Depositary's or the
Custodian's obligations under applicable law. The Depositary or the Custodian
will take reasonable administrative actions to provide Holders in a timely
manner the required forms or documents to allow Holders and Beneficial Owners to
obtain a reduced withholding of tax at source on dividends and other
distributions on the Deposited Securities, capital gains and other taxes, and
other benefits under applicable tax treaties or laws. The Depositary and the
Company shall have no obligation or liability to any person if any Holder or
Beneficial Owner fails to provide such information or if such information does
not reach relevant tax authorities in time for any Holder or Beneficial Owner to
obtain the benefit of any tax treaty. The Holders and Beneficial Owners shall
indemnify the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents and Affiliates (other than Affiliates that are
Holders or Beneficial Owners) 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 for such Holder or
Beneficial Owner pursuant to Section 4.12 of the Regulation S Deposit Agreement.
Notwithstanding any other provision of the Regulation S Deposit Agreement,
before making any distribution or other payment on any Deposited Securities, the
Company or its agent shall make such deductions (if any) which, by the laws of
Korea, the Company or its agent is required to make in respect of any income,
capital gains or other taxes and the Company or its agent may also deduct the
amount of any tax or governmental charges payable by the Company or its agent or
for which the Company or its agent might be made liable in respect of such
distribution or other payment or any document signed in connection therewith. In
making such deductions, the Company and its agent shall have no obligation to
any Holder or Beneficial Owner to apply a rate under any treaty or other
arrangement between Korea and the country within which such Holder or Beneficial
A-20
Owner is resident unless such Holder or Beneficial Owner has timely provided to
the Company or its agent evidence of the residency of such Holder or Beneficial
Owner that is accepted by the relevant tax authorities of Korea. If the Company
(or any of its agents) withholds from any distribution any amount on account of
taxes or governmental charges, or pays any other tax in respect of such
distribution (i.e., stamp duty tax, capital gains or other similar tax), the
Company shall (and shall cause such agent to) remit promptly to the Depositary
information about such taxes or governmental charges withheld or paid, and, if
so requested, the tax receipt (or other proof of payment to the applicable
governmental authority) therefor, in each case, in a form satisfactory to the
Depositary. The Depositary shall, to the extent required by U.S. law, report to
Holders any taxes withheld by it or the Custodian, and, if such information is
provided to it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary or the Custodian, as applicable.
Neither the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability. The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company other
than as specified below. The Depositary shall not incur any liability for any
tax consequences that may be incurred by Holders and Beneficial Owners on
account of their ownership of the Regulation S GDSs, including without
limitation, tax consequences resulting from the Company (or any of its
subsidiaries) being treated as a "Foreign Personal Holding Company," or as a
"Passive Foreign Investment Company" (in each case as defined in the U.S.
Internal Revenue Code and the regulations issued thereunder) or otherwise. Upon
request, the Depositary shall promptly provide (i) each Holder and (ii) each
person that was a Holder during the period to which the information applies, a
copy of such information provided to the Depositary.
(23) Liability of the Company and the Depositary. Neither the Depositary
nor the Company shall incur any liability to any Holder or Beneficial Owner if,
by reason of any provision of any present or future law of the United States,
Korea or any other country or jurisdiction, or of any other governmental
authority, 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, terrorism or war
or other circumstances beyond its control, the Depositary or the Company shall
be prevented, delayed or forbidden from, or subject to any civil or criminal
liability on account of, doing or performing any act or thing which by the terms
of the Regulation S Deposit Agreement it is provided shall be done or performed;
nor shall the Depositary or the Company incur any liability to any Holder or
Beneficial Owner by reason of any non-performance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of the Regulation S
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Regulation S Deposit Agreement. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability for the inability by a Holder or
Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Regulation S Deposit Agreement, made available to Holders
of Regulation S GDSs. No disclaimer of liability under the Securities Act is
intended by any provision of the Regulation S Deposit Agreement.
A-21
The Company assumes no obligation nor shall it be subject to any liability under
the Regulation S Deposit Agreement or the Regulation S GDRs to Holders,
Beneficial Owners or other persons, including for any consequential or punitive
damages for any breach of the terms of the Regulation S Deposit Agreement,
except that it agrees to act in good faith and without negligence in the
performance of its obligations set forth in the Regulation S Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any liability
under the Regulation S Deposit Agreement or the Regulation S GDRs to Holders,
Beneficial Owners of Regulation S GDRs or other persons (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), including for any consequential or punitive damages for any breach
of the terms of the Regulation S Deposit Agreement, except that it agrees to act
in good faith and without negligence in the performance of its duties set forth
in the Regulation S Deposit Agreement.
The Depositary and the Company undertake to perform such duties and only
such duties as are specifically set forth in the Regulation S Deposit Agreement,
and no implied covenants or obligations shall be read into the Regulation S
Deposit Agreement against the Depositary or the Company.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Regulation S GDRs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary. Neither the Depositary nor the Company shall be liable for any
action or inaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
or Beneficial Owner, or any other person believed by it in good faith to be
competent to give such advice or information. Each of the Depositary, its agents
and the Company may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
Neither the Depositary and its agents nor the Company shall be liable for
any failure by the Depositary to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote; provided, that any such action or omission is in good faith and
without negligence and in accordance with the terms of the Regulation S Deposit
Agreement. Neither the Depositary nor the Company shall incur any liability for
any failure to determine that any distribution or action may be lawful or
commercially feasible, for any investment risk associated with acquiring an
interest in the Deposited Securities, for any tax consequences that may result
from the ownership of Regulation S GDSs, Shares or Deposited Securities, for the
credit-worthiness of any third party or for allowing any rights to lapse upon
the terms of the Regulation S Deposit Agreement. The Depositary shall not incur
any liability for the content of any information submitted to it by the Company
for distribution to the Holders, for any inaccuracy of any translation thereof
(provided the Depositary was not involved in translating such information), for
the validity or worth of the Deposited Securities or for the failure or
timeliness of any notice from the Company. No disclaimer of liability under the
Securities Act is intended by any provision of the Regulation S Deposit
Agreement.
A-22
(24) Resignation and Removal of the Depositary; the Custodian. The
Depositary may at any time resign as Depositary under the Regulation S Deposit
Agreement by ninety (90) days' prior written notice of its election so to do
delivered to the Company, such resignation to take effect upon the appointment
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 ninety
(90) days' prior written notice of such removal, which shall become effective
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided. In case at any time the Depositary acting
under the Regulation S Deposit Agreement shall resign or be removed, the Company
shall use its best efforts 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 under the Regulation S Deposit Agreement, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor; 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, 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 and such other books and records maintained by such predecessor with
respect to its function as Depositary under the Regulation S Deposit Agreement.
Any such successor depositary shall at its own cost promptly mail notice of its
appointment to all 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.
(25) Amendment of Regulation S Deposit Agreement and Regulation S GDRs.
This Receipt, the Regulation S Deposit Agreement, the form of Regulation S GDR
attached to the Regulation S Deposit Agreement and any provisions of the
Regulation S Deposit Agreement may at any time and from time to time be amended
by agreement between the Company and the Depositary in any respect which they
may deem necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise prejudice any substantial
existing right of Holders shall not, however, become effective as to outstanding
Regulation S GDRs until the expiration of 30 days after notice of such amendment
shall have been given to the Holders of outstanding Regulation S GDRs in
accordance with Section 7.05 of the Regulation S Deposit Agreement. The parties
to the Regulation S Deposit Agreement agreed that any amendments or supplements
which (i) are reasonably necessary (as agreed by the Company and the Depositary)
in order for the Regulation S GDSs to be settled 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 materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment so becomes effective shall be deemed, by
A-23
continuing to hold such Regulation S GDR or to own any beneficial interest
therein, to consent and agree to such amendment and to be bound by the
Regulation S Deposit Agreement and Regulation S GDR as amended thereby. In no
event shall any amendment impair the right of the Holder to surrender such
Regulation S GDR and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, the Regulation S
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend the Regulation S Deposit Agreement and the Regulation S GDRs at any
time in accordance with such changed laws, rules or regulations. Such amendment
to the Regulation S Deposit Agreement and the Regulation S GDRs in such
circumstances may become effective before a notice of such amendment is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
(26) Termination of Regulation S Deposit Agreement. The Depositary shall,
at any time at the written direction of the Company, terminate the Regulation S
Deposit Agreement by providing notice of such termination to the Holders of all
Regulation S GDRs then outstanding at least thirty (30) days prior to the date
fixed in such notice for such termination. If (i) ninety (90) days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) ninety (90) days shall have expired
after the Company shall have delivered to the Depositary a written notice of the
removal of the Depositary, and in either case a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.04 of
the Regulation S Deposit Agreement, the Depositary may terminate the Regulation
S Deposit Agreement by providing notice of such termination to the Holders of
all Regulation S GDRs then outstanding at least thirty (30) days prior to the
date fixed for such termination. On and after the date of termination of the
Regulation S Deposit Agreement, the Holder of a Regulation S GDR will, upon
surrender of such Regulation S GDR at the Principal Office of the Depositary,
upon the payment of the charges of the Depositary for the surrender of
Regulation S GDRs referred to in Section 2.07 of the Regulation S Deposit
Agreement and subject to the conditions and restrictions therein set forth, and
upon payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Regulation S GDR. If any Regulation S GDRs shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Regulation S GDRs, shall suspend
the distribution of dividends to the Holders thereof, shall not accept deposits
of Shares (and shall instruct each Custodian to act accordingly), and shall not
give any further notices or perform any further acts under the Regulation S
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
property and rights and convert Deposited Securities into cash as provided in
this Regulation S 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 Regulation S GDRs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Regulation S GDR, any expenses for the account
of the Holder in accordance with the terms and conditions of the Regulation S
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it hereunder, without liability for interest,
A-24
for the pro rata benefit of the Holders of Regulation S GDRs which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Regulation S Deposit Agreement, except
to account for such net proceeds and other cash (after deducting, or charging,
as the case may be, in each case, the charges of the Depositary for the
surrender of a Regulation S GDR, any expenses for the account of the Holder in
accordance with the terms and conditions of the Regulation S Deposit Agreement
and any applicable taxes or governmental charges or assessments) and its
obligations under Section 5.09 of the Regulation S Deposit Agreement. Upon the
termination of the Regulation S Deposit Agreement, the Company shall be
discharged from all obligations under the Regulation S Deposit Agreement except
for its obligations to the Depositary under Sections 5.05, 5.09 and 7.06 of the
Regulation S Deposit Agreement.
(27) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph 27 and of the Regulation S Deposit
Agreement, Subject to the further terms and provisions of this Sections 5.10 and
3.05 of the Regulation S Deposit Agreement and applicable Korean law, the
Depositary, its Affiliates and their agents may own and deal in any class of
securities of the Company and its Affiliates and in Regulation S GDSs. The
Depositary may cause the issuance of Regulation S GDSs against evidence of
rights to receive Shares from the Company, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof. In its capacity as Depositary, the Depositary
shall not lend Shares or Regulation S GDSs; provided, however, that to the
extent permitted by Korean law, the Depositary reserves the right to (i) cause
the issuance of Regulation S GDSs prior to the receipt of Shares pursuant to
Section 2.03 and (ii) deliver Shares prior to the receipt and cancellation of
Regulation S GDSs pursuant to Section 2.07, including Regulation S GDSs which
were issued under (i) above but for which Shares may not have been received;
further provided, however, that the Depositary shall not issue Regulation S GDSs
prior to the receipt of Shares in the case of the deposit of Shares by the
Company in connection with an offering of Regulation S GDSs or pursuant to
Sections 4.02 or 4.04 of the Regulation S Deposit Agreement, unless requested by
the Company and to the extent permitted by applicable Korean law. The Depositary
may receive Regulation S GDSs in lieu of Shares under (i) above and receive
Shares in lieu of Regulation S GDSs under (ii) above. Each such transaction
shall be (a) subject to a written agreement whereby the person or entity to whom
Regulation S GDSs or Shares are to be delivered or its customer (the
"Applicant") (w) represents that at the time of the transaction the Applicant or
its customer owns the Shares or Regulation S GDSs that are to be delivered by
the Applicant under such transaction, (x) agrees to indicate the Depositary as
owner of such Shares or Regulation S GDSs in its records and to hold such Shares
or Regulation S GDSs in trust for the Depositary until such Shares or Regulation
S GDSs are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or Regulation S GDSs, and (z) agrees to any additional restrictions or
requirements that the Depositary deems reasonably appropriate, (b) at all times
fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate, (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 Regulation S GDSs and Shares
involved in such transactions at any one time to thirty percent (30%) of the
A-25
Regulation S GDSs outstanding (without giving effect to Regulation S GDSs
outstanding under (i) above); provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate; further, provided, however, that the Depositary shall not enter
into any transaction under (i) or (ii) above that will have the effect of
exceeding the thirty percent (30%) limitation without providing prior notice to
the Company of the Depositary's entering into of any such transaction.
The Depositary may also set limits with respect to the number of
Regulation S GDSs and Shares involved in transactions under (i) or (ii) above
with any one person on a case-by-case basis as it deems appropriate; provided,
however, that the Depositary shall not enter into any transaction under (i) or
(ii) above that will have the effect of exceeding the thirty percent (30%)
limitation without providing prior notice to the Company of the Depositary's
entering into of any such transaction. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Dated: _______________
CITIBANK, N.A.,
as Depositary
By: ________________________
Vice President
The address of the Principal New York Office of the Depositary is ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
A-26
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s)
and transfer(s) unto [___________] whose taxpayer identification number is
[___________] and whose address including postal zip code is
[_________________________________] the within Regulation S GDR and all rights
thereunder, hereby irrevocably constituting and appointing attorney-in-fact to
transfer said Regulation S GDR on the books of the Depositary with full power of
substitution in the premises.
In connection with the transfer of this Regulation S GDR during the
Restricted Period, the undersigned Holder certifies that:
(Check one)
|_| (a) This Regulation S GDR is being transferred to a person other than a
U.S. Person (as defined in Regulation S under the Securities Act
("Regulation S")) in an offshore transaction in accordance with Rule
903 or Rule 904 of Regulation S.
|_| (b) This Regulation S GDR is being transferred pursuant to an exemption
from registration provided by Rule 144 under the Securities Act.
|_| (c) This Regulation S GDR is being transferred pursuant to an effective
registration statement under the Securities Act.
If none of the boxes above is checked, the Depositary shall not be
obligated to register this Regulation S GDR in the name of any person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Regulation S Deposit Agreement shall
have been satisfied.
Dated: __________ Name: ___________________________
By:
Title:
NOTICE: The signature of the
Holder to this assignment must
correspond with the name as
written upon the within instrument
in every particular, without
alteration or enlargement or any
change whatsoever.
SIGNATURE GUARANTEED
A-27
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 Regulation S Deposit Agreement
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering Regulation S GDSs for cancellation agree to
pay the following fees of the Depositary:
---------------------------------------- ------------------------------------- -------------------------------------
Service Rate By Whom Paid
---------------------------------------- ------------------------------------- -------------------------------------
(1) Issuance of Regulation S GDSs Up to U.S. $5.00 per 100 Regulation Person depositing Shares or person
upon deposit of Shares S GDSs (or fraction thereof) issued. receiving Regulation S GDSs.
(excluding issuances as a
result of distributions
described in paragraph (4)
below).
---------------------------------------- ------------------------------------- -------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 Regulation Person surrendering Regulation S
Securities against surrender S GDSs (or fraction thereof) GDSs for the purpose of withdrawal
of Regulation S GDSs. surrendered. of Deposited Securities or person
to whom Deposited Securities are
delivered.
---------------------------------------- ------------------------------------- -------------------------------------
(3) Distribution of cash Up to U.S. $2.00 per 100 Regulation Person to whom distribution is made.
dividends or other cash S GDSs (or fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
---------------------------------------- ------------------------------------- -------------------------------------
(4) Distribution of Regulation S Up to U.S. $2.00 per 100 Regulation Person to whom distribution is made.
GDSs pursuant to (i) stock S GDSs (or fraction thereof) held.
dividends or other free
stock distributions, or
(ii) exercise of rights to
purchase additional
Regulation S GDSs.
---------------------------------------- ------------------------------------- -------------------------------------
(5) Depositary Services. Up to U.S. $2.00 per 100 Regulation Person holding Regulation S GDSs on
S GDSs (or fraction thereof) held last day of any calendar year.
as of the last day of each calendar
year, except to the extent of any
cash dividend fee(s) charged under
paragraph (3) above during the
applicable calendar year.
---------------------------------------- ------------------------------------- -------------------------------------
(6) Transfer of Regulation S GDRs. U.S. $1.50 per certificate Person presenting certificate for
presented for transfer. transfer.
---------------------------------------- ------------------------------------- -------------------------------------
B-1
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering Regulation S GDSs 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;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Regulation S Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders and
Beneficial Owners of Regulation S GDSs;
(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, Regulation S GDSs
and Regulation S GDRs; and
(vi) the fees and expenses incurred by the Depositary, the Custodian or any
nominee in connection with the servicing or delivery of Deposited
Securities.
▇-▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇]
▇-▇
▇▇▇▇▇▇▇ ▇-▇
Certification and Agreement of Persons Acquiring
Regulation S GDSs Upon Deposit of Shares
Pursuant to Section 2.03 of the
Regulation S Deposit Agreement
Citibank, N.A.
ADS Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Kookmin Bank
We refer to the Regulation S Deposit Agreement, dated as of June 21,
2005 (the "Deposit Agreement"), among Kookmin Bank (the "Company"), CITIBANK,
N.A., as Depositary, and Holders and Beneficial Owners from time to time of
Regulation S Global Depositary Shares (the "GDSs") evidenced by Regulation S
Global Depositary Receipts (the "Receipts") issued thereunder. Capitalized terms
used but not defined herein shall have the meanings given them in the Deposit
Agreement.
1. This Certification and Agreement is furnished in connection with
the deposit of Shares and issuance of GDSs pursuant to the Deposit Agreement.
2. We acknowledge (or if we are a broker-dealer, our customer has
confirmed to us that it acknowledges) that the Receipts, the GDSs evidenced
thereby and the Shares represented thereby have not been and will not be
registered under the Securities Act of 1933 (the "Securities Act") or with any
securities regulatory authority in any state or jurisdiction of the United
States.
3. We certify that either:
(a) We are, or at the time the Shares are deposited and at the time
the GDSs are issued will be, the beneficial owner of the Shares and of the GDSs,
and:
(i) we are not a U.S. person (as defined in Regulation S under the
Securities Act) and we are located outside the United States (within the
meaning of Regulation S under the Securities Act) and acquired, or have
agreed to acquire and will have acquired, the Shares to be deposited
outside the United States (within the meaning of Regulation S under the
Securities Act),
(ii) we are not an Affiliate (as defined in Regulation C under the
Securities Act) of the Company or a person acting on behalf of such an
Affiliate, and
(iii) we are not in the business of buying and selling securities
or, if we are in such business, we did not acquire the securities to be
deposited from the Company or any affiliate thereof in the initial
distribution of GDSs and Shares.
D-1-1
OR
(b) We are a broker-dealer acting on behalf of our customer; our
customer has confirmed to us that it is, or at the time the Shares are deposited
and at the time the GDSs are issued will be, the beneficial owner of the Shares
and of the GDSs, and:
(i) it is not a U.S. person and it is located outside the United
States and acquired, or has agreed to acquire and will have acquired, the
Shares to be deposited outside the United States,
(ii) it is not an Affiliate of the Company or a person acting on
behalf of such an Affiliate, and
(iii) it is not in the business of buying and selling securities or,
if it is in such business, it did not acquire the securities to be
deposited from the Company or any affiliate thereof in the initial
distribution of GDSs and Shares.
4. We agree (or if we are a broker-dealer, our customer has
confirmed to us that it agrees) that prior to expiration of forty (40) days
after the later of the commencement of the offering of the GDSs and the Shares
on behalf of the Company and the last closing in respect of such offering (the
"restricted period"), we (or it) will not offer, sell, pledge or otherwise
transfer the Regulation S GDSs evidenced thereby or the Shares represented
thereby except outside the United States to a person other than a U.S. Person
(as defined in Regulation S) in accordance with Regulation S under the Act and
in accordance with any applicable securities laws of any state of the United
States.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: ___________________________
Title:
Date: ____________________
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▇▇▇▇▇▇▇ ▇-▇
Certification and Agreement of Persons Surrendering
Regulation S GDSs for the Purpose of Withdrawal
of Deposited Securities Pursuant to Section 2.07 of the
Regulation S Deposit Agreement(1)
Citibank, N.A.
Depositary Receipts Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Kookmin Bank
We refer to the Regulation S Deposit Agreement, dated as of June 21, 2005
(the "Deposit Agreement"), among Kookmin Bank (the "Company"), CITIBANK, N.A.,
as Depositary thereunder, and Holders and Beneficial Owners from time to time of
Regulation S Global Depositary Shares evidenced by Regulation S Global
Depositary Receipts (the "Receipts") issued thereunder. Capitalized terms used
but not defined herein shall have the meanings given them in the Deposit
Agreement.
1. We are surrendering GDS(s) in accordance with the terms of the
Deposit Agreement through Euroclear and Clearstream in accordance with the
Deposit Agreement for the purpose of withdrawal of the Shares represented by the
GDSs pursuant to Section 2.07 of the Deposit Agreement.
2. We acknowledge (or if we are a broker-dealer, our customer has
confirmed to us that it acknowledges) that the Receipts, the GDSs evidenced
thereby and the Shares represented thereby have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or with any securities regulatory authority in any state or jurisdiction in the
United States.
(a) We certify that we are not a U.S. person (as defined in
Regulation S under the Securities Act) and we are located outside the United
States (within the meaning of Regulation S under the Securities Act), and
either:
(i) we have sold or otherwise transferred, or agreed to sell or
otherwise transfer and at or prior to the time of withdrawal will have
sold or otherwise transferred, the GDSs or the Shares to persons other
than U.S. Persons (as such term is defined in Regulation S under the
Securities Act) in accordance with Regulation S under the Securities Act,
and we are, or prior to such sale or other transfer we were, the
beneficial owner of the GDSs, or
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(1) To be used prior to the expiration of forty (40) days after the later of
the commencement of the initial offering of Regulation S GDSs on behalf of
the Issuer and the related closing.
D-2-1
(ii) we will be the beneficial owner of the Shares upon withdrawal,
and, accordingly, we agree that, prior to the expiration of forty (40)
days after the later of the commencement of the offering of the GDSs and
Shares on behalf of the Company and the last closing in respect of such
offering, we will not (x) offer, sell, pledge or otherwise transfer the
Shares except to a person other than a U.S. Person (as such term is
defined in Regulation S under the Securities Act) in accordance with
Regulation S under the Securities Act; or (y) deposit the Shares into any
depositary facility in the United States that is not subject to the
limitations contemplated in the Deposit Agreement.
3. If we are a broker-dealer, we further certify that we are acting
for the account of our customer and that our customer has confirmed the accuracy
of the representations contained in paragraph 2 hereof that are applicable to it
and, if paragraph 2(a)(ii) is applicable to our customer, has confirmed that it
will comply with the agreements set forth in paragraph 2(a)(ii).
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: ___________________________
Title:
Date: ____________________
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
Certification and Agreement of Persons Surrendering
Regulation S GDSs for the Purpose of Withdrawal
of Deposited Securities Pursuant to Section 2.07 of the
Regulation S Deposit Agreement(1)
Citibank, N.A.
Depositary Receipts Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Kookmin Bank
We refer to the Regulation S Deposit Agreement, dated as of June 21, 2005
(the "Deposit Agreement"), among Kookmin Bank (the "Company"), CITIBANK, N.A.,
as Depositary thereunder, and Holders and Beneficial Owners from time to time of
Regulation S Global Depositary Shares (the "GDSs") evidenced by Regulation S
Global Depositary Receipts (the "Receipts") issued thereunder. Capitalized terms
used but not defined herein shall have the meanings given them in the Deposit
Agreement.
1. We are surrendering GDSs in accordance with the terms of the Deposit
Agreement through Euroclear and Clearstream in accordance with the Deposit
Agreement for the purpose of withdrawal of the Shares represented by the GDSs
pursuant to Section 2.07 of the Deposit Agreement.
2. We acknowledge (or if we are a broker-dealer, our customer has
confirmed to us that it acknowledges) that the Receipts, the GDSs evidenced
thereby and the Shares represented thereby have not been and will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or with any securities regulatory authority in any state or jurisdiction in the
United States.
3. We certify that either:
(a) We acquired the GDSs, directly or indirectly, prior to the most
recent offer and sale of GDSs by the Company (or any of its Affiliates)
OR
(b) We acquired the GDSs in, or after the closing of, the most
recent offer and sale of GDSs by the Company (or any of its Affiliates) and as a
result, we certify that:
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(1) To be used prior to the expiration of forty (40) days after the later of
the commencement of any subsequent offering of Regulation S GDSs on behalf
of the Issuer and the related closing.
D-3-1
We are not a U.S. person (as defined in Regulation S under the
Securities Act) and we are located outside the United States (within the meaning
of Regulation S under the Securities Act), and either:
(i) we have sold or otherwise transferred, or agreed to sell or
otherwise transfer and at or prior to the time of withdrawal will have
sold or otherwise transferred, the GDSs or the Shares to persons other
than U.S. Persons (as such term is defined in Regulation S under the
Securities Act) in accordance with Regulation S under the Securities Act,
and we are, or prior to such sale or other transfer we were, the
beneficial owner of the GDSs, or
(ii) we will be the beneficial owner of the Shares upon withdrawal,
and, accordingly, we agree that, prior to the expiration of forty (40)
days after the later of the commencement of the offering of the GDSs and
Shares on behalf of the Company and the last closing in respect of such
offering, we will not (x) offer, sell, pledge or otherwise transfer the
Shares except to a person other than a U.S. Person (as such term is
defined in Regulation S under the Securities Act) in accordance with
Regulation S under the Securities Act; or (y) deposit the Shares into any
depositary facility in the United States that is not subject to the
limitations contemplated in the Deposit Agreement.
4. If we are a broker-dealer, we further certify that we are acting for
the account of our customer and that our customer has confirmed the accuracy of
the representations contained in paragraph 3 hereof that are applicable to it
and, if paragraph 3 (b)(ii) is applicable to our customer, has confirmed that it
will comply with the agreements set forth in paragraph 3 (b)(ii).
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: ___________________________
Title:
Date: ____________________
D-3-2