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Document Preview Investment Agreement [Amended and Restated] |
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Title: |
Investment Agreement [Amended and Restated] |
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Entities: |
Kookmin Bank; Bank of New York; Goldman Sachs Group Inc.; Goldman, Sachs & Co.; Cleary, Gottlieb, Steen & Hamilton; Simpson Thacher & Bartlett; Goldman Sachs Capital Koryo, L.P.; Kookmin Bank |
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Date: |
2001 |
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Size: |
Preview shows 9KB of 79KB total |
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Price: |
$47 |
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ID: |
#314660 |
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AMENDED AND RESTATED INVESTMENT AGREEMENT
dated as of September 4, 2001
between
GOLDMAN SACHS CAPITAL KORYO, L.P.
and
KOOKMIN BANK
{PAGE}
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
{PAGE}
AMENDED AND RESTATED INVESTMENT AGREEMENT
AMENDED AND RESTATED INVESTMENT AGREEMENT (the "Agreement"),
dated as of September 4, 2001, by and between Goldman 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 Goldman Sachs Capital Chosun Ltd., and Goldman 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.
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