Filed pursuant to Rule 424(b)(3)
Registration Statement on Form F-6
Registration No. 333-147661
(FORM OF FACE OF ADR)
Number _______________ CUSIP Number _________
AMERICAN DEPOSITARY SHARES
(EVERY TWO (2) AMERICAN
DEPOSITARY SHARES REPRESENTING
ONE (1) SHARE)
AMERICAN DEPOSITARY RECEIPT
for
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES OF COMMON STOCK,
PAR VALUE 5,000 WON PER SHARE OF
LG DISPLAY CO., LTD.
(a corporation established under the laws of The Republic of Korea)
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 [____________________] is the owner of
[_______________] American Depositary Shares indicated on the records of the
Depositary, representing deposited shares of the common stock, par value 5,000
Won per share, or evidence of rights to receive such shares ("Shares"), of LG
Display Co., Ltd., a corporation established under the laws of The Republic of
Korea (the "Company"). At the date of the Deposit Agreement (as hereinafter
defined), every two (2) American Depositary Shares represent one (1) Share
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Korea Securities Depository. The number of
Shares represented by each ADS is subject to change as provided in Article IV of
the Deposit Agreement.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called "ADRs" or "Receipts"), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement dated as of July 22,
2004 (the "Deposit Agreement"), among the Company, the Depositary and all
Holders and Beneficial Owners from time to time of American Depositary Shares
evidenced by Receipts issued thereunder, each of whom by accepting a Receipt or
acquiring any beneficial interest therein agrees to become a party thereto and
becomes bound by all the terms and provisions thereof. The 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 Shares, other securities, property and
cash are herein called "Deposited Securities"). Copies of the Deposit Agreement
are on file at the Principal Office of the Depositary and at the principal
office of the Custodian. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. Terms defined in the Deposit Agreement and not
otherwise defined herein have the same defined meanings set forth in the Deposit
Agreement.
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(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this Receipt for the
purpose of withdrawal of the Deposited Securities represented by the ADSs
evidenced by this Receipt, and upon payment of the fee of the Depositary for the
surrender and cancellation of this Receipt (as set forth in paragraph (7) of
this Receipt) and payment of all taxes and governmental charges payable in
connection with such surrender, and subject to the terms and conditions of the
Deposit Agreement, any applicable ownership restrictions and applicable laws and
regulations of Korea, the Holder hereof shall be entitled to physical delivery,
to him or upon his order, or to electronic delivery or book-entry transfer to an
account in Korea designated by such Holder, of the Deposited Securities at the
time represented by the ADSs evidenced by this Receipt or constituting such
beneficial interest, as the case may be; provided, that such withdrawals of
Shares constituting Deposited Securities are not permitted unless and until such
Shares are listed on the Korea Stock Exchange (such Shares, the "Listed
Shares"). The parties hereto acknowledge and agree that (i) the Depositary will
deliver Shares represented by ADSs presented for cancellation under this
paragraph (2) and pursuant to Section 2.05 of the Deposit Agreement only to the
extent of the number of Listed Shares then deposited with the Custodian, (ii)
the Depositary will process presentations of ADSs for withdrawal of Listed
Shares under this paragraph (2) and Section 2.05 of the Deposit Agreement on a
first come, first served basis, (iii) the Depositary will complete requests for
cancellation of ADSs and withdrawal of the Shares represented thereby only to
the extent of the number of Listed Shares at such time deposited with the
Custodian, (iv) the Depositary will refuse to complete a request for
cancellation of ADSs and withdrawal of Shares to the extent the number of Shares
requested for withdrawal exceeds the number of Listed Shares at such time
deposited with the Custodian and (v) the Depositary reserves the right to
suspend withdrawals of Shares under this paragraph (2) and Section 2.05 of the
Deposit Agreement until such time as Listed Shares are deposited with the
Custodian. The Company agrees to deliver to the Custodian written confirmation
of the number of Listed Shares deposited with the Custodian under this Deposit
Agreement promptly upon receipt of confirmation of listing of such Shares from
the Korea Stock Exchange. Subject to applicable Korean laws and regulations,
physical delivery of such Deposited Securities may be made by the delivery of
certificates to an agent of the Holder of such receipt in Korea or to such
Holder or as ordered by him. Physical or electronic delivery or book-entry
transfer of Deposited Securities shall be made, as hereinafter provided, without
unreasonable delay.
A Receipt surrendered or written instructions received for such purposes
may be required by the Depositary to be properly endorsed in blank or
accompanied by properly executed instruments of transfer in blank. The person
requesting withdrawal of Deposited Securities for delivery to someone other than
the Holder shall, if requested by the Depositary, deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order subject to applicable Korean laws and regulations.
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Upon the receipt of complete written instructions, the Depositary shall
direct the Custodian to deliver the Deposited Securities at the principal office
of such Custodian, subject to the terms and conditions of the Deposit Agreement,
to or upon the written order of the person or persons designated in such written
instructions.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be delivered in accordance with the terms
of the Deposit Agreement, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) Transfers, Split-ups and Combinations. Subject to the limitations
stated herein and in the Deposit Agreement, this Receipt is transferable,
without unreasonable delay, on the books of the Registrar by the Holder hereof
in person or by duly authorized attorney, upon surrender of this Receipt
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 an ADR if such registration
would cause the total number of Shares represented by ADSs evidenced by ADRs
held by any Holder to exceed the number of Shares as determined by the Company
in order to comply with any applicable ownership restrictions and notified in
writing, from time to time, to the Registrar. This Receipt may be split into
other Receipts or may be combined with other Receipts into one Receipt,
representing the same class and aggregate number of ADSs and registered in the
name of the same Holder as the Receipt or Receipts surrendered. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require from the presenter of a
Receipt or the depositor of Shares 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 applicable fees as provided in
paragraph (7) of this Receipt, and may, but is not obligated to, require the
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 Deposit Agreement, including but not
limited to, in the case of Receipts, a signature guarantee in accordance with
industry practice, and may also require compliance with any laws or governmental
regulations relating to depositary receipts in general or to the withdrawal of
Deposited Securities.
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(4) Certain Limitations. The Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any ADR or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.08 of
the Deposit Agreement, the delivery of any Deposited Securities until it has
received 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 ADSs and Deposited Securities, compliance with
applicable laws, the terms of the Deposit Agreement or this Receipt and the
provisions of, or governing, the Deposited Securities, 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 Deposit Agreement and this
Receipt. The delivery of Receipts against deposits of Shares generally or of
particular Shares may be suspended or withheld, or the registration of transfer
of Receipts in particular instances may be refused, or the registration of
transfer generally may be suspended 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 the 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 in accordance with the Deposit Agreement; provided,
however, the surrender of outstanding Receipts and withdrawal of Deposited
Securities represented thereby may be suspended, but only as required in
connection with (i) temporary delays caused by closing the transfer books of the
Depositary or the issuer of any Deposited Securities (or the appointed agent or
agents for such issuer for the transfer and registration of such Deposited
Securities) in connection with voting at a shareholders' meeting or the payment
of dividends, (ii) payment of fees, taxes and similar charges, (iii) compliance
with any United States or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities or (iv) other
circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time). Without limitation to the foregoing, the Depositary shall not
knowingly accept for deposit under the Deposit Agreement any Shares required to
be registered under the Securities Act of 1933 prior to being offered and sold
publicly in the United States unless a registration statement is in effect as to
such Shares.
(5) Liability of Holders and Beneficial Owners For Taxes and Other
Charges. If any Korean or other tax or other governmental charge shall become
payable with respect hereto or to any Deposited Securities represented by the
ADSs evidenced hereby, such tax or other governmental charge shall be payable by
the Holder hereof to the Depositary and any Beneficial Owners hereof 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 any
part of this Receipt or to execute and deliver any new Receipt or Receipts or to
permit any deposit or (subject to Section 7.08 of the Deposit Agreement) any
withdrawal of Deposited Securities represented by the ADSs evidenced hereby
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until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the ADSs evidenced hereby, 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
Owners hereof remaining liable for any deficiency.
Dated:
CITIBANK, N.A.,
as Depositary
By:
-------------------------------------
Vice President
The address of the Principal Office of the Depositary is 388 Greenwich
Street, New York, New York 10013.
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(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL
PROVISIONS OF THE DEPOSIT AGREEMENT
(6) Warranties by Depositor. Each person depositing Shares under the
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, non-assessable 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 are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.10 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(7) Charges of Depositary. The Depositary shall charge the following fees:
(i) Issuance Fee: to any person depositing Shares or to any person
receiving ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit Agreement
(excluding issuances pursuant to paragraphs (iii)(b) and (vi)
below);
(ii) Cancellation Fee: to any person surrendering ADSs for purpose of
withdrawal of Deposited Securities or to whom Deposited Securities
are delivered, a fee not in excess of U.S. $5.00 per 100 ADSs (or
portion thereof) so surrendered;
(iii) Dividend Fee: No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends, so long as the
charging of such fee is prohibited by the exchange upon which the
ADSs are listed. If charging of such fees is not prohibited, the
fees specified in (iv) below shall be payable;
(iv) Cash Distribution Fee: to any person to whom a distribution is made,
a fee not in excess of U.S. $2.00 per 100 ADSs (or portion thereof)
held for the distribution of (a) cash proceeds (i.e., upon the sale
of rights and other entitlements) or (b) free shares in the form of
ADSs (not constituting a stock dividend);
(v) Rights Exercise Fee: to any person whom exercises such rights, a fee
not in excess of U.S. $2.00 per 100 ADSs (or portion thereof) held
upon the exercise of rights to purchase additional ADSs; and
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(vi) Other Distribution Fee: to any person to whom a distribution is
made, a fee not in excess of U.S. $5.00 per unit of 100 securities
(or fraction thereof) distributed for distribution of securities
other than ADSs or rights to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs 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;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the Custodian, or
any nominee in connection with the delivery or servicing of
Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon 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 (21) of this Receipt and the terms of the Deposit
Agreement. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian or
any agent of the Depositary are for the sole account of the Depositary.
(8) Title to Receipts. Subject to the limitations set forth herein or in
the Deposit Agreement, when this Receipt is properly endorsed or accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard industry practice), title to this Receipt (and to each ADS
evidenced hereby) shall be transferable by delivery as in the case of a
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certificated security under the laws of the State of New York. Notwithstanding
any notice to the contrary, the Depositary and the Company may deem and treat
the Holder of this Receipt as the absolute owner of such Receipt for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under the Deposit Agreement or this Receipt to any
holder of a Receipt or any Beneficial Owner unless such holder is the Holder of
such Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner, or the Beneficial Owner's
representative, is the Holder registered on the books of the Depositary.
(9) Validity of Receipt. This Receipt and the ADS(s) evidenced thereby
shall not be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose, unless this Receipt shall have been dated, signed,
countersigned and registered, as provided in Section 2.01 of the Deposit
Agreement. Receipts bearing the manual or facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly-authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such Receipt
by the Depositary.
(10) Disclosure of Beneficial Ownership and Ownership Restrictions. 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
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts 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 the Deposit Agreement
whether or not still a Holder at the time of such request. 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. Nothing herein or in the Deposit Agreement shall be
interpreted as obligating the Depositary or the Company to ensure compliance
with the ownership restrictions described herein or in Section 3.05 of the
Deposit Agreement.
Each Holder and Beneficial Owner agrees to file reports to the extent
required by Korean laws and regulations as indicated by the Company from time to
time. In addition, Korean laws and regulations may require beneficial owners of
the voting share capital of Korean companies, including Beneficial Owners of
ADSs, 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 any of
their respective agents or affiliates shall be required to take any actions
whatsoever on behalf of such Beneficial Owners.
(11) Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 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, 100 F Street, N.E., Washington
D.C. 20549. 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., 11 Wall Street, New York, New York 10005.
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(12) Dividends and Distributions; Rights. Whenever the Custodian or the
Depositary shall receive any cash dividend or other cash distribution by the
Company on or with respect to any Deposited Securities, the Depositary shall,
subject to applicable Korean laws and regulations and the provisions of Section
4.07 of the Deposit Agreement, cause the conversion as promptly as practicable
of such dividend or distribution into United States dollars, establish a record
date in accordance with Section 4.08 of the Deposit Agreement (if applicable)
and promptly distribute such amount to the Holders entitled thereto in
proportion to the number of ADSs representing such Deposited Securities held by
them respectively, after deduction or upon payment of the fees and expenses of
the Depositary; 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 ADSs 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.
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 4.08 of the Deposit
Agreement, after deduction or upon payment of the fees and expenses of the
Depositary, in proportion to the number of ADSs 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 of 1933 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 of 1933, in accordance with such
commercially feasible method as the Depositary shall have adopted.
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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 Deposit
Agreement and, upon receipt of confirmation of such deposit, the Depositary
shall (subject to Section 5.06 of the Deposit Agreement) either (i) distribute
to the Holders of outstanding Receipts entitled thereto, in proportion to the
number of ADSs representing Deposited Securities held by them respectively,
additional Receipts for an aggregate number of ADSs 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 ADSs
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 of 1933 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 Receipts for fractional ADSs
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 ADSs representing such Shares are not created and such
Shares are not sold or otherwise distributed in accordance with this paragraph
and the Deposit Agreement, each ADS 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 4.02 or 4.04 of the
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 ADSs. Upon timely receipt of notice indicating that
the Company wishes such elective distribution to be made available to Holders of
ADSs, 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 ADSs. 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 5.09 of the 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 4.02 of the Deposit Agreement or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.04 of
the Deposit Agreement (provided that in the case of (Y), the Shares have been
deposited pursuant to Section 4.04 of the Deposit Agreement). If the above
conditions are satisfied, the Depositary shall establish a record date (on the
terms described in Section 4.08 of the Deposit Agreement) and establish
procedures to enable Holders to elect the receipt of the proposed distribution
in cash or in additional ADSs. The Company shall assist the Depositary in
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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 ADSs) 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 Shares.
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 ADSs. Upon timely receipt of a notice
indicating that the Company wishes such rights to be made available to Holders
of ADSs, 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 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 4.08 of the Deposit
Agreement) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise) in proportion to the number
of ADSs 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 ADSs 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
ADSs) 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 ADSs, 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 5.09 of the 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 4.02 of the Deposit Agreement.
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If at the time of the offering of any rights, the Depositary and the
Company determine that it is lawful and commercially feasible to make such
rights available to all or certain Holders by means of warrants or otherwise,
the Depositary shall, upon the request by the Company, after deduction or upon
payment of the fees and expenses of the Depositary, distribute warrants or other
instruments therefor in such form as it may determine to such Holders entitled
thereto, in proportion to the number of ADSs representing such Deposited
Securities held by them respectively, or employ such other method as it may deem
commercially feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders or the sale or resale of securities obtainable upon
exercise of such rights by such Holders.
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 Holder 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 4.06 of the Deposit
Agreement, if registration (under the Securities Act of 1933 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 of 1933 (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 of
1933 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 (1)
the ability of the Depositary to dispose of such rights or (2) 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 ADSs 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.
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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.
(13) 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 ADS or whenever the Depositary shall receive notice
of any meeting, or solicitation of consents or proxies, 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 solicitation of consents or proxies or to exercise the rights of
Holders with respect to such changed number of Shares. Subject to the provisions
of the 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
American Depositary Shares held by them respectively or with respect to such
other matter.
(14) 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 4.08 of the Deposit Agreement for determining the Holders entitled to
give instructions for the exercise of voting rights. The notice 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 a
timely manner sufficiently in advance of such meeting to enable Holders to
exercise their voting rights on a reasonable basis, the Depositary having no
obligation to deliver such notice or make voting rights available to Holders of
ADSs if such notice is not timely received by the Depositary. The Company shall
provide to the Depositary sufficient copies, as the Depositary may reasonably
request, of notices of the Company's shareholders' meeting, 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) 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
(which provisions, if any, shall be summarized in pertinent part), 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 ADSs evidenced by their respective Receipts and (b) 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 ADSs representing an integral number
of Deposited Securities.
A-13
Upon the timely request of a Holder of ADSs evidenced by a Receipt 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 ADSs evidenced by such ADRs 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 ADRs, and
that the Holders of ADRs 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 or other Deposited Securities other than in accordance
with such instructions. Absent its negligence, bad faith or willful misconduct,
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 ADSs 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 4.09 of the 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 Shares or other Deposited Securities in the same manner and in the same
proportion as the holders of all other outstanding Shares or other Deposited
Securities (except for those represented by ADSs for which no voting
instructions have been given) vote their Shares or other Deposited Securities at
the meeting. In the event the Company has not timely delivered notice and voting
materials in accordance with the terms hereof and the terms of Section 4.09 of
the Deposit Agreement, the Depositary shall not, and shall ensure that the
Custodian does not, vote or cause the Custodian to vote the Shares or other
Deposited Securities represented by such ADSs.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, 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.
A Holder or Beneficial Owner of ADSs shall not be entitled to give any
instructions with respect to voting rights associated with ADSs evidenced by
ADRs 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 5.10 of
the 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 4.09 of the Deposit Agreement.
A-14
(15) 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 will be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities will be treated as new
Deposited Securities under the Deposit Agreement, and the ADSs shall, subject to
the terms of the Deposit Agreement and applicable laws, including any applicable
provisions of the Securities Act of 1933 and the Securities Exchange Act of
1934, thenceforth represent the new Deposited Securities so received, unless
additional or new ADSs 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 5.09 of the Deposit Agreement, create new or
additional ADSs representing such new Deposited Securities and execute and
deliver additional Receipts evidencing such ADSs as in the case of a stock
dividend on the Shares, and may call for the surrender of outstanding Receipts
to be exchanged for new Receipts 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 4.02 of the 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 Section 4.10 of the Deposit Agreement in respect of the
Deposited Securities, the Depositary shall, subject to applicable law, give
notice thereof, at the Company's expense, in writing to all Holders.
(16) Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders at its Principal Office and at the office of
each Custodian copies of the 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 Custodian or the
nominee of either, as the holder of the Deposited Securities, and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also send to Holders copies of such notices, reports and
communications when furnished by the Company to the Depositary as provided in
the Deposit Agreement. The Depositary shall keep books at its Principal Office
for the registration of Receipts and their transfer which at all reasonable
times will be open 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 Deposit Agreement or the
A-15
Receipts. Upon notice to the Company, the Depositary may close the transfer
books, at any time or from time or time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement.
(17) Withholding. Notwithstanding any other provision of the 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 ADSs 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 of 1933 and otherwise in compliance
with applicable law, distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
(18) Liability of the Company and 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 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 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 Deposit Agreement.
Neither the Depositary nor the Company shall be obligated to do or perform any
act which is inconsistent with the provisions of the 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 Deposit
Agreement, made available to Holders of ADSs. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement or this Receipt to Holders, Beneficial Owners or other
persons, including for any consequential or punitive damages for any breach of
the terms of the Deposit Agreement, except that each of them agrees to act in
good faith and without negligence in the performance of its obligations as are
specifically set forth in the Deposit Agreement. The Depositary and the Company
undertake to perform such duties and only such duties as are specifically set
forth in the Deposit Agreement, and no implied covenants or obligations shall be
read into the 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 Receipts, which in its opinion may
involve it in expense and liability, unless indemnity satisfactory to it against
A-16
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 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 ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party or for allowing any rights to lapse upon the terms of the
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 of 1933 is intended by
any provision of the Deposit Agreement.
(19) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of Sections 5.11 and 3.05 of the 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
ADSs. The Depositary may cause the issuance of ADSs 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
ADSs; provided, however, that to the extent permitted by Korean law, the
Depositary reserves the right to (i) cause the issuance of ADSs prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of ADSs pursuant to Section
2.05 of the Deposit Agreement, including ADSs which were issued under (i) above
but for which Shares may not have been received; further provided, however, that
the Depositary shall not issue ADSs prior to the receipt of Shares in the case
of the deposit of Shares by the Company in connection with an offering of ADSs
or pursuant to Sections 4.04 or 4.06 of the Deposit Agreement, unless requested
by the Company and to the extent permitted by applicable Korean law. The
Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares
in lieu of ADSs under (ii) above. Each such transaction shall be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
A-17
or Shares are to be delivered (w) represents that at the time of the pre-release
transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such pre-release transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, 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 ADSs and Shares involved in such pre-release transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs 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 ADSs and
Shares involved in pre-release transactions 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).
(20) Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign as Depositary under the 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 provided in the Deposit
Agreement. 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 provided in the Deposit Agreement. The Depositary may after
consultation with the Company, when it determines that it is appropriate to do
so, appoint a substitute or an additional custodian and the term "Custodian"
shall also refer to such substitute or additional custodian.
(21) Amendment and Supplement of Deposit Agreement and Receipts. This
Receipt and the Deposit Agreement may at any time and from time to time be
amended or supplemental by agreement between the Company and the Depositary in
any respect which they may deem necessary or desirable. Any amendment or
supplement 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 or Beneficial
Owners shall not, however, become effective as to outstanding Receipts until the
A-18
expiration of 30 days after notice of such amendment or supplement shall have
been given to the Holders of outstanding Receipts in accordance with Section
7.05 of the Deposit Agreement. The parties to the Deposit Agreement agree that
any amendments or supplements which (i) are reasonably necessary (as agreed by
the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act of 1933 or (b) the ADSs to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold this Receipt or to own
any beneficial interest herein, to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement and this Receipt as amended
or supplemented thereby. In no event shall any amendment or supplement impair
the right of the Holder to surrender this Receipt 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, or supplement to, the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement and this Receipt in such circumstances may become effective before a
notice of such amendment or supplement is given to Holders or within any other
period of time as required for compliance with such laws, rules or regulations.
(22) Termination of Deposit Agreement. The Depositary shall, at any time
at the written direction of the Company, terminate the Deposit Agreement by
providing notice of such termination to the Holders of all ADRs then outstanding
at least thirty (30) days prior to the date fixed in such notice for such
termination. If ninety (90) days shall have expired after (i) the Depositary
shall have delivered to the Company a written notice of its election to resign,
or (ii) 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 5.05
of the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
providing notice of such termination to the Holders of all ADRs then outstanding
at least thirty (30) days prior to the date fixed for such termination. On and
after the date of termination of the Deposit Agreement, the Holder of an ADR
will, upon surrender of such ADR at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of ADRs referred
to in Section 2.05 of the 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 ADR. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, 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 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 the Deposit
Agreement, and shall continue to deliver Deposited Securities, together with any
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dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
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 an ADR, any
expenses for the account of the Holder in accordance with the terms and
conditions of the 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
under the Deposit Agreement 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 ADRs which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash (after deducting, or charging, as the case
may be, in each case, the charges of the Depositary for the surrender of an ADR,
any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments) and its obligations under Section 5.10 of the Deposit
Agreement. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary under Sections 5.06, 5.10 and 7.06 of the Deposit
Agreement.
(23) Governing Law. The Deposit Agreement and this Receipt shall be
interpreted in accordance with, and all rights thereunder and hereunder and
provisions thereof and hereof shall be governed by, the laws of the State of New
York. Notwithstanding anything contained in the Deposit Agreement, this Receipt
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).
(24) Power of Attorney. Each Holder and Beneficial Owner, upon acceptance
of this Receipt hereby appoints the Depositary its attorney-in-fact, with full
power to delegate, to act on its behalf and to take any and all steps or action
provided for or contemplated herein or in the Deposit Agreement with respect to
the Deposited Securities, including but not limited to those set forth in
Section 3.05 and Article IV of the Deposit Agreement, and to take such further
steps or action as the Depositary in its reasonable discretion may deem
necessary or appropriate to carry out the purposes of the Deposit Agreement.
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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whose taxpayer identification number is
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and whose address is including postal zip code is
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the within ADR and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------- attorney-in-fact
to transfer said ADR on the books of the Depositary with full power of
substitution in the premises
Dated:_________________________ Signature_____________________________
Name:
Title:
SIGNATURE GUARANTEED NOTICE: The signature of the Holder to
this assignment must correspond with
the name as written upon the face of
the within instrument in every
particular, without alternation or
enlargement or any change whatsoever.
If the endorsement be executed by an
_____________________________________ attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity
and proper evidence of authority to
act in such capacity, if not on file
with the Depositary, must be forwarded
with this ADR.
All endorsements or assignments of
Receipts must be guaranteed by a
member of a Medallion Signature
Program approved by the Securities
Transfer Association Inc.
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