-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HECs5mZdkl2PI2+N5NTULPq/HVex+MW6P5/IyyVJ/konbGVhSfy8uYSAWct++pyO +j8hvgVij2eN449NzDocBA== 0001193125-09-088608.txt : 20090427 0001193125-09-088608.hdr.sgml : 20090427 20090427170034 ACCESSION NUMBER: 0001193125-09-088608 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20090427 DATE AS OF CHANGE: 20090427 GROUP MEMBERS: EBAY KTA (UK) LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Gmarket Inc. CENTRAL INDEX KEY: 0001365241 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 000000000 STATE OF INCORPORATION: M5 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81900 FILM NUMBER: 09773122 BUSINESS ADDRESS: STREET 1: 9TH FLOOR, LIG TOWER, 649-11 STREET 2: YEOKSAM-DONG, GANGNAM-GU CITY: SEOUL STATE: M5 ZIP: 135-912 BUSINESS PHONE: 822-1566-5701 MAIL ADDRESS: STREET 1: 9TH FLOOR, LIG TOWER, 649-11 STREET 2: YEOKSAM-DONG, GANGNAM-GU CITY: SEOUL STATE: M5 ZIP: 135-912 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EBAY INC CENTRAL INDEX KEY: 0001065088 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 770430924 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2145 HAMILTON AVENUE CITY: SAN JOSE STATE: CA ZIP: 95125 BUSINESS PHONE: 408-376-7400 MAIL ADDRESS: STREET 1: 2145 HAMILTON AVENUE CITY: SAN JOSE STATE: CA ZIP: 95125 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

(Amendment No.            )*

 

 

 

Gmarket Inc.

(Name of Issuer)

 

 

Common Shares, par value KRW 100 per share

American Depositary Shares, as evidenced by American Depositary Receipts, each representing one Common Share

(Title of Class of Securities)

 

 

The Common Shares, which are not traded on U.S. markets, have not been assigned a CUSIP number.

The CUSIP number for the related American Depositary Shares is 38012G100.

(CUSIP Number)

 

 

Michael R. Jacobson, Esq.

Senior Vice President, Legal Affairs, General Counsel and Secretary

eBay Inc.

2145 Hamilton Avenue

San Jose, California 95125

Tel: (408) 376-7400

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

 

April 15, 2009

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

*   The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No.         None (for Common Shares)

                            38012G100 (for ADSs)

 

  1)  

Names of Reporting Persons

 

eBay Inc.

    
  2)  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨

(b)  ¨

    
  3)  

SEC Use Only

 

    
  4)  

Source of Funds (See Instructions)

 

OO

    
  5)  

Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

 

   x
  6)  

Citizenship or Place of Organization

 

Delaware

    

Number of  

Shares  

Beneficially  

Owned by  

Each  

Reporting  

Person  

With  

  

  (7)    Sole Voting Power

 

         0

 

  (8)    Shared Voting Power

 

         27,046,576(1)(2)

 

  (9)    Sole Dispositive Power

 

         0

 

(10)    Shared Dispositive Power

 

         27,046,576(1)(2)

11)  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

27,046,576(1)(2)

    
12)  

Check if the Aggregate Amount In Row (11) Excludes Certain Shares (See Instructions)

 

   ¨
13)  

Percent of Class Represented By Amount In Row (11)

 

53.3%

    
14)  

Type of Reporting Person (See Instructions)

 

CO

    

 

(1) Beneficial ownership of the above referenced securities is being reported hereunder solely because the reporting persons may be deemed to have beneficial ownership of such securities as a result of Agreements to Tender (as defined in Item 4 below) entered into with beneficial owners of such securities as described herein. Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by either of the reporting persons that it is the beneficial owner of any of the Common Shares or ADSs referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 

(2) Includes options to purchase an aggregate of 330,000 Common Shares, which options are exercisable within 60 days of April 16, 2009, held by persons who have entered into Agreements to Tender with the reporting persons as described herein. Pursuant to the terms of such agreements, in the event that any such options are exercised, the person exercising such options would be obligated to tender any Common Shares issued upon such exercise into the Offer (as defined below) and to deliver a proxy to eBay and eBay UK covering such Common Shares and vote such Common Shares in favor of the matters described in Items 4 and 5 below.

CUSIP No.         None (for Common Shares)

                            38012G100 (for ADSs)

 

  1)  

Names of Reporting Persons

 

eBay KTA (UK) Ltd.

    
  2)  

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨

(b)  ¨

    
  3)  

SEC Use Only

 

    
  4)  

Source of Funds (See Instructions)

 

OO

    
  5)  

Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

 

   x
  6)  

Citizenship or Place of Organization

 

United Kingdom

    

Number of  

Shares  

Beneficially  

Owned by  

Each  

Reporting  

Person  

With  

  

  (7)    Sole Voting Power

 

         0

 

  (8)    Shared Voting Power

 

         27,046,576(1)(2)

 

  (9)    Sole Dispositive Power

 

         0

 

(10)    Shared Dispositive Power

 

         27,046,576(1)(2)

11)  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

27,046,576(1)(2)

    
12)  

Check if the Aggregate Amount In Row (11) Excludes Certain Shares (See Instructions)

 

   ¨
13)  

Percent of Class Represented By Amount In Row (11)

 

53.3%

    
14)  

Type of Reporting Person (See Instructions)

 

CO

    

 

(1) Beneficial ownership of the above referenced securities is being reported hereunder solely because the reporting persons may be deemed to have beneficial ownership of such securities as a result of a Agreements to Tender entered into with beneficial owners of such securities as described herein. Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by either of the reporting persons that it is the beneficial owner of any of the Common Shares or ADSs referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 

(2) Includes options to purchase an aggregate of 330,000 Common Shares, which options are exercisable within 60 days of April 16, 2009, held by persons who have entered into Agreements to Tender with the reporting persons as described herein. Pursuant to the terms of such agreements, in the event that any such options are exercised, the person exercising such options would be obligated to tender any Common Shares issued upon such exercise into the Offer (as defined below) and to deliver a proxy to eBay and eBay UK covering such Common Shares and vote such Common Shares in favor of the matters described in Items 4 and 5 below.

Item 1. Security and Issuer

The classes of equity securities to which this statement relates are common shares, par value KRW 100 per share (the “Common Shares”), and American Depositary Shares, each representing one Common Share and evidenced by an American Depositary Receipt issued by Citibank, N.A. (the “ADSs”), of Gmarket Inc., a company organized under the laws of the Republic of Korea (“Gmarket”). The principal executive offices of Gmarket are located at 9th Floor, LIG Tower, 649-11 Yeoksam-Dong, Gangnam-Gu, Seoul 135-912, Korea.

 

Item 2. Identity and Background

(a) The names of the persons filing this statement are eBay Inc., a Delaware corporation (“eBay”), and eBay KTA (UK) Ltd., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of eBay (“eBay UK”).

(b) The business address of eBay is 2145 Hamilton Avenue, San Jose, California 95125. The business address of eBay UK is c/o eBay Inc., 2145 Hamilton Avenue, San Jose, California 95125.

(c) eBay provides online marketplaces for the sale of goods and services as well as other online commerce, or ecommerce, platforms, online payment solutions and online communications offerings to a diverse community of individuals and businesses. eBay UK is an indirect wholly-owned subsidiary of eBay.

(d) None of eBay, eBay UK or, to the knowledge of eBay, any person identified on Schedule A attached hereto during the last five years has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) None of eBay, eBay UK or, to the knowledge of eBay, any person identified on Schedule A attached hereto during the last five years was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws, except as described below.

From March 1996 to June 2004, Fred D. Anderson, a member of eBay’s board of directors, served as Executive Vice President and Chief Financial Officer of Apple Inc., a manufacturer of personal computers and related software. On April 24, 2007, the Securities and Exchange Commission (the “SEC”) filed a complaint against Mr. Anderson and another former officer of Apple Inc. The complaint alleged that Mr. Anderson failed to take steps to ensure that the accounting for an option granted in 2001 to certain executives of Apple Inc., including himself, was proper. Simultaneously with the filing of the complaint, Mr. Anderson settled with the SEC, neither admitting nor denying the allegations in the complaint. In connection with the settlement, Mr. Anderson agreed to a permanent injunction from future violations of Sections 17(a)(2) and 17(a)(3) of the Securities Act of 1933 and Section 16(a) of the Act and Rules 13b2-2 and 16a-3 thereunder, and from aiding and abetting future violations of Sections 13(a), 13(b)(2)(A), 13(b)(2)(B), and 14(a) of the Act and Rules 12b-20, 13a-1, 13a-13, and 14a-9 thereunder. He also agreed to disgorge approximately $3.5 million in profits and interest from the option he received and to pay a civil penalty of $150,000. Under the terms of the settlement, Mr. Anderson may continue to act as an officer or director of public companies.

(f) All of the directors and executive officers of eBay and eBay UK named in Schedule A attached hereto are citizens of the United States, other than Philippe Bourguignon, who is a citizen of France.

Set forth on Schedule A is the name and present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of each of eBay and eBay UK as of the date hereof.

 

Item 3. Source and Amount of Funds or Other Consideration

The Agreements to Tender (as defined in Item 4 below) were entered into among eBay, eBay UK and certain holders of Common Shares and/or ADSs (collectively, the “Shareholders”). The Shareholders entered into the Agreements to Tender as an inducement to eBay and eBay UK to enter into the Share Allocation Agreement (as defined in Item 4 below). The reporting persons did not pay additional consideration to the Shareholders in connection with the execution and delivery of the Agreements to Tender and thus no funds were used for such purpose.

In connection with the Offer (as defined in Item 4 below) eBay and eBay UK estimate that eBay UK will need: (i) approximately $1.3 billion to purchase all of the Common Shares and ADSs pursuant to the Offer (assuming that all such Common Shares and ADSs are validly tendered and not withdrawn) and to pay all related fees and expenses; and (ii) approximately $555.1 million to purchase the

New Shares (as defined in Item 4 below). Of the amount needed to purchase Common Shares and ADSs pursuant to the Offer, approximately $641.2 million will be used to purchase all of the Voting Shares (as defined in Item 4 below). eBay UK will have sufficient cash on hand at the expiration of the Offer to pay for all Common Shares and ADSs that are validly tendered and accepted for payment in the Offer because eBay or an affiliate of eBay and eBay UK will contribute or otherwise advance funds to eBay UK to enable eBay UK to pay for the Common Shares and ADSs that are tendered and accepted for payment in the Offer.

 

Item 4. Purpose of Transaction

(a) - (b) On April 15, 2009 in the United States (and April 16, 2009 in Korea), eBay, eBay UK and Gmarket entered into a Share Allocation and Tender Offer Agreement (the “Share Allocation Agreement”), which contemplates the acquisition by eBay UK of all outstanding Common Shares and ADSs of Gmarket. The Share Allocation Agreement provides that eBay UK would commence a cash tender offer (the “Offer”) to purchase all outstanding Common Shares and all outstanding ADSs at a purchase price of $24.00 per Common Share and per ADS (such price, or any other price per Common Share and per ADS that is paid in the Offer, the “Offer Price”), without interest thereon, less any required withholding taxes. In addition, pursuant to the Share Allocation Agreement, eBay UK has agreed to purchase 23,131,071 newly-issued Common Shares (the “New Shares”) from Gmarket for a price per New Share equal to the Offer Price, or an aggregate amount of $555,145,704, in cash.

It is contemplated that the purchase of the New Shares will close a few business days following the time that eBay UK first accepts Common Shares (including Common Shares underlying ADSs) for payment pursuant to the Offer (the “Acceptance Time”).

The Share Allocation Agreement provides that eBay UK will commence the Offer as promptly as reasonably practicable (and, if Gmarket has satisfied certain conditions as specified in the Share Allocation Agreement, within ten business days) after the date of the Share Allocation Agreement. The obligation of eBay UK to accept for payment Common Shares and ADSs validly tendered (and not withdrawn) pursuant to the Offer is subject to a number of conditions set forth in the Share Allocation Agreement, including, among other things, that (i) more than 50% of the Common Shares and ADSs outstanding (determined on a fully-diluted basis based on a formula set forth in the Share Allocation Agreement) shall have been validly tendered (and not withdrawn), (ii) final clearance under Korean antitrust laws shall have been obtained, and (iii) other conditions set forth in Annex I to the Share Allocation Agreement shall have been satisfied.

As an inducement to eBay to enter into the Share Allocation Agreement, certain shareholders of Gmarket holding an aggregate of 27,046,576 Common Shares (including Common Shares underlying ADSs and options to purchase an aggregate of 330,000 Common Shares which are exercisable within 60 days of April 16, 2009) (the “Voting Shares”), which is a sufficient amount to satisfy the minimum tender condition under the Share Allocation Agreement, have each entered into an Agreement to Tender and Voting Agreement (collectively, the “Agreements to Tender”) pursuant to which such shareholders have agreed to tender all Common Shares and ADSs now owned or hereafter acquired by them in the Offer and to vote any such Common Shares and ADSs in favor of the transactions contemplated by the Share Allocation Agreement.

The foregoing descriptions of the Share Allocation Agreement and the Agreements to Tender in this Schedule 13D are qualified in their entirety by reference to the full text of such agreements referenced as Exhibits 7.1 and 7.2 through 7.8, respectively, which are incorporated by reference herein.

(c) Not applicable

(d) The Share Allocation Agreement requires that Gmarket call and hold an extraordinary general meeting of shareholders for the purpose of considering and voting on certain voting proposals as specified in the Share Allocation Agreement, including proposals: (i) to elect individuals identified by eBay prior to the date of the meeting as its designees for election to Gmarket’s board of directors; (ii) to amend Gmarket’s Articles of Incorporation to eliminate all provisions relating to Outside Directors; (iii) to amend Gmarket’s Articles of Incorporation to decrease the maximum number of members of Gmarket’s board of directors from nine to six; (iv) to amend Gmarket’s Articles of Incorporation to eliminate the audit committee and replace it with a statutory auditor; (v) to appoint a statutory auditor to be designated by eBay; and (vi) to amend Gmarket’s Articles of Incorporation to provide that Gmarket have up to two Representative Directors, each authorized to represent and act on behalf of Gmarket, in each case with such election, amendment or appointment, as applicable, to be conditioned upon the occurrence of the Acceptance Time.

In addition, if the transactions contemplated by the Share Allocation Agreement are consummated, eBay will have the ability to subsequently determine the size and membership of the board of directors of Gmarket and the officers of Gmarket.

(e) Under the terms of the Share Allocation Agreement, Gmarket may not: (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities; or (ii) sell, issue, grant or authorize the sale, issuance or grant of: (A) any shares of capital stock or other security; (B) any option, call, warrant or right to acquire any shares of capital stock or other security; or (C) any instrument convertible into or exchangeable for any shares of capital stock or other security, in each case except under limited circumstances as set forth in the Share Allocation Agreement.

(f) If the transactions contemplated by the Share Allocation Agreement are consummated, Gmarket will become a subsidiary of eBay UK and an indirect subsidiary of eBay.

(g) The Share Allocation Agreement contains provisions that limit the ability of Gmarket and specified representatives of Gmarket to engage in a transaction that would entail a change of control of Gmarket (other than the transactions contemplated by the Share Allocation Agreement) during the pendency of transactions contemplated by the Share Allocation Agreement.

(h) Pursuant to the Share Allocation Agreement, Gmarket will apply for delisting of the ADSs from The Nasdaq Stock Market promptly after the Acceptance Time.

(i) Upon consummation of the transactions contemplated by the Share Allocation Agreement and the Share Purchase Agreement, the ADSs may become eligible for termination of registration pursuant to Section 12(g)(4) of the Act.

(j) Other than as described above, eBay and eBay UK currently have no plan or proposal which relates to, or may result in, any of the matters described in Items 4(a) – (i) of this Schedule 13D (although each of eBay and eBay UK reserves the right to develop such plans).

 

Item 5. Interest in Securities of the Issuer

(a) – (b) As described in Item 4 (a) – (b) of this Schedule 13D, as a result of the Agreements to Tender, eBay and eBay UK have the shared power to vote or to direct the vote with respect to certain matters as set forth in such Agreements to Tender, the Voting Shares. In addition, as a result of the Agreements to Tender, eBay and eBay UK have the shared power to dispose or to direct the disposition with respect to the Voting Shares. The aggregate number of Voting Shares represents approximately 53.3% of the outstanding Common Shares (including Common Shares underlying ADSs) of Gmarket (based on the total number of Common Shares and ADSs outstanding as represented by Gmarket in the Share Allocation Agreement). The reporting persons, however, hereby disclaim beneficial ownership of such shares and this Schedule 13D shall not be construed as an admission that the reporting persons are, for any or all purposes, the beneficial owners of the securities covered by this Schedule 13D. Except as set forth in this Schedule 13D, no Common Shares or ADSs are beneficially owned by eBay or eBay UK or, to the knowledge of eBay and eBay UK, any person listed on Schedule A to this Schedule 13D. The description contained in this Item 5 of the transactions contemplated by the Agreements to Tender is qualified in its entirety by reference to the full text of the Agreements to Tender, copies of which are incorporated by reference in this Schedule 13D as Exhibits 7.2 through 7.8.

Schedule B to this Schedule 13D sets forth, to the knowledge of eBay and eBay UK, the following information for those natural persons with whom eBay and eBay UK share the power to vote or to direct the vote or to dispose or to direct the disposition of the Voting Shares: the name, present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of such persons. To the knowledge of eBay and eBay UK, all of such natural persons listed on Schedule B to this Schedule 13D are citizens of the Republic of Korea. Schedule B to this Schedule 13D also sets forth, to the knowledge of eBay and eBay UK, the following information for those entities with whom eBay and eBay UK share the power to vote or to direct the vote or to dispose or to direct the disposition of the Voting Shares: the name, state or other place of organization, principal business and business address, of such entities.

eBay and eBay UK have no knowledge that any person listed on Schedule B to this Schedule 13D during the last five years has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

eBay and eBay UK have no knowledge that any person listed on Schedule B to this Schedule 13D during the last five years has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(c) Neither eBay nor eBay UK, nor, to the knowledge of eBay and eBay UK, any person named in Schedule A to this Schedule 13D, has effected any transaction in Common Shares or ADSs during the past 60 days, except as disclosed herein.

(d) To the knowledge of eBay and eBay UK, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Voting Shares.

(e) Not applicable

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Other than as described in Item 4 and Item 5 above, neither eBay nor eBay UK is a party to any contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of Gmarket, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7. Material to Be Filed as Exhibits

 

Exhibit
Number

   

Description

7.1    Share Allocation and Tender Offer Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Gmarket Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by eBay Inc. on April 16, 2009)
7.2    Form of Agreement to Tender and Voting Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and each of Young Bae Ku, Duckjun (D.J.) Lee, Dae Sik Yang and Kwang Jin Ryoo
7.3    Agreement to Tender and Voting Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Interpark Corporation
7.4    Agreement to Tender and Voting Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Ki-Hyung Lee
7.5    Agreement to Tender and Voting Agreement dated as of April 15, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and KB Investment & Securities Co., Ltd.
7.6    Agreement to Tender and Voting Agreement dated as of April 15, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Wilshire Norman Limited
7.7    Agreement to Tender and Voting Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Yahoo! Korea Yuhan Hoesa
7.8    Agreement to Tender and Voting Agreement dated as of April 16, 2009, by and among eBay Inc., eBay KTA (UK) Ltd. and Yahoo! Inc.
7.9    Joint Filing Agreement, dated as of April 24, 2009, between eBay Inc. and eBay KTA (UK) Ltd.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: April 27, 2009

 

EBAY INC.
By:    /s/ Brian H. Levey
  Name:   Brian H. Levey
  Title:   Vice President, Deputy General Counsel, and Assistant Secretary
EBAY KTA (UK) LTD.
By:   /s/ Jay C. Clemens
  Name:   Jay C. Clemens
  Title:   Director

SCHEDULE A

EXECUTIVE OFFICERS AND DIRECTORS OF EBAY AND EBAY UK

Executive Officers of eBay

 

Name

   

Position

John J. Donahoe    President, Chief Executive Officer and Director
Elizabeth L. Axelrod    Senior Vice President, Human Resources
Mark T. Carges    Senior Vice President, Technology
Michael R. Jacobson    Senior Vice President, Legal Affairs, General Counsel and Secretary
Alan L. Marks    Senior Vice President, Corporate Communications
Lorrie M. Norrington    President, eBay Marketplaces
Robert H. Swan    Senior Vice President, Finance and Chief Financial Officer
Scott Thompson    President, PayPal

All individuals named in the table above are employed by eBay Inc. The address of eBay’s principal executive offices is 2145 Hamilton Avenue, San Jose, California 95125.

Directors of eBay

 

Name

   

Present Principal

Occupation or

Employment

   

Name, Principal Business and Address of
Organization in which Employed

John J. Donahoe    President, Chief Executive Officer and Director   

eBay Inc. (online marketplace)

2145 Hamilton Avenue

San Jose, California 95125

Fred D. Anderson    Managing Director   

Elevation Partners (private equity firm)

2800 Sand Hill Road, Suite 160

Menlo Park, CA 94025

Marc L. Andreessen    Co-Founder and Chairman   

Ning Inc. (online social network company)

735 Emerson Street

Palo Alto, CA 94301

Edward W. Barnholt    Director   

eBay Inc. (online marketplace)

2145 Hamilton Avenue

San Jose, California 95125

Philippe Bourguignon    Vice Chairman   

Revolution Places LLC (resort investments and operations company)

1717 Rhode Island Avenue NW, Suite 900

Washington DC 20036

Scott D. Cook    Chairman of Executive Committee of the Board   

Intuit Inc. (financial software developer)

2700 Coast Avenue

Mountain View, CA 94043

William C. Ford, Jr.    Executive Chairman of the Board of Directors   

Ford Motor Company (manufacturer and distributor of automobiles)

One American Road

Dearborn, MI 48126

Dawn G. Lepore    Chief Executive Officer and Chairman of the Board   

drugstore.com, inc. (online provider of health, beauty, vision and pharmacy solutions)

411 108th Ave NE, Suite 1400

Bellevue, WA 98004

Name

   

Present Principal

Occupation or

Employment

   

Name, Principal Business and Address of
Organization in which Employed

David M. Moffett    Director   

eBay Inc. (online marketplace)

2145 Hamilton Avenue

San Jose, California 95125

Pierre M. Omidyar    Co-Founder and Chairman   

Omidyar Network (philanthropic investment firm)

1991 Broadway St, Suite 200

Redwood City, CA 94063

Richard T. Schlosberg, III    Director   

Bank of San Antonio (bank)

800 E. Sonterra Blvd., Suite 140

San Antonio, TX 78257

Thomas J. Tierney    Founder and Chairman of the Board   

The Bridgespan Group (non-profit consulting firm)

535 Boylston St., 10th Floor

Boston, MA 02116

Executive Officer and Director of eBay UK

 

Name and Title

   

Present Principal

Occupation or

Employment

   

Name, Principal Business and Address of
Organization in which Employed

Jay C. Clemens, Director    Senior Vice President, Legal Counsel   

eBay Inc. (online marketplace)

2145 Hamilton Avenue

San Jose, California 95125

SCHEDULE B

NATURAL PERSONS WITH WHOM EBAY AND EBAY UK SHARE VOTING AND DISPOSITIVE POWER

 

Name

   

Present Principal

Occupation or

Employment

   

Name, Principal Business and Address of
Organization in which Employed

Young Bae Ku    Representative Director and Chief Executive Officer   

Gmarket Inc.

9th Floor, LIG Tower

649-11 Yeoksam-Dong, Gangnam-Gu

Seoul 135-912, Korea

Duckjun (D.J.) Lee    Senior Managing Director and Chief Financial Officer   

Gmarket Inc.

9th Floor, LIG Tower

649-11 Yeoksam-Dong, Gangnam-Gu

Seoul 135-912, Korea

Dae Sik Yang    Managing Director and Chief Technology Officer   

Gmarket Inc.

9th Floor, LIG Tower

649-11 Yeoksam-Dong, Gangnam-Gu

Seoul 135-912, Korea

Kwang Jin Ryoo    Managing Director — e-Market Operations   

Gmarket Inc.

9th Floor, LIG Tower

649-11 Yeoksam-Dong, Gangnam-Gu

Seoul 135-912, Korea

Ki-Hyung Lee    Chief Executive Officer   

Interpark Corporation

8th Floor, NamSeoul Bldg.

1304-3, Seocho-dong, Seocho-gu

Seoul, 137-074, Korea

ENTITIES WITH WHOM EBAY AND EBAY UK SHARE VOTING AND DISPOSITIVE POWER

 

Name and Principal Business

   

State or Other Place of Organization

   

Principal Business Address

Interpark Corporation (online shopping services)    Korea   

8th Floor, NamSeoul Bldg.

1304-3, Seocho-dong, Seocho-gu

Seoul, 137-074, Korea

KB Investment & Securities Co., Ltd. (securities firm)    Korea   

5th Floor, You-chon Bldg., 24-1

Yuido-dong, Youngdungpo-gu

Seoul, 150-877, Korea

Wilshire Norman Limited (asset manager)    British Virgin Islands   

P.O. Box 957

Offshore Incorporations Centre

Road Town, Tortola

British Virgin Islands

Yahoo! Korea Yuhan Hoesa (internet search and services)    Korea   

14th Floor, JS Tower 144-19,20

Samseong-dong, Gangnam-gu

Seoul, Korea

Yahoo! Inc. (internet search and services)    Delaware   

701 First Avenue

Sunnyvale, CA 94089

 EX-7.2 2 dex72.htm FORM OF AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Form of Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.2

EXECUTION VERSION

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT(“Agreement”) is entered into as of April 16, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and                      (“Shareholder”). Certain capitalized terms used in this Agreement are defined in Section 1.

RECITALS

A. Shareholder is a holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things: (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares.

C. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement.

(b) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(c) “Expiration Time” shall mean the earliest to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; (ii) the Acceptance Time; or (iii) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion.

(d) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(e) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(f) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(g) “Tender Period” shall mean the period commencing on the date of this Agreement and ending on the date that is 19 business days following the Offer Commencement Date (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act).

(h) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period commencing on the date of this Agreement and ending as of the Expiration Time (the “Effective Period”), Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder who is an individual to any member of Shareholder’s immediate family, to a trust for the benefit of Shareholder or any member of Shareholder’s immediate family or to Shareholder’s heirs and assigns upon Shareholder’s death; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and to deliver or cause to be delivered the proxies described in Section 4.2(a).

 

2.

2.4 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein and in the Proxy.

2.5 Restriction on Conversion of Company Shares. Shareholder shall not, on or prior to the record date for the Company Shareholders Meeting, convert or cause to be converted into Company ADSs any Company Shares Owned by Shareholder.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Unless the Expiration Time shall have occurred, Shareholder agrees to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, during the Tender Period, all of the Subject Shares Owned by Shareholder as of the date of this Agreement (free and clear of any encumbrances or restrictions), and if Shareholder acquires Ownership of any additional Subject Shares after the date of this Agreement and prior to the Expiration Time, to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, during the Tender Period, all of such additional Subject Shares (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement); provided, however, that Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall cause the Subject Securities to be voted as follows, including by instructing the Depositary to vote the Company Shares represented by any Company ADSs Owned by Shareholder:

(a) in favor of each of the transactions and other related matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

 

3.

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 Proxy; Further Assurances.

(a) Contemporaneously with the execution of this Agreement: (i) Shareholder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at all times during the Effective Period) with respect to the Company Securities referred to therein (the “Proxy”); and (ii) Shareholder shall cause to be delivered to Acquisition Sub an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding Company Securities that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Shareholder. The Shareholder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the expiration date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Shareholder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express expiration date that reasonably approximates the Expiration Time. Parent shall not use or attempt to use the Proxy or any additional proxies following the Expiration Time and shall return the Proxy and any additional proxies to Shareholder promptly following the Expiration Time.

(b) During the Effective Period, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. If Shareholder is an individual, Shareholder has the power and capacity to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. If Shareholder is an entity, Shareholder has the organizational power and authority to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of Shareholder. This Agreement and the Proxy have

 

4.

been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement and the Proxy constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. If Shareholder is a corporation, then Shareholder is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a general or limited partnership, then Shareholder is a partnership duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a limited liability company, then Shareholder is a limited liability company duly organized and validly existing under the laws of the jurisdiction in which it was organized.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) if Shareholder is an entity, any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not, require any consent or approval of any Person. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person.

5.3 Title to Securities. As of the date of this Agreement: (a) Shareholder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth under the heading “Shares Held of Record” on the signature page hereof; (b) Shareholder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof; (c) Shareholder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Shareholder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Shareholder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

 

5.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder (or, if Shareholder is an entity, any of Shareholder’s shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

 

6.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. FIDUCIARY DUTIES

If Shareholder is a director of the Company, notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or shall require Shareholder to attempt to): (a) limit or restrict Shareholder, acting in his capacity as a director of the Company, in the exercise of his fiduciary duties consistent with the terms of the Master Agreement; or (b) prevent Shareholder from taking any action in his capacity as such director.

SECTION 8. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly: (i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse, support or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and discontinue, Shareholder shall ensure that Shareholder’s Specified Representatives immediately cease and discontinue, and Shareholder shall use reasonable best efforts to cause Shareholder’s other Representatives to immediately cease and discontinue, any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding anything to the contrary in this Section 8, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

SECTION 9. MISCELLANEOUS

9.1 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement. Parent and Acquisition Sub agree to consult with Shareholder with respect to any press release or other public statement issued or made by Parent in connection with the transactions contemplated by this Agreement that identifies Shareholder, unless such press release or other public statement is consistent with any press release or public statement previously issued or made by Parent after consultation with, or with the permission of, Shareholder.

 

7.

9.2 Further Assurances. From time to time and without additional consideration, Shareholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Acquisition Sub may reasonably request for the purpose of fulfilling Shareholder’s obligations under this Agreement.

9.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Shareholder:

at the address set forth on the signature page hereof; and

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attention: General Counsel

Facsimile: (408) 376-7513

9.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

9.5 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

 

8.

9.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

9.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.7, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

9.8 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

9.9 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

 

9.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

9.10 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

9.11 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

9.12 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

9.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

10.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

 

By

 

Title
EBAY KTA (UK) LTD.

 

By

 

Title
SHAREHOLDER

 

 

Signature

 

Printed Name
Address:  

 

 

 

 

 

Facsimile:  

 

 

Shares Held of

Record

   

ADSs Held of

Record

   

Options and Other

Rights

   

Additional Securities

Beneficially Owned

        
        
        
        
        
        

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned shareholder (“Shareholder”) of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Shareholder, with full power of substitution and resubstitution, to the full extent of Shareholder’s rights with respect to: (i) the outstanding shares of capital stock of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding American Depositary Shares of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all other shares of capital stock and/or American Depositary Shares of the Company that Shareholder may acquire on or after the date hereof. (The shares of the capital stock and American Depositary Shares of the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Shareholder with respect to any of the Shares are hereby revoked, and Shareholder agrees that no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Shareholder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Shareholder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company and to instruct the Depositary to vote the Company Shares represented by Company ADSs held by Shareholder at such meeting:

(a) in favor of each of the actions, transactions and other matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

 

1

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto in the name of Shareholder (including, without limitation, obtaining notarization of such minutes or written actions). Shareholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Shareholder (including any transferee of any of the Shares).

This proxy will automatically terminate and be of no further force or effect on July 1, 2009.

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Shareholder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

 

2

Dated: April     , 2009

 

SHAREHOLDER

 

Signature

 

Printed Name

Number of common shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

 

Signature Page to Irrevocable Proxy

EX-7.3 3 dex73.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.3

EXECUTION VERSION

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT(“Agreement”) is entered into as of April 16, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and INTERPARK CORPORATION (“Shareholder”). Certain capitalized terms used in this Agreement are defined in Section 1.

RECITALS

A. Shareholder is a holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things: (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares.

C. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement; and Parent and Acquisition Sub have agreed to the covenant contained in Section 7 in order to induce Shareholder to enter into and perform Shareholder’s obligations under this Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement.

(b) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(c) “Expiration Time” shall mean the earliest to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; (ii) the Acceptance Time; (iii) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; or (iv) 11:59 pm in Seoul, Korea on any date after the 75th day following the date of this Agreement that Shareholder provides written notice to Parent of the termination of this Agreement.

(d) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(e) “Specified Waiver” shall mean that certain Waiver executed by the Company and Shareholder in connection with the Offer with respect to Sections 2.1 and 5.1 of the Shareholders’ Agreement.

(f) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(g) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(h) “Tender Period” shall mean the period commencing on the date of this Agreement and ending on the date that is 19 business days following the Offer Commencement Date (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act).

(i) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security; provided, however, that “Transfer” shall not include: (A) any agreements entered into by Shareholder to reduce the effect of any foreign exchange fluctuations in the South Korean Won/U.S. Dollar exchange rate in connection with the transactions contemplated by this Agreement (“Hedging Transactions”), including the grant of a future security interest to a financial institution(s) on the Subject Shares (or the depositary receipts representing Subject Shares) in connection with any Hedging Transactions, in any case as long as no such security interest (and no sale, transfer or other disposition of any Subject Shares (or the depositary receipts representing Subject Shares)) will become effective until the Expiration Time, unless this Agreement is terminated or the Offer otherwise fails to be consummated (a “Permitted Security Interest”); or (B) the mere conversion by Shareholder of Company Shares into the same number of Company ADSs. In addition, references to “encumbrances” and “restrictions” in this Agreement shall be deemed not to include any Hedging Transaction or Permitted Security Interest.

 

2.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period commencing on the date of this Agreement and ending as of the Expiration Time (the “Effective Period”), Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder who is an individual to any member of Shareholder’s immediate family, to a trust for the benefit of Shareholder or any member of Shareholder’s immediate family or to Shareholder’s heirs and assigns upon Shareholder’s death; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and to deliver or cause to be delivered the proxies described in Section 4.2(a).

2.4 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein and in the Proxy.

2.5 Restriction on Conversion of Company Shares. Shareholder shall not, on or prior to the record date for the Company Shareholders Meeting, convert or cause to be converted into Company ADSs any Company Shares Owned by Shareholder.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Unless the Expiration Time shall have occurred, Shareholder agrees to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, during the Tender Period, all of the Subject Shares Owned by Shareholder as of the date of this Agreement (free and clear of any encumbrances or restrictions), and if Shareholder acquires Ownership of any additional Subject Shares after the date of this Agreement and prior to the Expiration Time, to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, during the Tender Period, all of such additional Subject Shares (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement); provided, however, that: Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

 

3.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall cause the Subject Securities to be voted as follows, including by instructing the Depositary to vote the Company Shares represented by any Company ADSs Owned by Shareholder:

(a) in favor of each of the transactions and other related matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 Proxy; Further Assurances.

(a) Contemporaneously with the execution of this Agreement: (i) Shareholder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at all times during the Effective Period) with respect to the Company Securities referred to therein (the “Proxy”); and (ii) Shareholder shall cause to be delivered to Acquisition Sub an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding Company Securities that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Shareholder. The Shareholder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the expiration date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Shareholder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express expiration date that reasonably approximates the Expiration Time. Parent shall not use or attempt to use the Proxy or any additional proxies following the Expiration Time and shall return the Proxy and any additional proxies to Shareholder promptly following the Expiration Time.

 

4.

(b) During the Effective Period, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. If Shareholder is an individual, Shareholder has the power and capacity to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. If Shareholder is an entity, Shareholder has the organizational power and authority to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of Shareholder. This Agreement and the Proxy have been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement and the Proxy constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. If Shareholder is a corporation, then Shareholder is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a general or limited partnership, then Shareholder is a partnership duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a limited liability company, then Shareholder is a limited liability company duly organized and validly existing under the laws of the jurisdiction in which it was organized.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) if Shareholder is an entity, any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not, require any consent or approval of any Person. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person.

 

5.

5.3 Title to Securities. As of the date of this Agreement: (a) Shareholder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth under the heading “Shares Held of Record” on the signature page hereof; (b) Shareholder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof; (c) Shareholder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Shareholder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Shareholder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder (or, if Shareholder is an entity, any of Shareholder’s shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

 

6.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. CERTAIN SHAREHOLDER RIGHTS

Shareholder and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC (and Parent shall take into account and reflect in the Offer Documents (including in any amendment or supplement thereto) the reasonable comments of Shareholder and its counsel. Parent and Acquisition Sub shall promptly provide Shareholder and its counsel with a copy or a description of any comments received by Parent, Acquisition Sub or their counsel from the SEC or its staff with respect to the Offer Documents.

SECTION 8. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly: (i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse, support or recommend any

 

7.

Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and discontinue, Shareholder shall ensure that Shareholder’s Specified Representatives immediately cease and discontinue, and Shareholder shall use reasonable best efforts to cause Shareholder’s other Representatives to immediately cease and discontinue, any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding anything to the contrary in this Section 8, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

SECTION 9. MISCELLANEOUS

9.1 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement. Parent and Acquisition Sub agree to consult with Shareholder with respect to any press release or other public statement issued or made by Parent in connection with the transactions contemplated by this Agreement that identifies Shareholder, unless such press release or other public statement is consistent with any press release or public statement previously issued or made by Parent after consultation with, or with the permission of, Shareholder.

9.2 Further Assurances. From time to time and without additional consideration, Shareholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Acquisition Sub may reasonably request for the purpose of fulfilling Shareholder’s obligations under this Agreement.

9.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Shareholder:

at the address set forth on the signature page hereof

with a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati, P.C.

650 Page Mill Road

Palo Alto, California 94304

Attention: Lawrence Chu, Yoichiro Taku

Facsimile: (650) 493-6811

 

8.

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attention: General Counsel

Facsimile: (408) 376-7513

9.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

9.5 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

9.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

9.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or

 

9.

threatened breach by another party of any covenant or obligation contained in this Agreement (including, without limitation, Section 7) or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.7, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

9.8 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

9.9 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

9.10 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

9.11 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

9.12 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right,

 

10.

privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

9.13 Specified Waiver. During the Effective Period, Shareholder shall not amend or terminate any provision of the Specified Waiver without the prior written consent of Parent.

9.14 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

11.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ LORRIE M. NORRINGTON

By

President, eBay Marketplaces

Title

EBAY KTA (UK) LTD.

/s/ JAY C. CLEMENS

By

Director

Title

SHAREHOLDER

 

Signature

 

Printed Name

Address:

  

 

Facsimile:

  

 

 

Shares Held of

Record

  

ADSs Held of

Record

  

Options and Other

Rights

  

Additional Securities

Beneficially Owned

     

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

 

By

 

Title

EBAY KTA (UK) LTD.

 

By

 

Title

SHAREHOLDER

INTERPARK CORPORATION

BY:

  

/s/ Ki-Hyung Lee

Signature

Ki-Hyung Lee

Printed Name

Address:

Interpark Corporation

8th Floor, NamSeoul Bldg.

1304-3, Seocho-dong, Seocho-gu

Seoul, Korea

Attention:  Mr. Dong-Hwa kang

Facsimile: +82 2-538 3208

 

Shares Held of

Record

    ADSs Held of
Record		    Options and Other
Rights		    Additional Securities
Beneficially Owned

14,599,900*

         

 

* 5,000,000 Company Shares are subject to a pledge to Woori bank and 3,000,000 Company Shares are subject to a pledge to Citibank.

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned shareholder (“Shareholder”) of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Shareholder, with full power of substitution and resubstitution, to the full extent of Shareholder’s rights with respect to: (i) the outstanding shares of capital stock of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding American Depositary Shares of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all other shares of capital stock and/or American Depositary Shares of the Company that Shareholder may acquire on or after the date hereof. (The shares of the capital stock and American Depositary Shares of the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Shareholder with respect to any of the Shares are hereby revoked, and Shareholder agrees that no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Shareholder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Shareholder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company and to instruct the Depositary to vote the Company Shares represented by Company ADSs held by Shareholder at such meeting:

(a) in favor of each of the actions, transactions and other matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

 

1

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto in the name of Shareholder (including, without limitation, obtaining notarization of such minutes or written actions). Shareholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Shareholder (including any transferee of any of the Shares).

This proxy will automatically terminate and be of no further force or effect on July 1, 2009.

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Shareholder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

[Remainder of page intentionally left blank]

 

2

Dated: April     , 2009

 

SHAREHOLDER
BY:  

 

Signature

 

Printed Name
Number of common shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

 

Signature Page to Irrevocable Proxy

EX-7.4 4 dex74.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.4

EXECUTION VERSION

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT (“Agreement”) is entered into as of April 16, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and KI-HYUNG LEE (“Shareholder”). Certain capitalized terms used in this Agreement are defined in Section 1.

RECITALS

A. Shareholder is a holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things: (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares.

C. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement; and Parent and Acquisition Sub have agreed to the covenant contained in Section 7 in order to induce Shareholder to enter into and perform Shareholder’s obligations under this Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement.

(b) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(c) “Expiration Time” shall mean the earliest to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; (ii) the Acceptance Time; (iii) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; or (iv) 11:59 pm in Seoul, Korea on any date after the 75th day following the date of this Agreement that Shareholder provides written notice to Parent of the termination of this Agreement.

(d) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(e) “SPA” shall mean the agreement identified on Schedule 1(e).

(f) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(g) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(h) “Tender Period” shall mean the period commencing on the date of this Agreement and ending on the date that is 19 business days following the Offer Commencement Date (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act).

(i) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security; provided, however, that “Transfer” shall not include: (A) any agreements entered into by Shareholder to reduce the effect of any foreign exchange fluctuations in the South Korean Won/U.S. Dollar exchange rate in connection with the transactions contemplated by this Agreement (“Hedging Transactions”), including the grant of a future security interest to a financial institution(s) on the Subject Shares (or the depositary receipts representing Subject Shares) in connection with any Hedging Transactions, in any case as long as no such security interest (and no sale, transfer or other disposition of any Subject Shares (or the depositary receipts representing Subject Shares)) will become effective until the Expiration Time, unless this Agreement is terminated or the Offer otherwise fails to be consummated (a “Permitted Security Interest”); or (B) the mere conversion by Shareholder of Company Shares into the same number of Company ADSs. In addition, references to “encumbrances” and “restrictions” in this Agreement shall be deemed not to include any Hedging Transaction or Permitted Security Interest.

 

2.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period commencing on the date of this Agreement and ending as of the Expiration Time (the “Effective Period”), Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder who is an individual to any member of Shareholder’s immediate family, to a trust for the benefit of Shareholder or any member of Shareholder’s immediate family or to Shareholder’s heirs and assigns upon Shareholder’s death; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, or the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and to deliver or cause to be delivered delivers or causes to be delivered to Acquisition Sub concurrent with such Transfer notice to Parent and Acquisition Sub that such Transfer has occurred, together with reasonable detail about the Transfer, and, if applicable, the proxies described in Section 4.2(a).

2.4 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein and in the Proxy.

2.5 Restriction on Conversion of Company Shares. Shareholder shall not, on or prior to the record date for the Company Shareholders Meeting, convert or cause to be converted into Company ADSs any Company Shares Owned by Shareholder.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Unless the Expiration Time shall have occurred, Shareholder agrees to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, during the Tender Period, all of the Subject Shares Owned by Shareholder as of the date of this Agreement (free and clear of any encumbrances or restrictions), and if Shareholder acquires Ownership of any additional Subject Shares after the date of this Agreement and prior to the Expiration Time or exercises the option to acquire Company ADSs contained in the SPA, to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, during the Tender Period, all of such additional Subject Shares or Subject Shares acquired upon exercise of such option (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement); provided, however, that Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

 

3.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall cause the Subject Securities to be voted as follows, including by instructing the Depositary to vote the Company Shares represented by any Company ADSs Owned by Shareholder:

(a) in favor of each of the transactions and other related matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 Proxy; Further Assurances.

(a) Contemporaneously with the execution of this Agreement, Shareholder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at all times during the Effective Period) with respect to the Company Securities referred to therein (the “Proxy”). Within five business days following the date of this Agreement, Shareholder shall cause to be delivered to Acquisition Sub an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding Company Securities that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Shareholder. The Shareholder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the expiration date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Shareholder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express

 

4.

expiration date that reasonably approximates the Expiration Time. Parent shall not use or attempt to use the Proxy or any additional proxies following the Expiration Time and shall return the Proxy and any additional proxies to Shareholder promptly following the Expiration Time.

(b) During the Effective Period, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. If Shareholder is an individual, Shareholder has the power and capacity to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. If Shareholder is an entity, Shareholder has the organizational power and authority to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of Shareholder. This Agreement and the Proxy have been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement and the Proxy constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. If Shareholder is a corporation, then Shareholder is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a general or limited partnership, then Shareholder is a partnership duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a limited liability company, then Shareholder is a limited liability company duly organized and validly existing under the laws of the jurisdiction in which it was organized.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) if Shareholder is an entity, any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not, require any consent or approval of any Person. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii)

 

5.

with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person.

5.3 Title to Securities. As of the date of this Agreement: (a) Shareholder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth under the heading “Shares Held of Record” on the signature page hereof; (b) Shareholder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof; (c) Shareholder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Shareholder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Shareholder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder (or, if Shareholder is an entity, any of Shareholder’s shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 SPA. Assuming the authorized and due execution and delivery of the SPA by the other parties thereto, the SPA constitutes a valid and legally binding obligation of Shareholder, enforceable against Shareholder in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. The Seller’s Option (as defined in the SPA) granted to Shareholder in Section 9.2 of the SPA represents a security that is immediately exercisable for Subject Securities.

5.6 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of

 

6.

Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. CERTAIN SHAREHOLDER RIGHTS

Shareholder and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC (and Parent shall take into account and reflect in the Offer Documents (including in any amendment or supplement thereto) the reasonable comments of Shareholder and its counsel. Parent and Acquisition Sub shall promptly provide Shareholder and its counsel with a copy or a description of any comments received by Parent, Acquisition Sub or their counsel from the SEC or its staff with respect to the Offer Documents.

 

7.

SECTION 8. FIDUCIARY DUTIES

Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or shall require Shareholder to attempt to): (a) limit or restrict Shareholder, acting in his capacity as a director of the Company, in the exercise of his fiduciary duties consistent with the terms of the Master Agreement; or (b) prevent Shareholder from taking any action in his capacity as such director.

SECTION 9. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly: (i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse, support or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and discontinue, Shareholder shall ensure that Shareholder’s Specified Representatives immediately cease and discontinue, and Shareholder shall use reasonable best efforts to cause Shareholder’s other Representatives to immediately cease and discontinue, any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding anything to the contrary in this Section 9, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

SECTION 10. MISCELLANEOUS

10.1 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement. Parent and Acquisition Sub agree to consult with Shareholder with respect to any press release or other public statement issued or made by Parent in connection with the transactions contemplated by this Agreement that identifies Shareholder, unless such press release or other public statement is consistent with any press release or public statement previously issued or made by Parent after consultation with, or with the permission of, Shareholder.

10.2 Further Assurances. From time to time and without additional consideration, Shareholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Acquisition Sub may reasonably request for the purpose of fulfilling Shareholder’s obligations under this Agreement.

10.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

 

8.

if to Shareholder:

at the address set forth on the signature page hereof;

with a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati, P.C.

650 Page Mill Road

Palo Alto, California 94304

Attention: Lawrence Chu, Yoichiro Taku

Facsimile: (650) 493-6811

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attention: General Counsel

Facsimile: (408) 376-7513

10.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

10.5 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

10.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any affiliate of Parent

 

9.

or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

10.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement (including, without limitation, Section 7) or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10.7, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

10.8 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

10.9 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

 

10.

10.10 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

10.11 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

10.12 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

10.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

11.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ LORRIE M. NORRINGTON

By

President, eBay Marketplaces

Title
EBAY KTA (UK) LTD.

/s/ JAY C. CLEMENS

By

Director

Title
SHAREHOLDER

    

Signature

    

Printed Name
Address:  

 

Facsimile:  

 

 

Shares Held of

Record

   

ADSs Held of

Record

   

Options and Other

Rights

   

Additional Securities

Beneficially Owned

        
        
        
        
        
        

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

    

By

    

Title
EBAY KTA (UK) LTD.

    

By

    

Title
SHAREHOLDER
KI-HYUNG LEE

/s/ Ki-Hyung Lee

Signature

Ki-Hyung Lee

Printed Name
Address:

c/o Interpark Corporation

8th Floor, NamSeoul Bldg.

1304-3, Seocho-dong, Seocho-gu

Seoul, Korea

Attention:   Mr. Dong-Hwa Kang
Facsimile:   +82 2-538 3208

 

Shares Held of

Record

   

ADSs Held of

Record

   

Options and Other

Rights

   

Additional Securities

Beneficially Owned

1,400,00    1,215,500    Shareholder has rights under the SPA including an option to purchase up to 800,000 Company ADSs.    Shareholder indirectly holds 20,050 Company shares held by family members and, in his capacity as Chief Executive Officer and Chairman of the Board of Interpark Corporation, indirectly holds 14,599,900 Company shares held by Interpark Corporation.

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned (“Shareholder”) holder of common shares, par value KRW 100 per share (“Company Shares”) of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”), and/or American Depositary Shares, each representing one Common Share (“Company ADSs”) hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Shareholder, with full power of substitution and resubstitution, to the full extent of Shareholder’s rights with respect to: (i) the outstanding Company Shares owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding Company ADSs owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all Company Shares, Company ADSs and/or other shares of capital stock or and/or equity ownership interest in the Company that Shareholder may acquire on or after the date hereof. (The Company Shares, Company ADSs, shares of capital stock and/or other equity ownership interest in the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Shareholder with respect to any of the Shares are hereby revoked, and Shareholder agrees that no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Shareholder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Shareholder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company and to instruct the Depositary to vote the Company Shares represented by Company ADSs held by Shareholder at such meeting:

(a) in favor of each of the actions, transactions and other matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto in the name of Shareholder (including, without limitation, obtaining notarization of such minutes or written actions). Shareholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Shareholder (including any transferee of any of the Shares).

This proxy will automatically terminate and be of no further force or effect on July 1, 2009.

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Shareholder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

[Remainder of page intentionally left blank]

Dated: April     , 2009

 

SHAREHOLDER

   

Signature

   

Printed Name
Number of common shares of the Company owned of record as of the date of this proxy:

   

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

   

Signature Page to Irrevocable Proxy

EX-7.5 5 dex75.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.5

EXECUTION COPY

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT (“Agreement”) is entered into as of April 15, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and KB INVESTMENT & SECURITIES CO., LTD., a corporation organized and existing under the laws of Korea (“Option Holder”). Certain capitalized terms used in this Agreement are defined in Section 1.

RECITALS

A. Option Holder is a holder of an option (the “Arranger’s Option”), pursuant to and in accordance with the terms of the SPA, to purchase up to 200,000 Company ADSs of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things: (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares.

C. Option Holder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement or the SPA.

(b) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(c) “Expiration Time” shall mean the earliest to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; (ii) the Acceptance Time; or (iii) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Option Holder in Option Holder’s sole discretion.

(d) Option Holder shall be deemed to “Own” or to have acquired “Ownership” of a security if Option Holder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(e) “SPA” shall have the meaning specified in Schedule I.

(f) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Option Holder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Option Holder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(g) “Subject Shares” shall mean: (i) all Company Securities Owned by Option Holder as of the date of this Agreement; and (ii) all additional Company Securities of which Option Holder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(h) A Person shall be deemed to have effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. During the period commencing on the date of this Agreement and ending as of the Expiration Time (the “Effective Period”), Option Holder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Option Holder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Option Holder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Option Holder in the voting of any of the Subject Securities, except as otherwise provided herein and in the Proxy.

 

2.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Unless the Expiration Time shall have occurred, if Option Holder exercises the Arranger’s Option or otherwise acquires Ownership of any Subject Shares after the date of this Agreement and prior to the Expiration Time, Option Holder agrees to promptly (and, in any event, not later than the later of: (a) two Business Days after Option Holder acquires Ownership of such additional Subject Shares or exercise such option; and (b) 10 days after the Offer Commencement Date) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, all of such Subject Shares acquired upon exercise of the Arranger’s Option or otherwise (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement). Option Holder shall not be required, for purposes of this Agreement, to exercise the Arranger’s Option.

3.2 No Withdrawal. Option Holder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

3.3 Conditional Obligation. Option Holder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Option Holder, is subject to the terms and conditions of the Master Agreement and the Offer.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Option Holder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Option Holder shall cause the Subject Securities to be voted as follows, including by instructing the Depositary to vote the Company Shares represented by any Company ADSs Owned by Option Holder:

(a) in favor of each of the transactions and other related matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Option Holder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

 

3.

4.2 Proxy; Further Assurances.

(a) Contemporaneously with the execution of this Agreement, Option Holder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at all times during the Effective Period) with respect to the Company Securities referred to therein (the “Proxy”). Option Holder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the expiration date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Option Holder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express expiration date that reasonably approximates the Expiration Time. Parent shall not use or attempt to use the Proxy or any additional proxies following the Expiration Time and shall return the Proxy and any additional proxies to Option Holder promptly following the Expiration Time.

(b) During the Effective Period, Option Holder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Option Holder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF OPTION HOLDER

Option Holder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. Option Holder has the organizational power and authority to execute and deliver this Agreement and the Proxy and to perform Option Holder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Option Holder’s obligations hereunder by Option Holder have been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of Option Holder. This Agreement and the Proxy have been duly executed and delivered by Option Holder, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement and the Proxy constitute valid and legally binding obligations of Option Holder, enforceable against Option Holder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Option Holder is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement and the Proxy by Option Holder do not, and the performance of this Agreement and the Proxy by Option Holder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) if Option Holder is an entity, any provision of the articles of incorporation, bylaws or similar organizational documents of Option Holder; or (B) any Legal Requirement known to Option Holder and applicable to Option Holder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Option Holder is a party or by which Option Holder or any of Option Holder’s affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Option Holder to perform Option Holder’s obligations under this Agreement.

 

4.

(b) The execution and delivery of this Agreement and the Proxy by Option Holder do not, and the performance of this Agreement and the Proxy by Option Holder will not, require any consent or approval of any Person. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Option Holder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person.

5.3 Title to Securities. As of the date of this Agreement: (a) Option Holder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth under the heading “Shares Held of Record” on the signature page hereof; (b) Option Holder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof ; (c) Option Holder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements, the SPA, or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Option Holder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Option Holder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Option Holder’s knowledge, threatened against Option Holder, any of Option Holder’s shareholders, directors or officers or their equivalent, that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Option Holder to perform Option Holder’s obligations under this Agreement.

5.5 SPA. Assuming the authorized and due execution and delivery of the SPA by the other parties thereto, the SPA constitutes a valid and legally binding obligation of Option Holder, enforceable against Option Holder in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. The Arranger’s Option granted to Option Holder pursuant to Section 9.1 of the SPA represents a security that is immediately exercisable for Subject Shares.

5.6 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Option Holder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent

 

5.

and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. NO SOLICITATION

Option Holder agrees that, during the Effective Period, Option Holder shall not, directly or indirectly: (i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse, support or recommend

 

6.

any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Option Holder shall immediately cease and discontinue, Option Holder shall ensure that Option Holder’s Specified Representatives immediately cease and discontinue, Option Holder shall use reasonable best efforts to cause Option Holder’s other Representatives to immediately cease and discontinue, any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding anything to the contrary in this Section 7, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Option Holder and Option Holder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

SECTION 8. MISCELLANEOUS

8.1 Option Holder Information. Option Holder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Option Holder’s identity and ownership of Company Securities and the nature of Option Holder’s commitments, arrangements and understandings under this Agreement.

8.2 Further Assurances. From time to time and without additional consideration, Option Holder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Acquisition Sub may reasonably request for the purpose of fulfilling Option Holder’s obligations under this Agreement.

8.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Option Holder:

at the address set forth on the signature page hereof; and

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attention: General Counsel

Fax: (408) 376-7513

8.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation

 

7.

or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

8.5 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

8.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Option Holder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Option Holder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Option Holder, Parent, Acquisition Sub and their respective successors and assigns and shall inure to the benefit of Option Holder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

8.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement (including, without limitation, Section 7) or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.7, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

8.8 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this

 

8.

Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

8.9 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

8.10 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

8.11 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

8.12 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

8.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

 

9.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

10.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ LORRIE M. NORRINGTON

By

President, eBay Marketplaces

Title
EBAY KTA (UK) LTD.

/s/ JAY C. CLEMENS

By

Director

Title
SHAREHOLDER

 

Signature

 

Printed Name
Address:  

 

Facsimile:  

 

 

Shares Held of

Record

  

ADSs Held of

Record

  

Options and Other

Rights

  

Additional Securities

Beneficially Owned

     

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.
By:  

 

Title:  

 

EBAY KTA (UK) LTD.
By:  

 

Title:  

 

OPTION HOLDER:
KB INVESTMENT & SECURITIES CO., LTD.
By:  

/s/ Minsup Lee

  Minsup Lee / Senior Managing Director
Address:  

5F, Youl-chon Bldg., 24-1

 

Yuido-dong, Youngdungpo-gu

 

Seoul, 150-877, Korea

Facsimile:  

822-3777-8123

 

Shares Held of

Record

  

ADSs Held of

Record

  

Options and Other

Rights

  

Additional Securities

Beneficially Owned

    200,000  

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned (“Option Holder”), holder of an option to acquire American Depositary Shares (“Company ADSs”), each representing one common share, par value KRW 100 per share (“Common Share”), of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”) hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Option Holder, with full power of substitution and resubstitution, to the full extent of Option Holder’s rights with respect to: (i) the outstanding Company Shares owned of record by Option Holder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding Company ADSs owned of record by Option Holder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all Company Shares, Company ADSs and or other shares of capital stock and/or equity ownership interest in the Company that Option Holder may acquire on or after the date hereof. (The Company Shares, Company ADSs shares of the capital stock or other equity ownership interest in the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Option Holder with respect to any of the Shares are hereby revoked, and Option Holder agrees that no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Option Holder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Option Holder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company and to instruct the Depositary to vote the Company Shares represented by Company ADSs held by Option Holder at such meeting:

(a) in favor of each of the actions, transactions and other matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably

be expected to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto in the name of Option Holder (including, without limitation, obtaining notarization of such minutes or written actions). Option Holder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Option Holder (including any transferee of any of the Shares).

This proxy will automatically terminate and be of no further force or effect on •, 2009 [the date that is 75 days after the date of the proxy].

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Option Holder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

Dated: April     , 2009

 

OPTION HOLDER:
KB INVESTMENT & SECURITIES CO., LTD.
By:  

 

     

 

Number of Common Shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company represented by the Option owned by the Option Holder as of the date of this proxy:

 

Signature Page to Irrevocable Proxy

EX-7.6 6 dex76.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.6

EXECUTION COPY

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT (“Agreement”) is entered into as of April 15, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and Wilshire Norman Limited, a corporation organized and existing under the laws of British Virgin Islands (“Shareholder”). Certain capitalized terms used in this Agreement are defined in Section 1.

RECITALS

A. Shareholder is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of [Grocer], a company organized under the laws of the Republic of Korea (the “Company”), Controls all of the holders of record of such securities (the “Record Holders”) and can cause the Record Holders to tender and vote such securities as required by this Agreement.

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things: (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares.

C. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to such terms in the Master Agreement.

(b) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, Seoul, Korea, or Switzerland, as the case may be, are authorized or obligated by law to close.

(c) “Control” shall mean the possession directly or indirectly of the power to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by contract or otherwise.

(d) “Expiration Time” shall mean the earliest to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; (ii) the Acceptance Time; or (iii) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion.

(e) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(f) “SPA” shall have the meaning specified in Schedule I.

(g) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(h) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(i) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the period commencing on the date of this Agreement and ending as of the Expiration Time (the “Effective Period”), Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted other than to implement Section 4.1, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder pursuant to the Arranger’s Option or the Seller’s Option (as defined in Section 9 of the SPA);

provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee is party to an agreement to tender and voting agreement with Parent and Acquisition Sub or the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and delivers or causes to be delivered to Acquisition Sub concurrent with such Transfer notice to Parent and Acquisition Sub that such Transfer has occurred, together with reasonable detail about the Transfer.

2.4 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Unless the Expiration Time shall have occurred, Shareholder agrees to promptly (and, in any event, not later than 10 days after the Offer Commencement Date) validly tender or cause to be validly tendered into the Offer or cause the Record Holders to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, all of the Subject Shares Owned by Shareholder as of the date of this Agreement (free and clear of any encumbrances or restrictions) other than those Subject Securities for which a Transfer has been made in compliance with Section 2.3, and if Shareholder acquires Ownership of any additional Subject Shares after the date of this Agreement and prior to the Expiration Time, to promptly (and, in any event, not later than the later of: (a) two Business Days after Shareholder acquires Ownership of such additional Subject Shares; and (b) 10 days after the Offer Commencement Date) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Subject Shares (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement); provided, however, that Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn and shall cause the Record Holders not to withdraw any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall vote or cause the Subject Securities to be voted, whether by the Record Holders or otherwise, including by instructing the Depositary to vote the Company Shares represented by any Company ADSs Owned by Shareholder:

(a) in favor of each of the transactions and other related matters contemplated by the Master Agreement, including: (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay, postpone or materially and adversely affect any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 Further Assurances. During the Effective Period, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. If Shareholder is an individual, Shareholder has the power and capacity to execute and deliver this Agreement and to perform Shareholder’s obligations hereunder and thereunder. If Shareholder is an entity, Shareholder has the organizational power and authority to execute and deliver this Agreement and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of Shareholder. This Agreement have been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. If Shareholder is a corporation, then Shareholder is a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a general or limited partnership, then Shareholder is a partnership duly organized and validly existing under the laws of the jurisdiction in which it was organized. If Shareholder is a limited liability company, then Shareholder is a limited liability company duly organized and validly existing under the laws of the jurisdiction in which it was organized.

5.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Shareholder do not, and the performance of this Agreement by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) if Shareholder is an entity, any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement by Shareholder do not, and the performance of this Agreement by Shareholder will not, require any consent or approval of any Person. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person.

5.3 Title to Securities. As of the date of this Agreement: (a) the Record Holders Own and hold of record in the aggregate (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement or that arise under the Arranger’s Option and the Seller’s Option) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof ; and (b) neither Shareholder nor the Record Holders directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder (or, if Shareholder is an entity, any of Shareholder’s shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 SPA. Assuming the authorized and due execution and delivery of the SPA by the other parties thereto, the SPA constitutes a valid and legally binding obligation of Shareholder, enforceable against Shareholder in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. The Subject Securities Owned by Shareholder on the date of this Agreement are subject to the Arranger’s Option and the Seller’s Option, and the Arranger’s Option and the Seller’s Option are immediately exercisable for such Subject Securities.

5.6 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly: (i) solicit, initiate, induce, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse, support or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and discontinue, Shareholder shall ensure that Shareholder’s Specified Representatives immediately cease and discontinue, and Shareholder shall use reasonable best efforts to cause Shareholder’s other Representatives to immediately cease and discontinue, any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding anything to the contrary in this Section 7, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

SECTION 8. MISCELLANEOUS

8.1 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement.

8.2 Further Assurances. From time to time and without additional consideration, Shareholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Acquisition Sub may reasonably request for the purpose of fulfilling Shareholder’s obligations under this Agreement.

8.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Shareholder:

at the address set forth on the signature page hereof; and

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attention: General Counsel

Fax: (408) 376-7513

8.4 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

8.5 Entire Agreement. This Agreement, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

8.6 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

8.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement (including, without

limitation, Section 7), such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.7, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

8.8 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

8.9 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.

8.10 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

8.11 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

8.12 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this

Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

8.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ LORRIE M. NORRINGTON

By

President, eBay Marketplaces

Title
EBAY KTA (UK) LTD.

/s/ JAY C. CLEMENS

By

Director

Title
SHAREHOLDER

 

Signature

 

Printed Name
Address:  

 

 

 

 

 

Facsimile:  

 

 

Shares Held of

Record

   

ADSs Held of

Record

   

Options and Other

Rights

   

Additional Securities
Beneficially Owned

        

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.
By:  

 

Title:  

 

 

EBAY KTA (UK) LTD.
By:  

 

Title:  

 

 

SHAREHOLDER:
WILSHIRE NORMAN LIMITED
By:  

LOGO

Address:  

LOGO

 

 

 

 

 

Facsimile:

 

 

Shares Held of

Record

   

ADSs Held of

Record

   

Options and Other

Rights

   

Additional Securities

Beneficially Owned

   1,000,0001      

 

1 ADSs held of record by Controlled affiliates of Shareholder.

 

Signature Page to Agreement to Tender and Voting Agreement

EX-7.7 7 dex77.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.7

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT(“Agreement”) is entered into as of April 16, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and YAHOO! KOREA YUHAN HOESA, a company organized and existing under the laws of the Republic of Korea (“Shareholder”).

RECITALS

A. Shareholder is a holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things : (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares (the “New Shares”).

C. Substantially simultaneously with the execution of this Agreement and the Master Agreement, Interpark and Ki Hyung Lee, as shareholders of Company, will enter into an Agreement to Tender and Voting Agreement with Parent and Acquisition Sub in substantially the form provided to Shareholder, provided that the final executed agreement does not differ in any material aspect from the form provided to Shareholder (such agreement, the “Interpark Agreement to Tender”) and the Company and Interpark will enter into waivers (the “Waivers”) of the restrictions set forth in Sections 2.1 and 5.1 of the Shareholders Agreement.

D. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement.

(b) “Affiliate” with respect to the Shareholder shall mean Yahoo! Korea Corporation and any entity that directly or indirectly controls, is controlled by or is under common control with Shareholder, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person by reason of ownership of voting securities, by contract or otherwise.

(c) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(d) “Effective Period” shall mean the period commencing on the date that the Shareholder has received a fully executed copy of each of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) and ending as of the Expiration Time. For avoidance of doubt, the Effective Period shall not be deemed to commence if the Shareholder is not in receipt of a fully executed copy of any of the Master Agreement, the Interpark Agreement to Tender and the Waivers.

(e) “Expiration Time” shall have the meaning set forth in Section 8.2 of this Agreement.

(f) “Interpark” shall mean Interpark Corporation.

(g) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(h) “Shareholders Agreement” shall mean that certain Shareholders Agreement, dated June 12, 2006, by and among A. Bohl Praktijk B.V., Yahoo! Inc., Yahoo! Korea Corporation, Interpark Corporation and Gmarket, Inc.

(i) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(j) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(k) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an Affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an Affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security.

 

2.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Effective Period, Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that, other than pursuant to the Shareholders Agreement: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Notwithstanding anything to the contrary herein, Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder to an Affiliate of Shareholder; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and to deliver or cause to be delivered the proxies described in Section. 4.2(a).

2.4 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein and in the Proxy.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Within 10 days after receipt by Shareholder of fully executed copies of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder agrees, unless the Expiration Time shall have occurred, to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, all of the Subject Shares Owned by Shareholder as of date the Subject Shares are tendered pursuant to the foregoing, and if Shareholder acquires Ownership of any additional Subject Shares after the date of the initial tender of Subject Shares pursuant to the foregoing and prior to the Expiration Time, to promptly (and, in any event, not later than the later of: (a) two Business Days after Shareholder acquires Ownership of such additional Subject Shares; and (b) 10 days after the Offer Commencement Date) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Subject Shares free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement; provided, however, that Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

 

3.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer. The Offer Price will be paid in U.S. dollars.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall cause the Subject Securities to be voted:

(a) in favor of (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay or postpone any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 PROXY; FURTHER ASSURANCES.

(a) Within 10 days after receipt by Shareholder of fully executed copies of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) of this Agreement: (i) Shareholder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law with respect to the Subject Shares referred to therein (the “Proxy”); and (ii) Shareholder shall cause to be delivered to Acquisition Sub an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding Subject Shares that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Shareholder. Shareholder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the termination date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Shareholder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express expiration date that reasonably approximates the Expiration Time. The Proxies shall also terminate if the Waivers are not fully executed or validly effective and enforceable under applicable law and otherwise. Parent shall not use or attempt to use the Proxy or any additional proxies following the earlier of the time as of which either of the Waivers is no longer effective or enforceable or the Expiration Time, and shall return the Proxy and any additional proxies to Shareholder promptly following the earlier of such time or the Expiration Time.

 

4.

(b) During the Effective Period and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. Shareholder has the corporate power and authority to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary corporate action on the part of Shareholder. This Agreement and the Proxy have been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, this Agreement and the Proxy constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity.

5.2 No Conflicts or Consents.

(a) Subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, the execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement in effect as of the date hereof known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s Affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not, require any consent or approval of any Person other than the Waivers and other than have already been obtained. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person other than the Waivers.

5.3 Title to Securities. As of the date of this Agreement: (a) Shareholder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth

 

5.

under the heading “Shares Held of Record” on the signature page hereof; (b) Shareholder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof; (c) Shareholder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Shareholder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Shareholder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder or, to Shareholder’s knowledge, any of Shareholder’s directors or officers, that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents

 

6.

of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their Affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly,: (i) solicit, initiate, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any nonpublic information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to indicate to such Person that the Shareholder is subject to the restrictions set forth in this Section 7); (iv) approve, endorse, or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding the foregoing, at any time following: (A) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; (B) the modification or termination for any reason of the Interpark Agreement to Tender; or (C) the withdrawal or modification of the Company Board Recommendation in response to a Superior Offer or the recommendation of a Superior Offer to the Company’s shareholders, the Shareholder shall be permitted to engage in discussions and negotiations with any Person with respect to the Shareholder’s willingness to enter into an agreement with respect to the Superior Offer similar to this Agreement. Notwithstanding anything to the contrary in this Section 7, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

 

7.

SECTION 8. MISCELLANEOUS

8.1 Notices of Master Agreement, Interpark Agreement to Tender and Waivers.

(a) Upon the execution by all parties thereto of the Master Agreement, Interpark Agreement to Tender and Waivers, Parent shall provide a fully executed copy of the Master Agreement, Interpark Agreement to Tender and (to the extent not previously provided) each Waiver promptly (and in no event later than 48 hours after execution of each such document) to Shareholder.

(b) If any of the Master Agreement, Interpark Agreement to Tender or Waivers is modified or terminated for any reason and Parent becomes aware of any such modification or termination, Parent shall provide notice of such modification or termination promptly (and in no event later than 48 hours after each such modification or termination or if Parent is not a party to any Waiver that is modified or terminated, no later than 48 hours after Parent becomes aware of such modification or termination) to Shareholder.

8.2 Termination. This Agreement shall terminate automatically, without any notice or action by any party, upon the earlier to occur of: (a) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; and (b) the Acceptance Time. The Shareholder shall also have the right to immediately terminate this Agreement upon written notice to Parent at any time following: (i) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; (ii) the modification or termination for any reason of the Interpark Agreement to Tender; or (iii) the withdrawal or modification of the Company Board Recommendation in response to a Superior Offer or the recommendation of a Superior Offer to the Company’s shareholders. The date of any termination of this Agreement in accordance with this Section 8.2 shall be referred to herein as the “Expiration Time”.

8.3 Waiver of Provisions of Shareholders Agreement. Shareholder, on behalf of itself and on behalf of each of its Affiliates, hereby unconditionally and irrevocably waives (and agrees to cause each of its Affiliates to unconditionally and irrevocably waive) all of the rights and privileges that Shareholder or any of its Affiliates may have pursuant to the Shareholders Agreement (including, for the avoidance of doubt, the rights contained in Sections 3.4 and Section 4.1 of the Shareholders Agreement) that may be triggered in connection with: (a) the execution, delivery and performance of the Master Agreement and any of the other agreements, certificates or documents referred to in the Master Agreement; or (b) the consummation of the transactions contemplated by the Master Agreement, including the issuance of the New Shares and the commencement of, and the consummation of, the Offer. The waiver in this Section 8.3 (and the obligation of Shareholder to cause its Affiliates to waive) will be effective until the earlier to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; or (ii) the Shareholder’s termination of this Agreement pursuant to Section 8.2.

8.4 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement. Parent and Acquisition Sub agree to consult with Shareholder with respect to any

 

8.

press release or other public statement issued or made by Parent in connection with the transactions contemplated by this Agreement that identifies Shareholder, unless such press release or other public statement is consistent with any press release or public statement previously issued or made by Parent after consultation with, or with the permission of, Shareholder.

8.5 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Shareholder:

at the address set forth on the signature page hereof; and

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attn: General Counsel

Fax: (408) 376-7513

8.6 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

8.7 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

8.8 Assignment; Binding Effect. Except as provided herein (including Section 2.3), neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent

 

9.

or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any Affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such Affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

8.9 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.9, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

8.10 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

8.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

 

10.

8.12 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

8.13 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

8.14 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

8.15 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

11.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ Lorrie M. Norrington

By

President, eBay Marketplaces

Title
EBAY KTA (UK) LTD.

/s/ Jay C. Clemens

By

Director

Title
SHAREHOLDER

 

Signature

 

Printed Name
Address:  

 

 

 

 

 

Facsimile:  

 

 

Shares Held of

Record

  

ADSs Held of

Record

  

Options and Other

Rights

  

Additional Securities
Beneficially Owned

     

 

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

 

By  

 

Title  
EBAY KTA (UK) LTD.

 

By  

 

Title  
YAHOO! KOREA YUHAN HOESA

/s/ Jinsoo Kim

By: Jinsoo Kim

 

Title: Representative Director

 

Address:  

Yahoo! Korea (Attn: Legal Dept.)

14th FL, JS Tower 144-19, 20

Samseong-dong, Gangnam-gu

Seoul, Korea

Facsimile:   822-2185-1375

 

Shares Held of

Record

  

ADSs Held of

Record

  

Options and Other

Rights

  

Additional Securities
Beneficially Owned

4,505,650

   -0-   -0-   -0-

 

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned shareholder (the “Shareholder”) of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK), LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Shareholder, with full power of substitution and resubstitution, to the full extent of Shareholder’s rights with respect to: (i) the outstanding shares of capital stock of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding American Depositary Shares of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all other shares of capital stock and/or American Depositary Shares of the Company that Shareholder may acquire on or after the date hereof and prior to the termination of this proxy as described below. (The shares of the capital stock and American Depositary Shares of the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Shareholder with respect to any of the Shares are hereby revoked, and Shareholder agrees that, prior to the termination of this proxy as described below, no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Shareholder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Shareholder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company solely:

(a) in favor of each of (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected to impede, delay or postpone any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto (but only to the extent authorized under paragraphs (a) and (b) above) in the name of Shareholder (including, without limitation, obtaining notarization of such minutes or written actions). Shareholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Shareholder (including any transferee of any of the Shares).

This proxy shall terminate immediately and without notice on July 1, 2009.

 

Signature Page to Irrevocable Proxy

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Shareholder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

Dated: April     , 2009

 

YAHOO! KOREA YUHAN HOESA

 

By:

 

Title:  
Number of common shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

 

 

Signature Page to Irrevocable Proxy

EX-7.8 8 dex78.htm AGREEMENT TO TENDER AND VOTING AGREEMENT DATED AS OF APRIL 16, 2009 Agreement to Tender and Voting Agreement dated as of April 16, 2009

Exhibit 7.8

AGREEMENT TO TENDER AND VOTING AGREEMENT

THIS AGREEMENT TO TENDER AND VOTING AGREEMENT (“Agreement”) is entered into as of April 16, 2009, by and among EBAY INC., a Delaware corporation (“Parent”), EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom and an indirect wholly-owned subsidiary of Parent (“Acquisition Sub”), and YAHOO! INC., a corporation organized and existing under the laws of the State of Delaware (“Shareholder”).

RECITALS

A. Shareholder is a holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain securities of Gmarket Inc., a company organized under the laws of the Republic of Korea (the “Company”).

B. Parent, Acquisition Sub and the Company are entering into a Share Allocation and Tender Offer Agreement of even date herewith (the “Master Agreement”) which provides (subject to the conditions set forth therein) for Acquisition Sub to acquire shares of capital stock of the Company by, among other things : (i) making a tender offer as contemplated by the Master Agreement (the “Offer”) for all of the issued and outstanding Company Securities at a price of US$24.00 (as may be adjusted pursuant to the Master Agreement) per Company Security; and (ii) by subscribing to newly-issued Company Shares (the “New Shares”).

C. Substantially simultaneously with the execution of this Agreement and the Master Agreement, Interpark and Ki Hyung Lee, as shareholders of Company, will enter into an Agreement to Tender and Voting Agreement with Parent and Acquisition Sub in substantially the form provided to Shareholder, provided that the final executed agreement does not differ in any material aspect from the form provided to Shareholder (such agreement, the “Interpark Agreement to Tender”) and the Company and Interpark will enter into waivers (the “Waivers”) of the restrictions set forth in Sections 2.1 and 5.1 of the Shareholders Agreement.

D. Shareholder is entering into this Agreement in order to induce Parent and Acquisition Sub to enter into and perform their respective obligations under the Master Agreement.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. CERTAIN DEFINITIONS

For purposes of this Agreement:

(a) Capitalized terms used but not otherwise defined in this Agreement or in the Proxy shall have the meanings given to such terms in the Master Agreement.

(b) “Affiliate” with respect to the Shareholder shall mean Yahoo! Korea Corporation and any entity that directly or indirectly controls, is controlled by or is under common control with Shareholder, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person by reason of ownership of voting securities, by contract or otherwise.

(c) “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in San Francisco, California, or Seoul, Korea, as the case may be, are authorized or obligated by law to close.

(d) “Effective Period” shall mean the period commencing on the date that the Shareholder has received a fully executed copy of each of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) and ending as of the Expiration Time. For avoidance of doubt, the Effective Period shall not be deemed to commence if the Shareholder is not in receipt of a fully executed copy of any of the Master Agreement, the Interpark Agreement to Tender and the Waivers.

(e) “Expiration Time” shall have the meaning set forth in Section 8.2 of this Agreement.

(f) “Interpark” shall mean Interpark Corporation.

(g) Shareholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Shareholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(h) “Shareholders Agreement” shall mean that certain Shareholders Agreement, dated June 12, 2006, by and among A. Bohl Praktijk B.V., Yahoo! Inc., Yahoo! Korea Corporation, Interpark Corporation and Gmarket, Inc.

(i) “Subject Securities” shall mean: (i) all equity securities of the Company (including all Company Securities and all options, warrants and other rights to acquire Company Securities) Owned by Shareholder as of the date of this Agreement; and (ii) all additional equity securities of the Company (including all additional Company Securities and all additional options, warrants and other rights to acquire Company Securities) of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time.

(j) “Subject Shares” shall mean: (i) all Company Securities Owned by Shareholder as of the date of this Agreement; (ii) all additional Company Securities of which Shareholder acquires Ownership during the period from the date of this Agreement through the Expiration Time; and (iii) all Company Securities into which any of the Company Securities described in clause “(i)” or clause “(ii)” above are exchanged or converted.

(k) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Acquisition Sub or an Affiliate of Acquisition Sub (it being understood that the imposition of a workmen’s lien, tax lien or other encumbrance under applicable Legal Requirements or Orders shall not constitute a Transfer for purposes of this clause “(i)”); (ii) enters into an agreement or legally binding commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Acquisition Sub or an Affiliate of Acquisition Sub; or (iii) reduces such Person’s beneficial ownership of, interest in or risk relating to such security.

 

2.

SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Effective Period, Shareholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Effective Period, Shareholder shall ensure that, other than pursuant to the Shareholders Agreement: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities.

2.3 Permitted Transfers. Notwithstanding anything to the contrary herein, Section 2.1 shall not prohibit a Transfer of Subject Securities by Shareholder to an Affiliate of Shareholder; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Acquisition Sub, to be bound by all of the terms of this Agreement and to deliver or cause to be delivered the proxies described in Section. 4.2(a).

2.4 No Ownership Interest. Nothing contained in this Agreement or the Proxy shall be deemed to vest in Parent or Acquisition Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities, except the rights to cause the Subject Securities to be voted as provided herein and in the Proxy. All rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Shareholder, and neither Parent nor Acquisition Sub shall have authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Subject Shares, except as otherwise provided herein and in the Proxy.

SECTION 3. AGREEMENT TO TENDER

3.1 Tender of Subject Shares. Within 10 days after receipt by Shareholder of fully executed copies of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder agrees, unless the Expiration Time shall have occurred, to validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and, if applicable, Rule 14d-2 under the Securities Exchange Act of 1934, all of the Subject Shares Owned by Shareholder as of date the Subject Shares are tendered pursuant to the foregoing, and if Shareholder acquires Ownership of any additional Subject Shares after the date of the initial tender of Subject Shares pursuant to the foregoing and prior to the Expiration Time, to promptly (and, in any event, not later than the later of: (a) two Business Days after Shareholder acquires Ownership of such additional Subject Shares; and (b) 10 days after the Offer Commencement Date) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Subject Shares free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement; provided, however, that Shareholder shall not be required, for purposes of this Agreement, to exercise any unexercised Company Options held by Shareholder.

3.2 No Withdrawal. Shareholder agrees not to withdraw or cause to be withdrawn any of the Subject Shares from the Offer unless and until: (a) the Offer expires without Acquisition Sub having accepted for payment Company Securities validly tendered in the Offer or the Offer shall otherwise have been terminated in accordance with the terms of the Master Agreement; or (b) the Expiration Time.

 

3.

3.3 Conditional Obligation. Shareholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment Company Securities in the Offer, including any Subject Shares tendered by Shareholder, is subject to the terms and conditions of the Master Agreement and the Offer. The Offer Price will be paid in U.S. dollars.

SECTION 4. VOTING OF SHARES

4.1 Voting Covenant. Subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder hereby agrees that, during the Effective Period, at any meeting of the shareholders of the Company, however called, and in any action by written consent of shareholders of the Company, unless otherwise directed in writing by Acquisition Sub, Shareholder shall cause the Subject Securities to be voted:

(a) in favor of (i) the election of the Parent Designees to the Company Board in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected, to impede, delay or postpone any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

During the Effective Period, Shareholder shall not enter into any agreement or legally binding commitment with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence.

4.2 PROXY; FURTHER ASSURANCES.

(a) Within 10 days after receipt by Shareholder of fully executed copies of the Master Agreement, Interpark Agreement to Tender and Waivers in accordance with Section 8.1(a) of this Agreement: (i) Shareholder shall deliver to Acquisition Sub a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law with respect to the Subject Shares referred to therein (the “Proxy”); and (ii) Shareholder shall cause to be delivered to Acquisition Sub an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding Subject Shares that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Shareholder. Shareholder shall cause the Proxy and any additional proxies to be notarized by a notary public in the jurisdiction of such proxies are executed. The Proxy shall terminate as of the Expiration Time. If the termination date set forth in the Proxy or any additional proxy occurs prior to the Expiration Time, Shareholder shall promptly (and in no event more than two business days) following such expiration date deliver to Acquisition Sub a replacement proxy having an express expiration date that reasonably approximates the Expiration Time. The Proxies shall also terminate if the Waivers are not fully executed or validly effective and enforceable under applicable law and otherwise. Parent shall not use or attempt to use the Proxy or any additional proxies following the earlier of the time as of which either of the Waivers is no longer effective or enforceable or the Expiration Time, and shall return the Proxy and any additional proxies to Shareholder promptly following the earlier of such time or the Expiration Time.

 

4.

(b) During the Effective Period and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, Shareholder shall not enter into any tender, voting or other agreement, or grant a proxy or power of attorney, with respect to the Subject Shares that is inconsistent with this Agreement or otherwise take any other action with respect to the Subject Shares that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby.

SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER

Shareholder hereby represents and warrants to Acquisition Sub as follows:

5.1 Authorization, etc. Shareholder has the corporate power and authority to execute and deliver this Agreement and the Proxy and to perform Shareholder’s obligations hereunder and thereunder. The execution and delivery of this Agreement and the Proxy, and performance of Shareholder’s obligations hereunder, by Shareholder have been duly authorized by all necessary corporate action on the part of Shareholder. This Agreement and the Proxy have been duly executed and delivered by Shareholder, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto and subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, this Agreement and the Proxy constitute valid and legally binding obligations of Shareholder, enforceable against Shareholder in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity.

5.2 No Conflicts or Consents.

(a) Subject to the Waivers being fully and validly effective and enforceable under applicable law and otherwise, the execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the articles of incorporation, bylaws or similar organizational documents of Shareholder; or (B) any Legal Requirement in effect as of the date hereof known to Shareholder and applicable to Shareholder’s execution, delivery or performance of this Agreement; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Shareholder is a party or by which Shareholder or any of Shareholder’s Affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

(b) The execution and delivery of this Agreement and the Proxy by Shareholder do not, and the performance of this Agreement and the Proxy by Shareholder will not, require any consent or approval of any Person other than the Waivers and other than have already been obtained. The execution and delivery of any additional proxy pursuant to Section 4.2(a)(ii) with respect to any Company Securities that are owned beneficially but not of record by Shareholder do not, and the performance of any such additional proxy will not, require any consent or approval of any Person other than the Waivers.

5.3 Title to Securities. As of the date of this Agreement: (a) Shareholder holds of record (free and clear of any encumbrances or restrictions) the number of outstanding Company Shares set forth

 

5.

under the heading “Shares Held of Record” on the signature page hereof; (b) Shareholder holds of record (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the number of outstanding Company ADSs set forth under the heading “ADSs Held of Record” on the signature page hereof; (c) Shareholder holds (free and clear of any encumbrances or restrictions, other than those that arise under applicable Legal Requirements or this Agreement) the options, warrants and other rights to acquire Company Securities set forth under the heading “Options and Other Rights” on the signature page hereof; (d) Shareholder Owns the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (e) Shareholder does not directly or indirectly Own any shares of capital stock, Company ADSs or other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock, Company ADSs or other securities of the Company, other than the Company Securities and options, warrants and other rights to acquire Company Securities set forth on the signature page hereof.

5.4 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to Shareholder’s knowledge, threatened against Shareholder or, to Shareholder’s knowledge, any of Shareholder’s directors or officers, that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair in any material respect the ability of Shareholder to perform Shareholder’s obligations under this Agreement.

5.5 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 6. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB

Parent and Acquisition Sub hereby represent and warrant to Shareholder as follows:

6.1 Authorization, etc. Each of Parent and Acquisition Sub has the organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, and performance of its obligations hereunder, by each of Parent and Acquisition Sub has been duly authorized by all necessary action (corporate, organizational or otherwise) on the part of such party. This Agreement has been duly executed and delivered by each of Parent and Acquisition Sub, and, assuming the authorized and due execution and delivery of this Agreement by the other parties hereto, this Agreement constitutes valid and legally binding obligations of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with their terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditor rights generally and subject to general principles of equity. Parent and Acquisition Sub are each a corporation duly organized and validly existing under the laws of the jurisdiction in which it was organized.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not: (i) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both): (A) any provision of the certificate of incorporation, bylaws or similar organizational documents

 

6.

of Parent or Acquisition Sub; or (B) any Legal Requirement known to Parent and Acquisition Sub and applicable to the execution, delivery or performance of this Agreement by Parent and Acquisition Sub; or (ii) conflict with, or result in a violation or breach of, or default under (with or without the giving of notice or the lapse of time or both), any Contract to which Parent or Acquisition Sub is a party or by which Parent or Acquisition Sub or any of their Affiliates or properties is or may be bound or affected, in each case, that would reasonably be expected to prevent, delay or impair the ability of Parent or Acquisition Sub to perform its obligations under this Agreement.

(b) The execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the performance of this Agreement by Parent and Acquisition Sub will not, require any consent or approval of any Person, other than as will have been obtained prior to the execution and delivery or performance hereof.

6.3 Legal Proceedings As of the date of this Agreement, there is no Legal Proceeding currently pending or, to the knowledge of Parent and Acquisition Sub, threatened against Parent or Acquisition Sub (or to any of their respective shareholders, directors or officers or their equivalent), that challenges the validity of, or seeks to enjoin or restrict, the transactions contemplated by this Agreement, or that would reasonably be expected to prevent, delay or impair, in any material respect, the ability of Parent or Acquisition Sub to perform their respective obligations under this Agreement.

6.4 Accuracy of Representations. The representations and warranties contained in this Section 6 are accurate in all respects as of the date of this Agreement, and will be accurate in all respects at all times during the Effective Period as if made as of any such time (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be accurate in all respects as of such specified date).

SECTION 7. NO SOLICITATION

Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly,: (i) solicit, initiate, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any nonpublic information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or an Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to indicate to such Person that the Shareholder is subject to the restrictions set forth in this Section 7); (iv) approve, endorse, or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding the foregoing, at any time following: (A) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; (B) the modification or termination for any reason of the Interpark Agreement to Tender; or (C) the withdrawal or modification of the Company Board Recommendation in response to a Superior Offer or the recommendation of a Superior Offer to the Company’s shareholders, the Shareholder shall be permitted to engage in discussions and negotiations with any Person with respect to the Shareholder’s willingness to enter into an agreement with respect to the Superior Offer similar to this Agreement. Notwithstanding anything to the contrary in this Section 7, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) of the Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in discussions and negotiations with such third party relating to such Acquisition Proposal.

 

7.

SECTION 8. MISCELLANEOUS

8.1 Notices of Master Agreement, Interpark Agreement to Tender and Waivers.

(a) Upon the execution by all parties thereto of the Master Agreement, Interpark Agreement to Tender and Waivers, Parent shall provide a fully executed copy of the Master Agreement, Interpark Agreement to Tender and (to the extent not previously provided) each Waiver promptly (and in no event later than 48 hours after execution of each such document) to Shareholder.

(b) If any of the Master Agreement, Interpark Agreement to Tender or Waivers is modified or terminated for any reason and Parent becomes aware of any such modification or termination, Parent shall provide notice of such modification or termination promptly (and in no event later than 48 hours after each such modification or termination or if Parent is not a party to any Waiver that is modified or terminated, no later than 48 hours after Parent becomes aware of such modification or termination) to Shareholder.

8.2 Termination. This Agreement shall terminate automatically, without any notice or action by any party, upon the earlier to occur of: (a) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; and (b) the Acceptance Time. The Shareholder shall also have the right to immediately terminate this Agreement upon written notice to Parent at any time following: (i) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; (ii) the modification or termination for any reason of the Interpark Agreement to Tender; or (iii) the withdrawal or modification of the Company Board Recommendation in response to a Superior Offer or the recommendation of a Superior Offer to the Company’s shareholders. The date of any termination of this Agreement in accordance with this Section 8.2 shall be referred to herein as the “Expiration Time”.

8.3 Waiver of Provisions of Shareholders Agreement. Shareholder, on behalf of itself and on behalf of each of its Affiliates, hereby unconditionally and irrevocably waives (and agrees to cause each of its Affiliates to unconditionally and irrevocably waive) all of the rights and privileges that Shareholder or any of its Affiliates may have pursuant to the Shareholders Agreement (including, for the avoidance of doubt, the rights contained in Sections 3.4 and Section 4.1 of the Shareholders Agreement) that may be triggered in connection with: (a) the execution, delivery and performance of the Master Agreement and any of the other agreements, certificates or documents referred to in the Master Agreement; or (b) the consummation of the transactions contemplated by the Master Agreement, including the issuance of the New Shares and the commencement of, and the consummation of, the Offer. The waiver in this Section 8.3 (and the obligation of Shareholder to cause its Affiliates to waive) will be effective until the earlier to occur of: (i) the time on the date on which the Master Agreement is validly terminated in accordance with its terms; or (ii) the Shareholder’s termination of this Agreement pursuant to Section 8.2.

8.4 Shareholder Information. Shareholder hereby agrees to permit Parent and Acquisition Sub to publish and disclose in the Schedule TO or other publicly-filed documents relating to the Offer or the other transactions contemplated by the Master Agreement, Shareholder’s identity and ownership of Company Securities and the nature of Shareholder’s commitments, arrangements and understandings under this Agreement. Parent and Acquisition Sub agree to consult with Shareholder with respect to any

 

8.

press release or other public statement issued or made by Parent in connection with the transactions contemplated by this Agreement that identifies Shareholder, unless such press release or other public statement is consistent with any press release or public statement previously issued or made by Parent after consultation with, or with the permission of, Shareholder.

8.5 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three Business Days after delivery to such courier; (b) if sent by facsimile transmission, on the Business Day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:

if to Shareholder:

at the address set forth on the signature page hereof; and

if to Parent or Acquisition Sub:

eBay Inc.

2145 Hamilton Avenue

San Jose, CA 95125

Attn: General Counsel

Fax: (408) 376-7513

8.6 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

8.7 Entire Agreement. This Agreement, the Proxy, the Master Agreement and any other documents delivered by the parties in connection herewith or therewith constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon any of the parties hereto unless made in writing and signed by each of the parties.

8.8 Assignment; Binding Effect. Except as provided herein (including Section 2.3), neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Shareholder, Parent or Acquisition Sub, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void; provided, however, that the rights and obligations of Parent

 

9.

or Acquisition Sub under this Agreement may be assigned or delegated by Parent or Acquisition Sub to any Affiliate of Parent or Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of Shareholder or of any other Person, and in the event of any such assignment and/or delegation, all references in this Agreement to Parent or Acquisition Sub, as applicable, shall be deemed to instead refer to such Affiliate. Subject to the preceding sentence, this Agreement shall be binding upon Shareholder, Parent, Acquisition Sub and their respective successors and assigns (and, if Shareholder is an individual, Shareholder’s heirs, estate, executors and personal representatives) and shall inure to the benefit of Shareholder, Parent, Acquisition Sub and their respective successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Acquisition Sub and its successors and assigns) any rights or remedies of any nature.

8.9 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached. Each party hereto agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation contained in this Agreement or in the Proxy, such party shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party hereto further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.9, and each party hereto irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

8.10 Non-Exclusivity. The rights and remedies of each of the parties hereto under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of each of the parties under this Agreement, and the obligations and liabilities of each of the parties under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities under common law requirements and under all applicable statutes, rules and regulations.

8.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement and the Proxy shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof; provided, however, that any matter that, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea shall be governed exclusively by the laws of the Republic of Korea. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, each of the parties irrevocably and unconditionally consents and submits to the non-exclusive jurisdiction and venue of the courts in the State of Delaware, USA.

(b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

 

10.

8.12 Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.

8.13 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

8.14 Waiver. No failure on the part of any party to this Agreement to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party to this Agreement in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party to this Agreement shall be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

8.15 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

 

11.

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

/s/ LORRIE M. NORRINGTON

By  

President, eBay Marketplaces

Title
EBAY KTA (UK) LTD.

/s/ JAY C. CLEMENS

By  

Director

Title  
SHAREHOLDER

 

Signature

 

Printed Name
Address:  

 

Facsimile:  

 

 

Shares Held of
Record

   ADSs Held of
Record		   Options and Other
Rights		   Additional Securities
Beneficially Owned
     
     

 

Signature Page to Agreement to Tender and Voting Agreement

IN WITNESS WHEREOF, each of the parties named below have caused this Agreement to be executed as of the date first written above.

 

EBAY INC.

 

By  

 

Title  
EBAY KTA (UK) LTD.

 

By  

 

Title  
YAHOO! INC.

/s/ BLAKE JORGENSEN

By  

CFO

Title  
Address:  

701 First Avenue

Sunnyvale, CA 94089

Facsimile:   (408) 349-3301

 

Shares Held of
Record

   ADSs Held of
Record		   Options and Other
Rights		   Additional Securities
Beneficially Owned
-0-   516,311   -0-   4,505,650

 

Signature Page to Agreement to Tender and Voting Agreement

EXHIBIT A

FORM OF IRREVOCABLE PROXY

IRREVOCABLE PROXY

The undersigned shareholder (the “Shareholder”) of GMARKET INC., a corporation organized under the laws of the Republic of Korea (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes JOHN J. DONAHOE, ROBERT H. SWAN, LORRIE M. NORRINGTON, MICHAEL R. JACOBSON and EBAY KTA (UK) LTD., a company organized under the laws of the United Kingdom (“Acquisition Sub”), and each of them, the attorneys and proxies of Shareholder, with full power of substitution and resubstitution, to the full extent of Shareholder’s rights with respect to: (i) the outstanding shares of capital stock of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; (ii) the outstanding American Depositary Shares of the Company owned of record by Shareholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (iii) any and all other shares of capital stock and/or American Depositary Shares of the Company that Shareholder may acquire on or after the date hereof and prior to the termination of this proxy as described below. (The shares of the capital stock and American Depositary Shares of the Company referred to in clauses “(i)” through “(iii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by Shareholder with respect to any of the Shares are hereby revoked, and Shareholder agrees that, prior to the termination of this proxy as described below, no subsequent proxies will be given with respect to any of the Shares relating to any of the matters referred to in this proxy.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for, the Agreement to Tender and Voting Agreement, dated as of the date hereof, among eBay Inc., a Delaware corporation (“Parent”), Acquisition Sub and Shareholder (the “Agreement to Tender”), and is granted in consideration of Parent and Acquisition Sub entering into the Share Allocation and Tender Offer Agreement, dated as of the date hereof, among Parent, Acquisition Sub and the Company (the “Master Agreement”). Capitalized terms used but not otherwise defined in this proxy shall have the meanings assigned to such terms in the Agreement to Tender, or, if not defined therein, in the Master Agreement.

The attorneys and proxies named above will be empowered, and may exercise this proxy to attend and vote the Shares for and on behalf of Shareholder at any meeting of the shareholders of the Company, however called, and in connection with any written action by consent of shareholders of the Company solely:

(a) in favor of each of (i) the election of the Parent Designees to the board of directors of the Company in accordance with the terms of the Master Agreement; and (ii) the other Voting Proposals; and

(b) against the following actions (other than the transactions contemplated by the Master Agreement, including the Voting Proposals): (i) any merger, consolidation or other business combination involving the Company or any subsidiary of the Company; (ii) any Acquisition Proposal; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (iv) any change in the board of directors of the Company; (v) any amendment to the Company’s articles of incorporation, bylaws or other similar charter document; (vi) any material change in the capitalization of the Company or the Company’s corporate structure; and (vii) any other action which is intended, or would reasonably be expected to impede, delay or postpone any of the transactions contemplated by the Master Agreement or cause the Minimum Condition or any of the other Offer Conditions to not be satisfied.

 

1

The attorneys and proxies named above will also be empowered, and may exercise this proxy to prepare and execute the minutes of such meeting of the shareholders or such written action by consent of shareholders and take any and all actions relating thereto (but only to the extent authorized under paragraphs (a) and (b) above) in the name of Shareholder (including, without limitation, obtaining notarization of such minutes or written actions). Shareholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

This proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of Shareholder (including any transferee of any of the Shares).

This proxy shall terminate immediately and without notice on July 1, 2009.

 

Signature Page to Irrevocable Proxy

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, Shareholder agrees that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

Dated: April     , 2009

 

YAHOO! INC.

 

By  

 

Title  
Number of common shares of the Company owned of record as of the date of this proxy:

 

Number of American Depositary Shares of the Company owned of record as of the date of this proxy:

 

 

Signature Page to Irrevocable Proxy

EX-7.9 9 dex79.htm JOINT FILING AGREEMENT, DATED AS OF APRIL 24, 2009 Joint Filing Agreement, dated as of April 24, 2009

Exhibit 7.9

JOINT FILING AGREEMENT

Pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree, as of April 24, 2009, that only one statement containing the information required by Schedule 13D, and each amendment thereto, need be filed with respect to the beneficial ownership by each of the undersigned of common shares, par value KRW 100 per share (the “Common Shares”), and American Depositary Shares, each representing one Common Share and evidenced by an American Depositary Receipt issued by Citibank, N.A., of Gmarket Inc., a company organized under the laws of the Republic of Korea (“Gmarket”), and such statement to which this Joint Filing Agreement is attached as Exhibit 7.9 is filed on behalf of each of the undersigned.

 

EBAY INC.
By:    /s/ Brian H. Levey
  Name:   Brian H. Levey
  Title:   Vice President, Deputy General Counsel, and Assistant Secretary
EBAY KTA (UK) LTD.
By:   /s/ Jay C. Clemens
  Name:   Jay C. Clemens
  Title:   Director
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