Exhibit 2
AMENDED AND RESTATED INVESTMENT AGREEMENT
dated as of September 4, 2001
between
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL KORYO, L.P.
and
KOOKMIN BANK
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................1
Section 1.02. General Interpretive Principles.............................5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BANK
Section 2.01. Enforceability of Agreement.................................5
Section 2.02. Consents; Authorization; No Conflicts.......................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 3.01. Enforceability of Agreement.................................6
Section 3.02. Consents; Authorization; No Conflicts.......................6
ARTICLE IV
GOVERNANCE
Section 4.01. Board Representation........................................6
Section 4.02. Appointment of Observer.....................................7
Section 4.03. Director and Officer Indemnification........................7
Section 4.04. Termination of Representation...............................7
Section 4.05. Compliance with Applicable Law..............................7
ARTICLE V
OFFERINGS OF SECURITIES
Section 5.01. Certain Offerings...........................................8
Section 5.02. U.S. Registration...........................................8
Section 5.03. Inconsistent Agreements.....................................8
ARTICLE VI
COVENANTS
Section 6.01. Consultation Regarding Certain Matters......................9
Section 6.02. Access of Certain Purchaser Affiliates......................9
Section 6.03. Listing; Reservation........................................9
Section 6.04. Confidentiality.............................................9
Section 6.05. Repurchase of Preferred Shares.............................10
ARTICLE VII
MISCELLANEOUS
Section 7.01. Fees and Expenses; Method of Payment.......................10
Section 7.02. Survival of Representations and Warranties.................10
Section 7.03. Specific Performance.......................................10
Section 7.04. Indemnification............................................10
Section 7.05. Notices....................................................11
Section 7.06. Entire Agreement; Amendment; Severability..................12
Section 7.07. Counterparts...............................................13
Section 7.08. Governing Law; Arbitration; Forum; Related Matters.........13
Section 7.09. Successors and Assigns.....................................14
Section 7.10. No Third-Party Beneficiaries...............................14
Section 7.11. Effectiveness..............................................15
Annex I U.S. Registration Rights
Annex II Arbitration Provisions
Exhibit A Form of Supplemental Confidentiality Agreement
AMENDED AND RESTATED INVESTMENT AGREEMENT
AMENDED AND RESTATED INVESTMENT AGREEMENT (the "Agreement"),
dated as of September 4, 2001, by and between ▇▇▇▇▇▇▇ Sachs Capital Koryo, L.P.,
a Cayman Islands exempted limited partnership (the "Purchaser"), and Kookmin
Bank, a Republic of Korea corporation (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and the Purchaser entered into an Investment
Agreement dated as of May 27, 1999 (the "Prior Agreement") pursuant to which the
Purchaser purchased from the Bank, and the Bank issued and sold to the
Purchaser, (i) 30,000,000 shares of the Bank's Common Stock, par value 5,000 Won
per share ("Common Stock"), and (ii) $200 million principal amount of
subordinated bonds convertible into Common Stock; and
WHEREAS, the Bank and the Purchaser desire to enter into this
Agreement to amend and restate the Prior Agreement to eliminate those provisions
that will no longer be applicable after the Effective Date (as defined below);
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements contained in this
Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall be similarly interpreted.
"Agreement" has the meaning set forth in the preamble.
"Articles of Incorporation" means the Articles of
Incorporation of the Bank, as amended from time to time.
"Bank" has the meaning set forth in the preamble.
"Board of Directors" means the board of directors of the Bank.
"Bonds" means the Bank's 3.00% Subordinated Convertible Bonds
Due 2005 issued and sold by the Bank to the Purchaser pursuant to the Prior
Agreement and the Indenture.
"Common Stock" has the meaning set forth in the recitals.
"Convertible Securities" means any subscriptions, options,
conversion rights, warrants, or other agreements, securities or commitments of
any kind obligating the Bank or any of its Subsidiaries to issue, grant, deliver
or sell, or cause to be issued, granted, delivered or sold, any equity
securities of the Bank or any of its Subsidiaries.
"Effective Date" means the date of the consummation of the
Merger.
"GDR" means the Global Depositary Receipts in respect of the
Common Stock quoted on the London Stock Exchange.
"Governmental Entity" means any government or political
subdivision or department of such government or political subdivision, any
governmental or regulatory body, commission, board, bureau, agency or
instrumentality, any stock exchange or any court.
"GS Investors" means the Purchaser and each Subsidiary of the
Purchaser (including ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Chosun Ltd., and ▇▇▇▇▇▇▇ Sachs
Capital Shilla Ltd.).
"Indemnified Purchaser Parties" has the meaning set forth in
Section 7.04.
"Indemnified Bank Parties" has the meaning set forth in
Section 7.04.
"Indenture" means the Indenture, dated as of June 14, 1999,
between the Bank and the Trustee, relating to the Bonds.
"Indenture Side Letter" means the letter agreement, dated June
14, 1999, between the Bank and the Purchaser, relating to certain rights of the
Purchaser with respect to the Bonds.
"KDIC" means the Korea Deposit Insurance Corporation.
"Korea FSC" means the Korean Financial Supervisory Commission
and any predecessor or successors to such commission.
"KSE" has the meaning set forth in Section 6.03(a).
"Law" means any law, treaty, statute, ordinance, code, rule or
regulation of a Governmental Entity or judgment, decree, order, writ, award,
injunction or determination of an arbitrator or court or other Governmental
Entity.
"Lien" means any mortgage, pledge, lien, security interest,
conditional sale agreement, title retention agreement or encumbrance of any
kind, character or description whatsoever.
"Losses" means any and all losses, penalties, claims,
liabilities and expenses (including reasonable attorneys' fees and
disbursements) incurred by, imposed upon or asserted against any Person.
"Material Adverse Effect" means a material adverse effect on
either (i) the financial condition, results of operations or business of the
Bank and its Subsidiaries, taken as a whole, or (ii) the ability of the Bank to
perform its obligations under this Agreement.
"Material Subsidiary" means Kookmin Credit Card Co., Ltd. and
Kookmin Leasing Co., Ltd.
"Merger" means the merger of each of the Bank and H&CB with a
newly formed Korean company.
"Minimum Holding Condition" means the condition that the
Transaction Shares beneficially owned by GS Investors (including for this
purpose all shares of Common Stock issuable upon conversion of Bonds
beneficially owned by GS Investors) represent, in the aggregate, at least 3% of
the Bank's outstanding Common Stock (including for this purpose all shares of
Common Stock issuable upon conversion of Bonds beneficially owned by GS
Investors, but excluding shares of Common Stock issued or issuable upon
conversion of Preferred Shares).
"Non-standing Director" means a member of the Board of
Directors who is not also employed as an executive officer of the Bank.
"Paying and Conversion Agency Agreement" means the paying and
conversion agency agreement, dated as of June 14, 1999, between the Bank and the
trustee and agents named therein, relating to the Bonds.
"Person" means any individual, corporation, company,
association, partnership, joint venture, trust or unincorporated organization,
or Governmental Entity.
"Preferred Shares" means the 40 million non-voting preferred
shares issued by the Bank to KDIC in December 1998 with an aggregate par value
of Won 200 billion, and all additional preferred shares issued at any time in
connection with the exercise of preemptive rights with respect to Preferred
Shares.
"Preferred Side Letter" means the letter agreement between the
Bank and the Purchaser dated as of May 27, 1999 relating to certain regulatory
actions necessary for the repurchase by the Bank of the Preferred Shares.
"Prior Agreement" has the meaning set forth in the preamble.
"Purchaser" has the meaning set forth in the preamble.
"Purchaser Nominee" means each of the nominees designated by
the Purchaser for election to the Board of Directors pursuant to Section 4.01.
"Regulatory Approvals" means, with respect to any matter, (i)
any and all permits, licenses, franchises, concessions, grants, consents,
approvals, orders, registrations, authorizations, waivers, clearances from, or
filings or registrations with, Governmental Entities, and (ii) any and all
waiting periods imposed by applicable laws, in each case in respect of such
matter.
"Representatives" means, with respect to any Person, any of
such Person's officers, directors, employees, agents, attorneys, accountants,
actuaries, consultants, equity financing partners or financial advisors or other
Person associated with, or acting on behalf of, such Person.
"Securities" means the Shares and the Bonds.
"Shares" means the Transaction Shares and, unless expressly
provided otherwise in this Agreement, any other shares of Common Stock held by
the Purchaser from time to time.
"Specified Affiliate" has the meaning set forth in Section
6.02.
"Subsidiary" means, (i) as to any Person (including the Bank),
any other Person of which Voting Securities with more than 50% of the Voting
Power are owned or controlled, directly or indirectly, by such first Person or
one or more of its Subsidiaries or by such first Person and one or more of its
Subsidiaries; and (ii) with respect to the Bank, any Person which at any time
has its accounts consolidated with those of the Bank or which, under Korean law,
regulations or generally accepted accounting principles from time to time,
should have its accounts consolidated with those of the Bank.
"Supplemental Confidentiality Agreement" means the
confidentiality agreement to be entered into pursuant to Section 6.04
substantially in the form attached as Exhibit A.
"Transaction Agreements" means this Agreement, the Indenture,
the Bonds, the Paying and Conversion Agency Agreement, the Indenture Side
Letter, the Supplemental Confidentiality Agreement, and the Preferred Side
Letter.
"Transaction Shares" means any shares of Common Stock (i)
purchased by the Purchaser under the Prior Agreement, (ii) issued upon
conversion of Bonds or (iii) received pursuant to a stock split, stock dividend,
stock reclassification, merger, exchange, combination, consolidation or other
recapitalization by the Bank or the exercise of Convertible Securities
distributed to stockholders of the Bank generally or the exercise of preemptive
rights, in each case in respect of Transaction Shares.
"Trustee" means The Bank of New York.
"U.S. SEC" means the U.S. Securities and Exchange Commission.
"U.S. Securities Act" means the U.S. Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
"Voting Power" means, with respect to any Voting Securities,
the aggregate number of votes attributable to such Voting Securities that could
generally be cast by the holders of such Voting Securities for the election of
directors or any similar managing person at the time of determination (assuming
such election were then being held).
"Voting Securities" means, (i) with respect to the Bank, the
equity securities of the Bank entitled to vote generally for the election of
directors of the Bank, and (ii) with respect to any other Person, any securities
of or interests in such Person entitled to vote generally for the election of
directors or any similar managing person of such Person or entitled to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
Section 1.02. General Interpretive Principles. Whenever used
in this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the term "including" means "including without
limitation" (and "include," "includes" and "included" shall be similarly
interpreted). References in this Agreement to Articles, Sections, Annexes,
Exhibits or Schedules mean the Articles, Sections, Annexes, Exhibits and
Schedules of or to this Agreement, and such Annexes, Exhibits and Schedules are
an integral part of this Agreement. All references to "dollars" or "$" refer to
U.S. dollars. All references to Won refer to Korean Won.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank hereby represents and warrants to the Purchaser, as
of the date hereof, as follows:
Section 2.01. Enforceability of Agreement. This Agreement has
been duly executed and delivered by the Bank and constitutes a valid and binding
obligation of the Bank, enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and by general principles of equity.
Section 2.02. Consents; Authorization; No Conflicts. (a) No
Regulatory Approval is required to have been obtained by the Bank or its
Subsidiaries in connection with the execution, delivery and performance of this
Agreement.
(b) The execution, delivery and performance of this Agreement
have been duly authorized by the Bank and will not (i) violate any provision of
the articles of incorporation or other constitutional documents of the Bank or
its Subsidiaries; (ii) give rise to any preemptive or similar rights on behalf
of any Person; (iii) result in the violation of any Law or Regulatory Approval
applicable to the Bank or its Subsidiaries; (iv) violate or constitute a default
under or give rise to any third party rights under any agreement or instrument
applicable to the Bank or its Material Subsidiaries or any of their properties;
or (v) result in the imposition of any Lien upon any assets of the Bank or its
Material Subsidiaries, except for such violations, defaults, third party rights
and Liens under clauses (iii), (iv) and (v) that, individually and in aggregate,
neither have had nor are reasonably likely to have a Material Adverse Effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Bank, as of the
date hereof, as follows:
Section 3.01. Enforceability of Agreement. (a) This Agreement
has been duly executed and delivered by the Purchaser and constitutes a valid
and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity.
Section 3.02. Consents; Authorization; No Conflicts. (a) No
Regulatory Approval is required to have been made or obtained by the Purchaser
or its Affiliates in connection with the execution, delivery and performance of
this Agreement.
(b) The execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser and will not (i) violate any
provision of the articles of incorporation or other constitutional documents of
the Purchaser, (ii) result in the violation of any Law or Regulatory Approval
applicable to the Purchaser or its Affiliates, (iii) violate or constitute a
default under or give rise to any third party rights under any agreement or
instrument applicable to the Purchaser or any of its assets, or (iv) result in
the imposition of any Lien upon any assets of the Purchaser, except for such
violations, defaults, third party rights and Liens under clauses (ii), (iii) and
(iv) that, individually and in the aggregate, neither have had nor are
reasonably likely to have a material adverse effect on the ability of the
Purchaser to perform its obligations under this Agreement.
ARTICLE IV
GOVERNANCE
Section 4.01. Board Representation. (a) Before any meeting of
the stockholders of the Bank at which the term of any Purchaser Nominee serving
on the Board of Directors is scheduled to expire, the Purchaser shall be
entitled to designate a Purchaser Nominee for election to the Board of Directors
as a Non-standing Director (who may be the same individual whose term is
expiring) to replace such Purchaser Nominee.
(b) The Board of Directors will nominate and recommend for
election to the Board of Directors, and the Bank will use its best efforts to
cause the election to the Board of Directors of, any Purchaser Nominee
designated by the Purchaser pursuant to Section 4.01(a).
(c) The Board of Directors will use its best efforts to
nominate and recommend an additional nominee designated by the Purchaser for
election to the Board of Directors as a Non-standing Director when such position
becomes available.
(d) In the event of the death, disability, resignation or
removal of a Purchaser Nominee from the Board of Directors, the Purchaser shall
designate a replacement for such director. The Board of Directors will nominate
and recommend such replacement for election or appointment to the Board of
Directors and the Bank will use its best efforts to cause such replacement to be
elected or appointed to the Board of Directors at the first ordinary general
meeting of stockholders following such designation.
Section 4.02. Appointment of Observer. If the Purchaser
declines to designate a Purchaser Nominee or the Purchaser Nominee is not
elected, the Purchaser shall be entitled to designate an individual as its
observer who shall be given notice of and, to the extent permitted by Korean
Law, be entitled to attend (but not vote at or otherwise participate in) all
regular and special meetings of the Board of Directors. The Purchaser shall have
the right to change the person designated as the observer at any time in its
sole discretion. The Bank shall enter into a contractual employment arrangement
with any observer designated by the Purchaser pursuant to which such observer
shall receive an amount of compensation to be mutually agreed. Each observer
shall enter into a confidentiality agreement substantially in the form of the
Supplemental Confidentiality Agreement.
Section 4.03. Director and Officer Indemnification. The Bank
will provide to each Purchaser Nominee upon his election to the Board of
Directors, indemnification and directors' insurance having terms and provisions
no less favorable to such individual than the indemnification and directors'
insurance provided to other Non-standing Directors of the Bank (including
coverage for matters arising in whole or in part out of any matter existing or
occurring while such Purchaser Nominee was a director, even though such
Purchaser Nominee may no longer be a director at the time any claim for
indemnification or coverage under insurance is made).
Section 4.04. Termination of Representation. The provisions of
Section 4.01 and Section 4.02 shall terminate, and the Purchaser shall no longer
be entitled to designate Purchaser Nominees for election to the Board of
Directors under Section 4.01 or an observer under Section 4.02, at such time as
the Minimum Holding Condition is no longer satisfied. The rights of the
Purchaser under this Article IV shall be in addition to the Purchaser's rights
as a stockholder of the Bank under the Articles of Incorporation or other
constitutional documents of the Bank or under applicable Laws.
Section 4.05. Compliance with Applicable Law. Without
prejudice to the rights of the Purchaser in respect of any breach of the Bank's
representations and warranties in Section 2.02(b), the Bank's obligations and
the rights of the Purchaser under this Article IV shall be subject to applicable
Law and the Articles of Incorporation, and the obligations of the Bank under
this Article IV shall not include any obligation to amend or assist in the
amendment of applicable Law or the Articles of Incorporation as they are in
effect on the date of this Agreement; provided, that if at any time the
obligations of the Bank and the rights of the Purchaser under this Article IV
shall be contrary to or inconsistent with applicable Law or the Articles of
Incorporation, the Bank shall use its best efforts to enter into arrangements
satisfactory to the Purchaser that are permissible under applicable Law and the
Articles of Incorporation which secure to the Purchaser the benefits conferred
upon it by the provisions of this Article IV.
ARTICLE V
OFFERINGS OF SECURITIES
Section 5.01. Certain Offerings. (a) Upon request of the
Purchaser, the Bank will use its reasonable best efforts to assist the Purchaser
and its Affiliates in connection with any proposed offer and sale of any
Securities that is not to be registered under the U.S. Securities Act, including
any efforts required to list the Bonds in accordance with Section 6.03 and to
facilitate the offer and sale of Securities in depositary receipt, exchangeable
bond or any other form in reliance on any exemption from the registration
requirements of the U.S. Securities Act (including the deposit by the Purchaser
of any Transaction Shares in the Bank's GDR facility (or any successor to such
facility)). The Bank accordingly agrees that it will, upon the request of the
Purchaser, prepare an offering document in customary form, and enter into an
underwriting or purchase agreement containing customary terms and provisions
reasonably acceptable to the Bank, in connection with such a proposed offer and
sale of Securities, and take all such other customary actions (including
participation by the Bank's management in roadshows and other meetings with
investors) as may reasonably be requested to facilitate the offer and sale of
such Securities. The Purchaser shall pay all expenses of offerings made under
this Section 5.01, including all underwriting discounts, selling commissions and
stock transfer taxes associated with the Securities it so offers and sells, but
excluding expenses related to offerings of Securities held by Persons other than
the GS Investors.
(b) The Bank hereby undertakes and agrees that for so long as
any of the Securities are "restricted securities" within the meaning of Rule
144(a)(3) under the U.S. Securities Act or the Purchaser or any Affiliate of the
Purchaser that holds any Securities may be deemed an "Affiliate" of the Bank
within the meaning of Rule 144 under such Act, the Bank will, during any period
in which it is not subject to and in compliance with Section 13 or 15(d) of the
U.S. Securities Exchange Act of 1934, as amended, or is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under
such Act, provide to each holder of such securities and to each prospective
purchaser (as designated by such holder) of such securities, upon the request of
such holder or prospective purchaser, any information required to be provided by
Rule 144A(d)(4) under the U.S. Securities Act.
Section 5.02. U.S. Registration. From and after the 180th day
following the Bank's first registered public offering of equity securities in
the United States, the provisions of Annex I will apply.
Section 5.03. Inconsistent Agreements. The Bank has not and
will not on or after the date of this Agreement enter into any agreement with
respect to the Common Stock that is inconsistent with the provisions of this
Article V or of Annex I. In particular, the Bank may not, by any means, grant to
any Person any registration rights with priority over those of the Securities
covered by this Agreement without the prior written consent of the holders of
such Securities; provided, that registration rights may be granted to other
holders of the Bank's securities on a pari passu basis and any other Person
entitled to registration rights, including the GS Investors, will be bound by
any customary restrictions on sales that are provided in an underwriting
agreement in connection with a registration effected pursuant to such
registration rights so long as such restrictions do not relate to a period of
more than 180 days.
ARTICLE VI
COVENANTS
Section 6.01. Consultation Regarding Certain Matters. For so
long as the Minimum Holding Condition is satisfied, the Bank will consult with
the Purchaser before it or any of its Subsidiaries authorizes, enters into or
consummates any agreement or understanding with respect to (x) a merger,
amalgamation, share exchange or consolidation involving any financial
institution (other than a transaction involving solely the Bank and/or one or
more of its Subsidiaries) or (y) the acquisition of a substantial portion of the
assets of any financial institution (other than a transaction involving solely
the Bank and/or one or more of its Subsidiaries). If the Bank and the Purchaser
agree that such proposed transaction is in the best interests of the Bank and
its shareholders, the Bank will pursue (or will cause its Subsidiaries to
pursue) such transaction; if there is no such agreement, the Bank will not
proceed (and will cause its Subsidiaries not to proceed) with such transaction.
Section 6.02. Access of Certain Purchaser Affiliates. (a) Each
of the Affiliates of the Purchaser (each, a "Specified Affiliate") listed in
Schedule 8.02(a) to the Prior Agreement shall be entitled, from time to time, to
discuss with the Bank, its officers, directors and independent accountants, and
to make proposals, recommendations and suggestions to the Bank relating to, the
business and affairs of the Bank. The Bank shall consider in good faith all
legitimate proposals, recommendations and suggestions made by a Specified
Affiliate pursuant to the foregoing sentence; provided, however, that nothing in
this Section 6.02(a) shall obligate the Bank to adopt or implement any proposal,
recommendation or suggestion made by or on behalf of such Specified Affiliate.
(b) The Bank shall permit each Specified Affiliate reasonable
access to the properties of the Bank and its Subsidiaries, and to the books,
records and other written information in the possession of the Bank relating to
its affairs, at all reasonable times.
Section 6.03. Listing; Reservation. (a) So long as the
Purchaser holds any of the Securities, the Bank shall use its best efforts to
ensure that the Common Stock continues to be quoted on the Korea Stock Exchange
(the "KSE").
(b) The Purchaser shall have the right to request that the
Bank list the Bonds on the London Stock Exchange or the Luxembourg Stock
Exchange, as determined by the Bank. Upon such request being made, the Bank
shall use its best efforts to effect the listing as soon as is reasonably
practicable, and the Purchaser will cooperate with the Bank to effect such
listing. The Purchaser shall pay all costs relating to a listing effected under
this Section 6.03, including the fees of the London Stock Exchange and the fees
and expenses of the listing agent, the Bank's legal counsel and the Bank's
accountants.
Section 6.04. Confidentiality. The Purchaser shall, and shall
cause each GS Investor and any observer designated pursuant to Section 4.02 to,
execute a confidentiality agreement in favor of the Bank substantially in the
form of the Supplemental Confidentiality Agreement.
Section 6.05. Repurchase of Preferred Shares. Subject to
obtaining the necessary regulatory approvals described in the Preferred Side
Letter, the Bank shall repurchase the Preferred Shares on or before the
applicable repurchase deadlines set forth in the agreements with KDIC and, in
any event, before the conversion of any Preferred Shares.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Fees and Expenses; Method of Payment. (a) Each
party will be responsible for the payment of all expenses incurred by it in
connection with this Agreement and the transactions contemplated by this
Agreement, regardless of whether such transactions are consummated.
(b) All amounts payable under this Agreement shall be paid in
immediately available funds to an account or accounts designated by the
recipient of such amounts, unless the parties mutually agree upon other means of
payment for a particular payment.
Section 7.02. Survival of Representations and Warranties.
Notwithstanding any investigation conducted or notice or knowledge obtained by
or on behalf of any party to this Agreement, and notwithstanding any provision
herein to the contrary, each representation or warranty in this Agreement shall
survive for a period of six months and, if any claim or claims shall have been
asserted during such period, for such additional period until a final resolution
of all such claims.
Section 7.03. Specific Performance. The parties to this
Agreement specifically acknowledge that monetary damages are not an adequate
remedy for any violation of this Agreement, and that any party to this Agreement
may, in accordance with Section 7.08(c) and Section 7 of Annex II, apply to a
court of competent jurisdiction or the International Chamber of Commerce for
such equitable relief as such court or tribunal, as the case may be, may deem
just and proper in order to enforce this Agreement or prevent any violation of
its terms and each party waives any objection to the imposition of relief of an
equitable nature if warranted.
Section 7.04. Indemnification. (a) The Bank agrees to
indemnify and hold harmless each GS Investor and each of their respective
Representatives (collectively, the "Indemnified Purchaser Parties") from and
against any and all Losses incurred by any of the Indemnified Purchaser Parties
as a result of, or arising out of, the breach of any representation, warranty,
agreement or covenant made by the Bank or any of its Subsidiaries in this
Agreement as they are incurred.
(b) The Purchaser agrees to indemnify and hold harmless the
Bank and each of its Representatives (collectively, the "Indemnified Bank
Parties") from and against any and all Losses incurred by any of the Indemnified
Bank Parties as a result of, or arising out of, the breach of any
representation, warranty, agreement or covenant made by the Purchaser in this
Agreement as they are incurred.
(c) The following provisions shall apply to claims for Losses
from claims by a third party. The indemnifying party shall have the absolute
right, in its sole discretion and expense, to elect to defend, contest or
otherwise protect against any such third party claim with legal counsel of its
own selection reasonably satisfactory to the indemnified party. The Indemnified
Purchaser Parties or the Indemnified Bank Parties, as the case may be, shall
have the right, but not the obligation, to participate, at their own expense, in
the defense of such third party claim through counsel of their own choice and
shall have the right, but not the obligation, to assert any and all crossclaims
or counterclaims they may have. To the extent permitted by applicable law, the
Indemnified Purchaser Parties or the Indemnified Bank Parties, as the case may
be, shall, and shall cause their Affiliates to, at all reasonable times
cooperate in all reasonable ways with, make their relevant files and records
reasonably available for inspection and copying by, and make their employees
reasonably available or otherwise render reasonable assistance to, the
indemnifying party (i) in its defense of any action for which indemnity is
sought hereunder and (ii) in its prosecution under the last sentence of this
Section 7.04(c) of any related claim, cross-complaint, counterclaim or right of
subrogation. In the event the indemnifying party fails timely to defend, contest
or otherwise protect against any such suit, action, investigation, claim or
proceeding, the Indemnified Purchaser Parties or the Indemnified Bank Parties,
as the case may be, shall have the right, but not the obligation, to defend,
contest, assert cross-claims or counterclaims or otherwise protect against the
same. No claim or action subject to this Agreement may be settled unless the
Indemnified Purchaser Parties or the Indemnified Bank Parties, as the case may
be, and the indemnifying party consent to such settlement, such consent not to
be unreasonably withheld.
Section 7.05. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered personally, by telecopier or sent by first class mail, postage
prepaid, as follows:
(a) If to the Bank, to:
▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇, ▇-▇▇
▇▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
telecopy: (▇▇▇) ▇▇▇▇ ▇▇▇▇
telephone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇.▇. ▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
telecopy: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
telephone: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇. Jr., Esq.
Park, Jin Hyuk, Esq.
(b) If to the Purchaser, to:
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
telecopy: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
telephone: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇▇▇ Sachs (Asia) L.L.C.
Seoul Branch
21st Floor, ▇▇▇▇ ▇▇▇ Life
Insurance ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇ ▇▇
▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
telecopy: (▇▇▇) ▇▇▇▇ ▇▇▇▇
telephone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Ji Min
With a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
telecopy: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
telephone: (▇ ▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(c) If to any other holder of shares of Securities, addressed
to such holder at the address of such holder in the record books of the Bank; or
to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
Section 7.06. Entire Agreement; Amendment; Severability. This
Agreement, the other Transaction Agreements and the documents described herein
or therein, or attached or delivered pursuant to such agreements, set forth the
entire agreement between the parties to this Agreement with respect to the
transactions contemplated by this Agreement and supersede all prior agreements
and undertakings, including the Prior Agreement which is terminated in its
entirety hereby. Any provision of this Agreement may be amended, modified or
supplemented in whole or in part at any time by an agreement in writing among
the parties to this Agreement executed in the same manner as this Agreement. No
failure on the part of any party to exercise, and no delay in exercising, any
right shall operate as waiver of such right, nor shall any single or partial
exercise by either party of any right preclude any other or future exercise of
such right or the exercise of any other right. No investigation of the Bank by
the Purchaser prior to or after the date of this Agreement shall stop or prevent
the Purchaser from exercising any right hereunder or be deemed to be a waiver of
any such right. If any provision of this Agreement is held to be invalid or
unenforceable, all other provisions shall nevertheless continue in full force
and effect.
Section 7.07. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to constitute an
original, but all of which together shall constitute one and the same document.
Section 7.08. Governing Law; Arbitration; Forum; Related
Matters. (a) This Agreement shall be governed by, and interpreted in accordance
with, the laws of the State of New York applicable to contracts made and to be
performed in that State without reference to its conflict of laws rules.
(b) Any dispute, controversy or claim arising out of, relating
to or in connection with this Agreement, including any dispute regarding its
validity or termination, or the performance or breach of this Agreement, shall
be finally settled by arbitration in accordance with the provisions set forth in
Annex II.
(c) The parties to this Agreement agree that the appropriate
and exclusive forum for any disputes arising out of this Agreement solely
between the Bank and the Purchaser, in the event that the arbitrator designated
pursuant to Annex II lacks jurisdiction to hear such dispute or such
arbitrator's determination is appealed or in connection with any request for an
injunction or other provisional or conservatory measures in aid of arbitration
as contemplated by Section 7.03 and Section 7 of Annex II, shall be the United
States District Court for the Southern District of New York. If such court will
not hear any such suit, the parties agree to jurisdiction in the courts of the
jurisdiction of the Bank's incorporation. The parties to this Agreement
irrevocably consent to the exclusive jurisdiction of such courts, and agree to
comply with all requirements necessary to give such courts jurisdiction. The
parties to this Agreement further agree that the parties will not bring suit
with respect to any disputes arising out of this Agreement except as expressly
set forth below for the execution or enforcement of judgment, in any
jurisdiction other than the above specified courts. In addition to the above,
the Purchaser may bring an action seeking an injunction or other equitable
relief (including provisional or conservatory measures in aid of arbitration as
contemplated by Section 7.03 and Section 7 of Annex II) to enforce the
obligations of the Bank in Section 6.01 in any of the above-mentioned courts or
any other court of competent jurisdiction, and the Bank irrevocably consents to
the jurisdiction of any such court and agrees to comply with all requirements
necessary to give any such court jurisdiction over such an action.
(d) Each of the parties to this Agreement irrevocably consents
to the service of process in any action or proceeding hereunder by the mailing
of copies of the notice, summons and/or complaint by registered or certified
airmail, postage prepaid, to the address specified in Section 7.06 hereof. The
foregoing shall not limit the rights of any party to this Agreement to serve
process in any other manner permitted by law or to obtain execution of judgment
in any other jurisdiction.
(e) The parties further agree, to the extent permitted by law,
that (i) a final and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified or exemplified copy of which shall be conclusive evidence of the
fact and the amount of indebtedness, and (ii) any order of preliminary relief
obtained in any action or proceeding contemplated above shall be given effect,
and will not be contested, in any other jurisdiction within or outside the
United States.
(f) The parties agree to waive any and all rights that they
may have to a jury trial with respect to disputes arising out of this Agreement.
(g) To the extent that the Bank or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it or its assets, any right of immunity on the grounds of
sovereignty from jurisdiction of any court, from service of process, or from any
legal action, suit or proceeding, including any action, suit or proceeding to
compel arbitration pursuant to Annex II or to confirm, enforce or execute any
arbitration award issued pursuant to Annex II (including but not limited to,
pre-judgment attachment in aid of the arbitration, attachment upon issuance of
an arbitration award, or attachment in aid of execution of judgment), in each
case in any jurisdiction in which such a proceeding may at any time be commenced
with respect to its obligations, liabilities and any other matters arising out
of its agreement to arbitrate or an arbitration award issued hereunder, the
Bank, to the fullest extent permitted by law, hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity.
Section 7.09. Successors and Assigns. Except as otherwise
expressly provided herein, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the parties' successors (including, in the case
of the Bank, the surviving entity in the Merger) and permitted assigns. Neither
this Agreement nor any rights or obligations hereunder shall be assignable or
transferable by any party to this Agreement without the prior written consent of
the other party to this Agreement; provided, however, that (i) the Purchaser may
assign all or part of its interest in this Agreement and any of its rights
hereunder to one or more of its Subsidiaries and, thereafter, the term
"Purchaser" shall include any such Subsidiaries to the extent of such assignment
and shall mean the assigning Purchaser and such Subsidiaries taken collectively;
and (ii) no such assignment shall relieve the Purchaser of its obligations
hereunder.
Section 7.10. No Third-Party Beneficiaries. This Agreement is
for the sole benefit of the parties to this Agreement and their respective
successors and permitted assigns and nothing herein, express or implied, is
intended or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except that the provisions of Section 4.03 shall inure to the benefit of and be
enforceable by the Purchaser Nominees; the provisions of Section 5.01(b) shall
inure to the benefit of and be enforceable by the holders, and the prospective
purchasers designated by such holders, from time to time of the securities
referred to therein; the provisions of Section 6.02 shall inure to the benefit
of and be enforceable by the Specified Affiliates referred to therein; and the
provisions of Section 7.05 shall inure to the benefit of and be enforceable by
each indemnified party thereunder.
Section 7.11. Effectiveness. Notwithstanding anything herein
to the contrary, (a) this Agreement shall amend and restate the Prior Agreement
in its entirety, and only be effective, from and after the Effective Date and
(b) before the Effective Date, this Agreement shall be of no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed on behalf
of the parties to this Agreement by their respective duly authorized officers,
all as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL KORYO, L.P.
By: ▇▇▇▇▇▇▇ Sachs Capital Koryo Gen Par,
L.L.C., its General Partner
By
-------------------------------------
Name:
Title:
KOOKMIN BANK
By
-------------------------------------
Name:
Title:
ANNEX I
U.S. REGISTRATION RIGHTS
Section 1. Definitions. The following definitions, as well as
certain terms defined elsewhere in this Annex I, shall apply to this Annex I
only:
"Adverse Disclosure" means public disclosure of material
non-public information relating to a significant transaction, which disclosure
(i) would, in the good faith judgment of the Board of Directors, after
consultation with outside counsel, be required to be made in any registration
statement filed with the Korea FSC or the U.S. SEC or any other Governmental
Entity by the Bank so that such registration statement would not be materially
misleading; (ii) would not, in the good faith judgment of the Board of
Directors, after consultation with outside counsel, be required to be made but
for the filing of such a registration statement; and (iii) would, in the good
faith judgment of the Board of Directors, have a Material Adverse Effect or a
material adverse effect on the Bank's ability to complete such significant
transaction or on the terms upon which such significant transaction can be
completed.
"Registrable Securities" means, with respect to any U.S. SEC
registration of securities of the Bank, all Securities held by the GS Investors
at the time of such registration and all other shares of Common Stock or other
securities of the Bank held by any of such Persons as a result of any stock
split or stock dividend or similar event or issuable upon conversion of the
Bonds, or any securities purchased from the Bank pursuant to Section 8.03 of the
Agreement or otherwise.
"Registration Expenses" means all expenses, except
underwriting discounts, selling commissions and stock transfer taxes incurred by
the Bank in complying with the terms of this Annex I, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Bank, blue sky fees and
expenses, the expense of any special audits incident to or required by any such
registration, expenses incurred by employees of the Bank in connection with
roadshows or other marketing and promotional efforts reasonably requested by the
managing underwriter and the reasonable fees and reasonable disbursements of one
counsel for the selling stockholders.
All other terms used but not defined in this Annex I shall
have the meanings set forth in the Agreement. References in this Annex I to
"Sections" are to the Sections of this Annex I, unless otherwise specified.
Section 2. Demand Registration. At any time and from time to
time on or after the 180th day following the Bank's first registered public
offering of equity securities in the United States, the Purchaser may request
that the Bank effect the registration under the U.S. Securities Act of
Registrable Securities (a "Demand Registration"). Upon receipt of such demand,
the Bank shall use its best efforts to effect such Demand Registration (provided
that such best efforts shall not require the Bank to prepare any audited interim
financial statements) as soon as practicable and, in any event, to file within
90 days of receipt of such request, a registration statement under the U.S.
Securities Act covering the Registrable Securities subject to such request,
subject to the limitations set forth in Section 3. The Bank may include in any
Demand Registration any other shares of Common Stock (including issued and
outstanding shares of Common Stock as to which the holders have contracted with
the Bank for "piggyback" registration rights) or Convertible Securities so long
as the inclusion in such registration thereof will not, in the reasonable
judgment of the managing underwriter(s), if any, materially and adversely
interfere with the timing, pricing or marketing in accordance with the intended
method of sale or other disposition of all Registrable Securities sought to be
registered. If it is determined as provided above that there will be such
interference, the shares of Common Stock or Convertible Securities sought to be
so included shall be excluded to the extent deemed appropriate by the managing
underwriter(s).
Section 3. Limitations. The Bank's obligation to effect a
Demand Registration requested pursuant to Section 2 shall be subject to the
following limitations:
(a) The Bank shall not be requested to effect any
Demand Registration unless the expected aggregate market value of the
Registrable Securities to be offered is at least $50,000,000.
(b) The Bank shall not be required to effect any
Demand Registration within six months of the effectiveness of a registration of
Registrable Securities registered pursuant to a previous Demand Registration
effected by the Bank.
(c) The Bank may defer its obligations to effect a
Demand Registration if, in the good faith judgment of the Board of Directors,
filing a registration statement with the U.S. SEC at the time a Demand
Registration is requested would require Adverse Disclosure, provided that such
deferral may not extend beyond the earlier to occur of (i) 90 days after the
date upon which such filing would otherwise be required pursuant to Section 2,
or (ii) the date upon which filing of a registration statement with the U.S. SEC
would not require disclosure that would constitute Adverse Disclosure therein.
(d) The Bank shall not be required to effect more than
five (5) Demand Registrations on behalf of the Purchaser.
Section 4. Selection of Underwriter for Demand Registration.
Any Demand Registration and related offering shall be managed by the Purchaser
as follows: the Purchaser shall have the right subject, in each case, to the
approval of the Bank (which shall not be unreasonably withheld) to select the
managing underwriter(s) for such offering and shall, in consultation with the
managing underwriter(s), have the right to determine the aggregate number or
principal amount of Registrable Securities to be included in such registration
and offering (subject to applicable limitations set forth herein), the offering
price per unit of Registrable Security, the underwriting discounts and
commissions per unit of Registrable Security, the terms of the underwriting
agreement, the timing of the registration and related offering (subject to
applicable limitations set forth herein), counsel to the Purchaser, and all
other administrative matters related to the registration and related offering.
The Bank hereby consents to the selection by the Purchaser of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. or any of its Affiliates as managing underwriter, if the Purchaser so
selects for any Demand Registration subject to the terms of this Annex I. The
Bank and each seller of securities included by the Bank in any Demand
Registration in accordance with Section 2 shall enter into an underwriting
agreement in customary form with the underwriter(s) selected by the Purchaser in
accordance with this Section 4 and shall enter into such other customary
agreements and take all such other customary actions (including participation by
the Bank's management in roadshows and other meetings with investors) as may
reasonably be requested to facilitate the disposition of the Registrable
Securities.
Section 5. Piggyback Registration Rights. At any time that the
Bank proposes to register with the U.S. SEC any Common Stock or convertible
bonds for sale solely for cash, for its own account, for the account of a
stockholder or stockholders, or both (a "Bank Registration"), the Bank shall
give the Purchaser prompt written notice of its intention to do so and of the
intended method of sale (the "Registration Notice"). The Purchaser may request
inclusion of any Registrable Securities in such Bank Registration by delivering
to the Bank, within 20 days after receipt of the Registration Notice, a written
notice (the "Piggyback Notice") stating the number or principal amount of
Registrable Securities proposed to be included and that such securities are to
be included in any underwriting only on the same or equivalent terms and
conditions as the shares of Common Stock or convertible bonds otherwise being
sold through underwriters under such registration. The Bank shall use its best
efforts to cause all Registrable Securities specified in the Piggyback Notice to
be included in the Bank Registration and any related offering, all to the extent
requisite to permit the sale by the Purchaser of such Registrable Securities in
accordance with the method of sale applicable to the other shares of Common
Stock or convertible bonds included in the Bank Registration.
Section 6. Limitations on Piggyback Registrations. The Bank's
obligation to include Registrable Securities in the Bank Registration pursuant
to Section 5 shall be subject to the following limitations:
(a) The Bank shall not be obligated to include any
Registrable Securities in a registration statement (i) filed on Form S-4, F-4 or
S-8 or such other similar successor forms then in effect under the U.S.
Securities Act, (ii) pursuant to which the Bank is offering to exchange its own
securities, or (iii) relating solely to dividend reinvestment plans. Any such
registration (other than on Form S-8) shall qualify as a public offering for
purposes of determining the availability of Demand Registration under Section 2
hereof.
(b) If the managing underwriter(s), if any, of an
offering related to the Bank Registration determines in its reasonable judgment
that marketing factors require a limitation of the number or principal amount of
securities that can be included in such offering, the managing underwriter(s)
may exclude the appropriate number or principal amount of securities held by the
securityholders of the Bank, including the Purchaser, from such registration. If
the managing underwriter(s) determines to exclude from such offering any
Registrable Securities that the Purchaser desires to include, or any Securities
that other Bank securityholders with applicable registration rights desire to
include, the Purchaser and such other Bank securityholders, if any (except for
such Person or Persons, if any, upon whose demand such Registration is being
made) shall share pro rata in the portion of such offering available to them
(the "Available Portion"). Such pro rata allocation of the Available Portion
between the GS Investors, on the one hand, and such other Bank securityholders,
on the other hand, shall be based on the relation between the aggregate number
of shares of Common Stock and shares underlying Convertible Securities that are
Registrable Securities of the GS Investors, on the one hand, and the aggregate
number of shares of Common Stock and shares underlying Convertible Securities
that such Bank securityholders with applicable registration rights are entitled
to include, on the other hand.
(c) Notwithstanding any provisions herein to the
contrary, the Purchaser may not request inclusion of any Registrable Securities
in any Bank Registration and the Bank shall not be required to make such
inclusion if such Bank Registration is the Bank's first registered public
offering of equity securities in the United States.
Section 7. Selection of Underwriter for Piggyback
Registration. Any Bank Registration and related offering shall be managed by the
Bank; the Bank shall have the power to select the managing underwriter(s) for
such offering and shall, in consultation with the managing underwriter(s), have
the power to determine the offering price, the underwriting discounts and
commissions, the terms of the underwriting agreement, the timing of the
registration and related offering, counsel to the Bank, and all other
administrative matters related to the registration and related offering. To the
extent that the Purchaser participates in a Bank Registration and related
offering pursuant to Section 5, the Purchaser shall enter into, and sell its
Registrable Securities only pursuant to, the underwriting arranged by the Bank,
and shall either commit to attend the closing of the offering and take such
other actions as may be reasonably necessary to effect the Purchaser's
participation in the offering and to provide any assurances reasonably requested
by the Bank and the managing underwriter(s) in that regard, or shall deliver to
the Bank in custody certificates representing all Registrable Securities to be
included in the Registration and shall execute and deliver to the Bank a custody
agreement and a power of attorney, each in form and substance appropriate for
the purpose of effecting the Purchaser's participation in the Bank Registration
and related offering and otherwise reasonably satisfactory to the Bank. If the
Purchaser disapproves of the features of the Bank Registration and related
offering, the Purchaser may elect to withdraw therefrom (in whole or in part) by
written notice to the Bank and the managing underwriter(s) delivered no later
than three (3) days prior to the effectiveness of the applicable registration
statement and the Registrable Securities of the Purchaser shall thereupon be
withdrawn from such registration.
Section 8. Registration Procedures. If and whenever the Bank
is required pursuant to this Annex to use its best efforts to effect the
registration of any of the Registrable Securities, the Bank shall, as
expeditiously as reasonably practicable:
(a) prepare and file with the U.S. SEC a registration
statement (including a prospectus therein) with respect to such securities and
use its best efforts to cause such registration statement to become and remain
effective for such period as may be necessary to permit the successful marketing
of such securities, but not exceeding 90 days;
(b) prepare and file with the U.S. SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith and use its best efforts to cause each such amendment to
become effective, as may be necessary to comply with the U.S. Securities Act and
the rules of the U.S. SEC thereunder; and to keep such registration statement
effective for that period of time specified in Section 8(a);
(c) furnish to the Purchaser such number of
prospectuses and preliminary prospectuses in conformity with the requirements of
the U.S. Securities Act, and such other documents as the Purchaser may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities being sold;
(d) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering (with each
securityholder participating in such underwriting also entering into and
performing its obligations under such an agreement, including furnishing any
opinion of counsel reasonably requested by the managing underwriter);
(e) notify each holder of Registrable Securities
promptly, and, if requested by such holder, confirm such advice in writing, (i)
when a registration statement has become effective and when any post-effective
amendments and supplements to such registration statement become effective, (ii)
of the issuance by the U.S. SEC or any other securities authority of any stop
order, injunction or other order or requirement suspending the effectiveness of
a registration statement or the initiation of any proceedings for that purpose,
(iii) if, between the effective date of a registration statement and the closing
of any sale of securities covered thereby pursuant to any agreement to which the
Bank is a party, the representations and warranties of the Bank contained in
such agreement cease to be true and correct in all material respects or if the
Bank receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose or (iv) of the happening of any
event during the period a registration statement is effective as a result of
which such registration statement or the related prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
use all reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement at the earliest possible time;
(f) upon written request by any underwriters of the
offering, and subject to applicable rules and guidelines, cause its independent
certified public accountants and attorneys, as applicable, to furnish the
Purchaser a signed counterpart, addressed to the Purchaser, and the
underwriters, if any, of (i) a letter from the independent certified accountants
of the Bank in the form customarily furnished to underwriters in firm commitment
underwritten offerings, providing substantially that such accountants are
independent certified public accountants within the meaning of the U.S.
Securities Act and that in the opinion of such accountants the financial
statements and other financial data of the Bank included in the registration
statement and the prospectus, and any amendment or supplement to such
registration statement and prospectus, comply as to form in all material
respects with the applicable accounting requirements of the U.S. Securities Act,
and additionally covering such other financial matters (including information as
of the date of such letter) with respect to the registration in respect of which
such letter is being given as the underwriters may reasonably request and as is
consistent with the requirements of Statements on Auditing Standards ("SAS") No.
72 or SAS No. 76; and (ii) an opinion of outside legal counsel to the Bank,
dated the effective date of the registration statement, covering substantially
the same matters with respect to the registration statement and prospectus
included therein as are customarily covered (at the time of such registration)
in the opinions of issuer's counsel delivered to the underwriters in comparable
underwritten public offerings;
(g) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the U.S.
securities or blue sky laws of such jurisdictions as the Purchaser or their
underwriters, if any, shall reasonably request, and do any and all other acts
and things which may be necessary or desirable to consummate the disposition of
the securities in such jurisdiction; provided, however, that the Bank shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified, or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject, or
subject the Bank to any tax in any such jurisdiction where it is not then so
subject;
(h) provide a transfer agent and registrar for all
such Registrable Securities not later than the effective date of such
registration statement;
(i) subject to the execution by such Persons of a
confidentiality agreement in customary form reasonably acceptable to the Bank,
make available for reasonable inspection by the Purchaser and any participating
underwriter, accountant or other agent retained by the Purchaser, and any
participating underwriter in a Demand Registration, all financial and other
records and pertinent documents, provide reasonable access to properties of the
Bank, and cause the Bank's Affiliates, employees and agents to (i) supply all
information, (ii) otherwise use their best efforts to obtain all legal opinions,
auditors' consents and comfort letters and (iii) participate in such road shows
and similar marketing efforts, in each case as may be reasonably requested by
the Purchaser, and any such underwriter, attorney, accountant or agent in
connection with the preparation of such registration statement and the sale of
such securities;
Section 9. Furnish Information. It shall be a condition
precedent to the obligations of the Bank to take any action pursuant to this
Annex that the selling stockholders shall furnish to the Bank such information
regarding themselves or the Registrable Securities held by them, and the
intended method of disposition of such securities, as shall be reasonably
requested by the Bank in order to effect the registration of their Registrable
Securities.
Section 10. Expenses. The Purchaser shall pay all Registration
Expenses. The Purchaser shall also pay all underwriting discounts, selling
commissions and stock transfer taxes in proportion to the number of Registrable
Securities it is selling in the given registered sale.
Section 11. Interim Financial Statements. Notwithstanding
anything herein to the contrary, nothing in this Annex I shall obligate the Bank
to prepare any audited interim financial statements.
ANNEX II
ARBITRATION PROVISIONS
All terms used but not defined in this Annex II shall have the
meanings set forth in the Agreement. References in this Annex II to "Sections"
are to the Sections of this Annex II, unless otherwise specified.
Section 1. Agreement to Arbitrate. Any and all disputes,
controversies or claims arising out of, relating to or in connection with this
Agreement, including, without limitation any dispute regarding its
interpretation, validity or termination, or the performance or breach thereof,
but not including any dispute, controversy or claim arising out of the
Indenture, the Bonds or the Indenture Side Letter, shall be finally settled by
arbitration administered by the International Chamber of Commerce (the "ICC").
The arbitration shall be conducted in accordance with the ICC Rules of
Arbitration (the "ICC Rules") in effect at the time of the arbitration to the
extent that such rules have not been modified by agreement of the parties.
Section 2. Arbitrators. The arbitration shall be conducted by
three (3) arbitrators, each of whom shall have experience in banking or complex
financial transactions.
Section 3. Replacement Arbitrators. In the event an appointed
arbitrator may not continue to act as an arbitrator of such panel, then the
party (or the two arbitrators appointed by the parties in the case of the third
arbitrator) that appointed such arbitrator shall have the right to appoint a
replacement arbitrator in accordance with the provisions of Section 2. The
Parties hereto agree that in the event an arbitral panel has been appointed to
resolve a dispute under this Agreement or any other Transaction Agreement which
is pending at the time a dispute arises hereunder, such previously appointed
arbitral panel shall be deemed appointed for purposes of resolving the dispute
arising hereunder.
Section 4. Language; Location. Unless the parties otherwise
agree, all submissions and awards in relation to arbitration under this Annex
shall be made in English and all arbitration proceedings and all pleadings shall
be in English. Original documents in a language other than English shall be
submitted as evidence in English translation accompanied by the original or true
copy thereof. Witnesses not fluent in English may give evidence in their native
tongue (with appropriate translation). The place of arbitration shall be New
York, New York.
Section 5. Authority. Without limiting the authority conferred
on the arbitral panel by this Annex and the rules specified above, the arbitral
panel shall have the authority to award specific performance.
Section 6. Evidence. The Parties agree that the Parties may,
within reason, request the production of relevant documents from the other in
the arbitration to the extent deemed appropriate by the arbitral panel. In
addition, the Parties agree that the arbitral panel may exclude evidence it
deems to be irrelevant. The Parties further agree that the arbitral panel may
rule upon any claim or counterclaim, or any portion thereof (the "Arbitrated
Claim"), without holding an evidentiary hearing, if, after affording both
parties an opportunity to present written submissions and documentary evidence,
the panel concludes that there is no material issue of fact and that the
Arbitrated Claim can be determined as a matter of law. With respect to
Arbitrated Claims not resolved pursuant to the previous sentence, the arbitral
panel shall, unless the parties otherwise agree, hold an evidentiary hearing,
except that direct testimony of witnesses shall be submitted by sworn affidavit
and, at the request of the other party, the witness submitting the affidavit
shall be made available for cross-examination and if the affiant is not made
available for cross-examination, the affidavit shall be stricken from the record
and shall not be considered as evidence by the arbitral panel; provided, that
the foregoing shall not preclude either party from introducing direct oral
testimony consistent with testimony previously submitted by sworn affidavit.
Section 7. Preliminary Relief. Nothing in this Annex II shall
preclude either party from seeking provisional or conservatory measures
(including, without limitation, preliminary injunctions to prevent breaches of
this Agreement) in aid of arbitration from any court of competent jurisdiction.
In addition, the arbitral panel may, at the request of a party, order provisions
or conservatory measures (including, without limitation, preliminary injunctions
to prevent breaches of this Agreement) and, to the extent permitted by
applicable Laws, the parties shall be able to enforce the terms and provisions
of such orders in any court having jurisdiction.
Section 8. Transcripts. At the request of either party or the
arbitral panel, a written transcript shall be made of each hearing before the
arbitral panel. The cost of any stenographic record and all transcripts thereof
shall be prorated equally among all parties ordering copies or, if the arbitral
panel has requested such transcription, the cost shall be prorated equally among
the parties, and shall be paid by such parties directly to the reporting agency.
Section 9. Arbitral Award. Any award in connection with the
aforementioned arbitration proceeding shall be final, binding and not subject to
appeal, and any judgment upon such award may be entered and enforced in any
court of competent jurisdiction. To the extent permitted by applicable Laws, the
Parties hereby waive all challenge to any award of an arbitrator under this
Annex II. The Bank hereby expressly confirms that the Bank's execution of this
Agreement and the performance of its obligations thereunder constitute
commercial acts and that the relationships created by this Agreement constitute
commercial relationships. The Bank further expressly confirms that any arbitral
award rendered against the Bank pursuant to this Annex II will be enforceable
against it in accordance with the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the "New York
Convention") in any jurisdiction that is a signatory to the New York Convention.
Section 10. Continued Performance During Arbitration. No
dispute, arbitration or other proceeding shall entitle the Bank to suspend
payment of interest or dividends otherwise payable to the Purchaser, nor shall
such dispute, arbitration or other proceeding affect the Purchaser's rights
pursuant to Article IV.
