Exhibit 1.2
[FORM OF INTERNATIONAL UNDERWRITING AGREEMENT]
[ ] American Depositary Shares
representing
[ ] Shares
ANTENNA TV S.A.
INTERNATIONAL UNDERWRITING AGREEMENT
------------------------------------
[ ],1999
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
BT ALEX. ▇▇▇▇▇ INTERNATIONAL,
a division of Bankers Trust International PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
As Lead Managers of the several
International Managers named in Schedule 1
c/▇ ▇▇▇▇▇▇ Brothers International (Europe)
One ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
Antenna TV S.A., a Greek societe anonyme (the "Company"), and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, a stockholder of the Company (the "Selling Stockholder"), propose to
sell an aggregate of [ ] American Depositary Shares representing [ ] shares of
the Company's capital stock, nominal value GRD 100 per share (the "Capital
Stock"), to the several international underwriters named in Schedule 1 hereto
(the "International Managers"). The [ ] American Depositary Shares to be sold by
the Company and the Selling Stockholder are hereinafter called the "Firm ADSs"
and the [ ] shares of Capital Stock underlying the Firm ADSs are referred to as
"Firm Shares." Of the Firm ADSs, [ ] are being sold by the Company and [ ] by
the Selling Stockholder. In addition, the Company and the Selling Stockholder
propose to grant to the International Managers an option to purchase up to an
additional [ ] ADSs on the terms and for the purposes set forth in Section 3
(the "Option ADSs") representing
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an additional [ ] shares of Capital Stock (the "Option Shares"). Of the [ ]
Option ADSs, [ ] are being sold by the Company and [ ] are being sold by the
Selling Stockholder. The Firm ADSs and the Option ADSs, if purchased, are
hereinafter collectively called the "ADSs." The Firm Shares and the Option
Shares are herein collectively referred to as the "Shares." The International
Managers shall take delivery of all of the Shares in the form of ADSs. All ADSs
which the International Managers take delivery of will be deposited with The
National Bank of Greece (the "ADS Custodian") on the First Delivery Date (as
hereinafter defined) in the case of Firm ADSs, or the Second Delivery Date (as
hereinafter defined) in the case of Option ADSs, pursuant to the deposit
agreement (the "Deposit Agreement"), dated as of [ ], 1999 among the Company,
The Bank of New York as depositary (the "Depositary") and the holders from time
to time of American Depositary Receipts (the "ADRs") issued by the Depositary
and evidencing the ADSs thereunder, a copy of which Deposit Agreement has
previously been delivered to you. This is to confirm the agreement concerning
the purchase of the ADSs from the Company and the Selling Stockholder by the
International Managers.
It is understood by all parties that the Company and the Selling
Stockholder are concurrently entering into an agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for the sale by the Company and
the Selling Stockholder of an aggregate of [ ] ADSs representing [ ] shares of
the Company's Capital Stock (including the over-allotment option thereunder)
(the "U.S. ADSs") through arrangements with certain underwriters in the United
States and Canada (the "U.S. Underwriters" and together with the International
Managers, the "Underwriters"), for whom ▇▇▇▇▇▇ Brothers Inc., BT Alex. ▇▇▇▇▇
Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. are acting as representatives (the
"Representatives"). The U.S. Underwriters shall take delivery of all of the
Shares sold in the United States and Canada in the form of ADSs. The U.S.
Underwriters and the International Managers simultaneously are entering into an
agreement between the U.S. and international underwriting syndicates (the
"Agreement Between U.S. Underwriters and International Managers") which provides
for, among other things, the transfer of ADSs between the two syndicates. Except
as used in Sections 3, 4, 5, 12, and 13 herein, and except as the context may
otherwise require, references herein to the ADSs shall include all the ADSs of
which may be sold pursuant to either this Agreement or the U.S. Underwriting
Agreement.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form F-1 (File No. 333- ), with
respect to the Shares has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rule and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
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under the Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement and the amendments thereto have
been delivered by the Company to you as the representatives (the "Lead
Managers") of the International Managers. As used in this Agreement,
"Effective Time" means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of
the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Lead Managers pursuant to
Rule 424(a) of the Rules and Regulations; "Primary Registration Statement"
means such registration statement, as amended at the Effective Time,
including all information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 6 hereof and deemed to be a part of the
registration statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means such
final prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations. If the Company has
filed a registration statement pursuant to Rule 462(b) of the Rules and
Regulations regarding additional Shares (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the
term "Primary Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) A registration statement on Form F-6 (File No. 333- ) with
respect to the ADSs evidenced by the ADRs and a post-effective amendment
thereto has (i) been prepared by or on behalf of the Depositary in
conformity with the requirements of the Securities Act and the Rules and
Regulations, (ii) been filed with the Commission under the Securities Act
and (iii) become effective under the Securities Act. Copies of such
registration statement, including all amendments thereto, have been
delivered by the Company to you as Lead Managers of the International
Managers. As used in this Agreement "ADS Registration Statement" means such
registration statement, including all exhibits thereto, as amended at the
time such post-effective amendment to the registration statement shall have
become effective.
(c) The Primary Registration Statement and the ADS Registration
Statement (collectively, the "Registration Statements") conform, and the
Prospectus and any further amendments or supplements to the Registration
Statements or the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules
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and Regulations and do not and will not, as of the applicable effective
date (as to the Registration Statements and any amendments thereto) and as
of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statements or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Lead Managers by or on behalf of any International Manager specifically for
inclusion therein.
(d) The Company, and to the best of the Company's knowledge, each of
the entities listed on Schedule A (the "Scheduled Entities"), has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company, and has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged; the Company has no direct or indirect
subsidiaries and does not own, directly or indirectly, any equity interest
or ownership interest in any other entity.
(e) The Company has, and upon completion of the offering and sale of
the ADSs will have, an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of Capital Stock of the Company
are, and upon completion of the offering and sale of the ADSs will have
been, duly and validly authorized and issued, are, and upon completion of
the offering and sale of the ADSs will have been, fully paid and non-
assessable, were not, and upon the completion of the offering and sale of
the ADSs will not be, issued in violation of, and are not now, and upon the
completion of the offering and sale of the ADSs will not be, subject to any
preemptive rights, and conform to the description thereof contained in the
Prospectus; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, any class of share capital
of the Company; the transfer of 12,409,386 shares of Capital Stock of the
Company on September 1, 1998 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Globecast Holdings Limited, Altavista
Global Holdings Limited and Praxis Global Investments Limited does not
violate any statute, rule, law or regulation, including, without
limitation, any Greek statute, rule, law or regulation, applicable to the
Company and its shareholders.
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(f) The Shares to be issued by the Company to the Underwriters
hereunder and under the U.S. Underwriting Agreement have been duly and
validly authorized and, upon deposit as contemplated herein, in the U.S.
Underwriting Agreement and in the Deposit Agreement and when the ADSs have
been issued and delivered against payment therefor as provided herein and
therein, will be duly and validly issued, fully paid and non-assessable;
the Shares conform in all material respects to the descriptions thereof
contained in the Prospectus; no further approval or authority of the
shareholders or the Board of Directors of the Company will be required for
the issuance and sale of the ADSs or the deposit of the Shares as
contemplated herein and in the Deposit Agreement; and, upon the deposit of
the Shares to be issued by the Company underlying the ADSs with the
Depositary pursuant to the Deposit Agreement against issuance of the ADRs
evidencing the ADSs, all right, title and interest in such Shares, subject
to the Deposit Agreement, will be transferred to the Depositary or its
nominee, as the case may be, free and clear of all liens, security
interests, pledges, charges, encumbrances, shareholders' agreements, voting
trusts, restrictions on transfer, preemptive rights or adverse claims;
except as otherwise described in the Prospectus, there are no preemptive or
other rights to subscribe for or to purchase, no restrictions upon the
voting or transfer of any Shares or ADSs pursuant to the Company's charter
and by laws or any agreement to which the Company is a party or by which it
may be bound or to which any of its property may be subject.
(g) The Company has full power and authority to enter into this
Agreement and the U.S. Underwriting Agreement and each of such agreements
has been duly authorized, executed and delivered by the Company.
(h) The execution, delivery and performance of this Agreement, the
U.S. Underwriting Agreement, the Deposit Agreement and the Custody
Agreement by the Company and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, (i) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the
Company is subject, (ii) the charter or by-laws of the Company or (iii) any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties or assets, other than in the case of clauses (i) and (iii), such
breaches or violations which, individually or in the aggregate, would not
have or result in a material adverse effect on the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company; and except for the
registration of the Shares and the ADSs under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may
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be required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Shares and the ADSs by the U.S. Underwriters and the International
Managers, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
U.S. Underwriting Agreement, the Deposit Agreement or the Custody Agreement
by the Company and the consummation of the transactions contemplated hereby
and thereby.
(i) The Company has full power and authority to enter into the
Deposit Agreement and the Custody Agreement and each of the Deposit
Agreement and the Custody Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by each other party thereto, constitutes a legal, valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(j) Upon the due and valid issuance by the Depositary of ADRs
evidencing ADSs against deposit of Shares in respect thereof and against
payment therefor in accordance with the provisions of this Agreement, the
U.S. Underwriting Agreement and the Deposit Agreement, such ADRs will be
duly and validly issued and the persons in whose names the ADRs are
registered will be entitled to the rights specified in the ADRs and in the
Deposit Agreement; and the Deposit Agreement, ADRs and the ADSs conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(k) Except as disclosed in the Prospectus, no stamp or other issuance
or transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the International Managers to
the United States or Greek government or any political subdivision or
taxing authority thereof or therein in connection with (i) the issuance of
the Shares by the Company, (ii) the deposit of Shares with the Depositary
against issuance of ADRs evidencing ADSs, (iii) the sale of the ADSs
representing the shares by the Company to the International Managers in
accordance with this Agreement and to the U.S. Underwriters in accordance
with the U.S. Underwriting Agreement, or (iv) the sale and delivery by the
U.S. Underwriters and the International Managers of the ADSs to the initial
purchasers thereof.
(l) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statements or in
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any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(m) Except as described in the Prospectus, the Company has not issued
any Capital Stock or securities convertible or exercisable or exchangeable
for any such securities, during the six-month period preceding the date of
the Prospectus, including without limitation any sales pursuant to Rule
144A under, or Regulations D or S of, the Securities Act.
(n) Neither the Company nor, to the best of the Company's knowledge,
any of the Scheduled Entities has sustained, since the date of the latest
audited financial statements included in the Prospectus, any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any change in the capital stock or long-term debt of the Company or, to the
best of the Company's knowledge, any of the Scheduled Entities, or any
material adverse change in or affecting the general affairs, management,
financial position, stockholders' equity, results of operations, business
or prospects of the Company or, to the best of the Company's knowledge, any
of the Scheduled Entities, otherwise than as set forth or contemplated in
the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements or
included in the Prospectus present fairly the financial condition and
results of operations of the Company purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with United States generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The summary and selected
financial data included in the Prospectus have been accurately extracted
from the financial statements of the Company and each of the Scheduled
Entities and present fairly the information shown therein and, in the case
of the Company, have been prepared and compiled on a basis consistent with
the audited financial statements included therein, except as otherwise
stated therein.
(p) KPMG Peat Marwick Kyriacou, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and who
have delivered the initial letter referred to in Section 9(h) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations during the periods covered by the financial
statements on which they reported contained in the Prospectus.
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(q) The Company, and to the best of the Company's knowledge, each of
the Scheduled Entities, has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned
by it, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Company and the
Scheduled Entities; and all real property and buildings held under lease by
the Company, and to the best of the Company's knowledge, each of the
Scheduled Entities, is held by it under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Company and the Scheduled Entities.
(r) The Company, and to the best of the Company's knowledge, each of
the Scheduled Entities, carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its
businesses and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries.
(s) The Company, and to the best of the Company's knowledge, each of
the Scheduled Entities, owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights and
licenses necessary for the conduct of its business and has no reason to
believe that the conduct of its business will conflict with, and has not
received any notice of any claim of conflict with, any such rights of
others, which if such claim of conflict were sustained, would have a
material adverse effect on the general affairs, management, financial
position, stockholders' equity, results of operations, business or
prospects of the Company.
(t) Except as set forth in the Prospectus, the Company, and to the
best of the Company's knowledge, each of the Scheduled Entities, owns,
possesses or has obtained all permits, licenses, consents, orders,
approvals, franchises and authorizations of governmental or regulatory
authorities, including, without limitation, television broadcast frequency
allocations and licenses ("Permits"), as are required to own its properties
and to conduct its business; and the Company, and to the best of the
Company's knowledge, each of the Scheduled Entities, has fulfilled and
performed in all material respects all of its obligations with respect to
such Permits and no event has occurred, or as a result of the consummation
of the transactions contemplated hereby would occur, which allows, or after
notice or lapse of time or both would allow, revocation or termination
thereof or results or would result in any other material impairment of the
rights of the holder of any such Permit; none of such Permits contains any
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material limitation on the ability of the Company, and to the best of the
Company's knowledge, any of the Scheduled Entities, to own its respective
properties or to conduct its business in the manner described in the
Prospectus; and the Company has no knowledge of a threatened revocation or
modification relating to any such Permit.
(u) All dividends and other distributions declared and payable by the
Company in respect of the Shares may under current Greek laws and
regulations be paid to shareholders or to the Depositary, as applicable, in
Greek drachmae that may be converted into U.S. currency and freely
transferred out of the Republic of Greece without the necessity of
obtaining any consents, approvals, authorizations, orders or clearances
from or registering with any government agency or body of the Republic of
Greece; and, except as set forth in the Prospectus, all such dividends and
distributions made to U.S. resident holders of ADSs will not be subject to
Greek income, withholding or other taxes under current Greek laws and
regulations.
(v) No relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, on the other hand, which is required
to be described in the Prospectus which is not so described.
(w) No labor disturbance by the employees of the Company, and to the
best of the Company's knowledge, any of the Scheduled Entities, exists or,
to the knowledge of the Company, is imminent which might be expected to
have a material adverse effect on the financial position, stockholders'
equity, results of operations, business or prospects of the Company or the
Scheduled Entities, as applicable.
(x) The Company, and to the best of the Company's knowledge, each of
the Scheduled Entities, has filed with the appropriate taxing authorities,
all tax returns, reports and other information required to be filed with
any of them through the date hereof and has paid all taxes due thereon, and
no tax deficiency has been determined adversely to the Company or, to the
best of the Company's knowledge, any of the Scheduled Entities which has
had (nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company or any of the Scheduled Entities,
might have) a material adverse effect on the general affairs, management,
financial position, stockholders' equity, results of operations, business
or prospects of the Company or, to the best of the Company's knowledge, any
of the Scheduled Entities.
(y) Since the date as of which information is given in the Prospectus
through the date hereof and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities,
including, without limitation,
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any options or warrants, (ii) incurred any liability or obligation, direct
or contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction not
in the ordinary course of business or (iv) declared or paid any dividend on
its capital stock.
(z) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) The Company, and to the best of the Company's knowledge none of
the Scheduled Entities, (i) is not in violation of its charter or by-laws,
(ii) is not in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject
and (iii) is not in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject and has not failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of
its business.
(bb) Neither the Company, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the Company, has
used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government official
or employee from corporate funds; violated or is in violation of any
provision of the United States Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(cc) The Company is not, and after giving effect to the offering and
sale of the ADSs and the application of the proceeds therefrom will not be,
an "investment company" within the meaning of such term under the United
States Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
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(dd) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company and to the
best of the Company's knowledge none of the Scheduled Entities (or, to the
knowledge of the Company, any of its predecessors in interest), at, upon or
from any of the property now or previously owned or leased by the Company
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect on
the general affairs, management, financial position, stockholders' equity,
results of operations, business or prospects of the Company; to the best
knowledge of the Company, there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or with respect to which the
Company has knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(ee) Neither the Company nor any of its properties or assets, nor to
the best of the Company's knowledge, any of the Scheduled Entities, has any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise).
(ff) To ensure the legality, validity, enforceability or admissibility
into evidence of this Agreement, the U.S. Underwriting Agreement, the
Deposit Agreement and the Custody Agreement in the Republic of Greece, it
is not necessary that any such document be submitted into, filed or
recorded with any court or other authority in the Republic of Greece or
that any tax, imposition or charge be paid in the Republic of Greece on or
in respect of any such document.
(gg) The Company has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected
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to cause or result in the stabilization or manipulation of the price of any
security of the Company in connection with the offering of the ADSs.
(hh) The Company has the power to submit, and has taken all necessary
corporate action to submit, to the jurisdiction of any United States or New
York court in the Borough of Manhattan, The City of New York, and to
approve the authorized agent for the purposes and to the extent described
in Section 19 hereof.
(ii) Except as described in the Prospectus, there are no material
acquisitions of businesses or assets by the Company or any of the Scheduled
Entities pending, contemplated or currently being negotiated.
(jj) The Company has not incurred any liability for a fee, commission,
or other compensation on account of the employment of a broker or finder in
connection with the transactions contemplated by this Agreement, the U.S.
Underwriting Agreement or the Deposit Agreement.
(kk) Based upon certain management estimates, the nature of the
Company's business and the ownership of the Company and taking into account
the receipt of proceeds from the offering and sale of the ADSs, the Company
does not expect to qualify as a passive foreign investment company ("PFIC")
as defined in Section 1296(a) of the United States Internal Revenue Code of
1986, as amended (the "Code"), or as a "foreign personal holding company"
as defined in Section 552 of the Code for its current taxable year or for
future taxable years.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately prior to the First
Delivery Date (as defined in Section 5 hereof) with respect to the Shares
and, immediately prior to the Second Delivery Date with respect to the
Option Shares, the Selling Stockholder will have, good and valid title to
the Shares to be sold by the Selling Stockholder hereunder and to the U.S.
Underwriters under the U.S. Underwriting Agreement on such dates, free and
clear of all liens, encumbrances, equities or claims; and upon the deposit
of the Shares underlying the ADSs with the Depositary pursuant to the
Deposit Agreement against issuance of the ADRs evidencing the ADSs, all
right, title and interest in such Shares, subject to the Deposit Agreement,
will be transferred to the Depositary or its nominee, as the case may be,
free and clear of all liens, security interests, pledges, charges,
encumbrances, shareholders' agreements, voting trusts, restrictions on
transfer or adverse claims.
-13-
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement") with [the Company] as custodian (the
"Custodian"), for delivery under this Agreement, duly executed stock
transfer forms together with the relevant share certificates in negotiable
form (with signature guaranteed by a commercial bank or trust company
having an office or correspondent in the United States or a member firm of
the New York or American Stock Exchanges) representing the Shares to be
sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (the "Power of Attorney") appointing [the
Custodian and one or more other persons] as attorneys-in-fact, with full
power of substitution, and with full authority (exercisable by any one or
more of them) to execute and deliver this Agreement and to take such other
action as may be necessary or desirable to carry out the provisions hereof
on behalf of the Selling Stockholder.
(d) The Selling Stockholder has full right, power and authority to
enter into this Agreement and the U.S. Underwriting Agreement, the Power of
Attorney and the Custody Agreement; the execution, delivery and performance
of this Agreement and the U.S. Underwriting Agreement, the Power of
Attorney and the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, (i) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the property or
assets of the Selling Stockholder is subject, or (ii) the provisions of any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder, other than such breaches or
violations which, individually or in the aggregate, would not have or
result in a material adverse effect on the general affairs, management,
financial position, stockholders' equity, results of operations, business
or prospects of the Company; and, except for the registration of the Shares
and the ADSs under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the ADSs by the U.S.
Underwriters and the International Managers, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement or the U.S. Underwriting Agreement, the Power
of Attorney or the Custody Agreement by the Selling Stockholder and the
consummation
-14-
by the Selling Stockholder of the transactions contemplated hereby and
thereby.
(e) The Registration Statements and the Prospectus and any further
amendments or supplements to the Registration Statements or the Prospectus
will, when they become effective or are filed with the Commission, as the
case may be, do not and will not, as of the applicable effective date (as
to the Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit
to state a material fact relating to the Selling Stockholder and required
to be stated therein or necessary to make the statements therein not
misleading.
(f) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the ADSs.
(g) Except as will be paid pursuant to Section 8 hereof or as
disclosed in the Prospectus, no stamp or other issuance or transfer taxes
or duties and no capital gains income, withholding or other taxes are
payable by or on behalf of the International Managers to the United States
or Greek government or any political subdivision or taxing authority
thereof or therein in connection with (i) the deposit of Shares with the
Depositary against issuance of ADRs evidencing ADSs to be sold to the
International Managers by the Selling Stockholder, or (ii) the sale of the
Shares and the ADSs to the International Managers by the Selling
Stockholder in the manner contemplated hereby.
(h) Neither the Selling Stockholder nor any of his properties or
assets has any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise).
3. Purchase of the ADSs by the International Managers. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell [ ] ADSs of the Firm
ADSs and the Selling Stockholder hereby agrees to sell [ ] ADSs of the Firm ADSs
to the several International Managers and each of the International Managers,
severally and not jointly, agrees to purchase the number of ADSs of the Firm
ADSs set opposite that International Manager's name in Schedule 1 hereto. Each
International Manager shall be obligated to purchase from the Company, and from
the Selling Stockholder, that number of ADSs of the Firm ADSs which represents
the same proportion of the number of ADSs of the Firm ADSs to be sold by the
-15-
Company, and by the Selling Stockholder, as the number of ADSs of the Firm ADSs
set forth opposite the name of such International Manager in Schedule 1
represents of the total number of ADSs of the Firm ADSs to be purchased by all
of the International Managers pursuant to this Agreement. The respective
purchase obligations of the International Managers with respect to the Firm ADSs
shall be rounded among the International Managers to avoid fractional ADSs, as
the Lead Managers may determine.
In addition, the Company and the Selling Stockholder grant to the
International Managers an option to purchase up to [ ] ADSs of Option ADSs.
Such option is granted for the purpose of covering over-allotments in the sale
of Firm ADSs and is exercisable as provided in Section 5 hereof. ADSs of Option
ADSs shall be purchased severally for the account of the International Managers
in proportion to the number of ADSs of Firm ADSs set opposite the name of such
International Managers in Schedule 1 hereto. The respective purchase
obligations of each International Manager with respect to the Option ADSs shall
be adjusted by the Lead Managers so that no Underwriter shall be obligated to
purchase Option ADSs other than in 100 ADS amounts. The price of both the Firm
ADSs and any Option ADSs shall be $[ ] per ADS.
The Company and the Selling Stockholder shall not be obligated to
deliver any of the ADSs to be delivered on any Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the ADSs to be
purchased on such Delivery Date as provided herein and in the U.S. Underwriting
Agreement.
4. Offering of ADSs by the International Managers. Upon authorization
by the Lead Managers of the release of the Firm ADSs, the several International
Managers propose to offer the Firm ADSs for sale upon the terms and conditions
set forth in the Prospectus. Each International Manager agrees that, except to
the extent permitted by the Agreement Between U.S. Underwriters and
International Managers, it will not offer or sell any of the ADSs in of the
United States or Canada.
5. Delivery of and Payment for the ADSs. Delivery of and payment for
the Firm ADSs shall be made at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 9:00 A.M., New York City time, on the
third full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Lead Managers and
the Company. This date and time are sometimes referred to as the "First Delivery
Date." On the First Delivery Date, the Company and the Selling Stockholder shall
deliver or cause to be delivered certificates representing the ADRs evidencing
the Firm ADSs to the Depositary for the account of each International Manager
against payment to or upon the order of the Company and the Selling Stockholder
of the purchase price by wire transfer in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further
-16-
condition of the obligation of each International Manager hereunder. Upon
delivery, the ADRs evidencing the Firm ADSs shall be registered in such names
and in such denominations as the Lead Managers shall request in writing not less
than two full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the ADRs
evidencing the Firm ADSs, the Company and the Selling Stockholder shall cause
such ADRs to be available for inspection by the Lead Managers in New York, New
York not later than 9:30 A.M., New York City time, on the business day prior to
the First Delivery Date.
The option granted in Section 3 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by the Lead Managers. Such notice
shall set forth the aggregate number of Option ADSs as to which the option is
being exercised, the names in which the ADRs evidencing the Option ADSs are to
be registered, the denominations in which the ADRs evidencing the Option ADSs
are to be issued and the date and time, as determined by the Lead Managers, when
the Option ADSs are to be delivered; provided, however, that this date and time
shall not be earlier than the First Delivery Date nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the option shall have
been exercised. The date and time the Option ADSs are delivered are sometimes
referred to as a "Second Delivery Date" and the First Delivery Date and any
Second Delivery Date are sometimes each referred to as a "Delivery Date."
Delivery of and payment for the ADRs evidencing the Option ADSs shall
be made at the place specified in the first sentence of the first paragraph of
this Section 5 (or at such other place as shall be determined by agreement
between the Lead Managers and the Company) at 9:00 A.M., New York City time, on
such Second Delivery Date. On such Second Delivery Date, the Company and the
Selling Stockholder shall deliver or cause to be delivered the certificates
representing the ADRs evidencing the Option ADSs to the Depositary for the
account of each International Manager against payment to or upon the order of
the Company and the Selling Stockholder of the purchase price by wire transfer
in immediately available funds. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of each International Manager hereunder. Upon delivery, the
ADRs evidencing the Option ADSs shall be registered in such names and in such
denominations as the Lead Managers shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option ADSs, the Company and the Selling Stockholder shall
make the certificates representing the Option ADSs available for inspection by
the Lead Managers in New York, New York, not later than 9:30 A.M., New York City
time, on the business day prior to such Second Delivery Date.
-17-
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead Managers
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to any
Registration Statement or to the Prospectus except as permitted herein; to
advise the Lead Managers, promptly after it receives notice thereof, of the
time when any amendment to any Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Lead Managers with copies
thereof, to advise the Lead Managers, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the ADSs for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statements or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to each of the Lead Managers and to counsel
for the International Managers a signed copy of each Registration Statement
as originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Lead Managers such number of the
following documents as the Lead Managers shall reasonably request: (i)
conformed copies of the Registration Statements as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
(ii) each Preliminary Prospectus, the Prospectus (not later than 10:00
a.m., New York City time, on the day following the execution and delivery
of this Agreement or if not possible, as soon thereafter as possible) and
any amended or supplemented Prospectus (not later than 10:00 a.m., New York
City time, on the day following the date of such amendment or supplement or
if not possible, as soon thereafter as possible); and, if the delivery of a
prospectus is required at any time after the Effective Time in connection
with the offering or sale of the ADSs or any other securities relating
thereto and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary
-18-
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to
notify the Lead Managers and, upon their request, to file such document and
to prepare and furnish without charge to each International Manager and to
any dealer in securities as many copies as the Lead Managers may from time
to time reasonably request of an amended or supplemented Prospectus which
will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead Managers,
be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Lead Managers and counsel for the International Managers and
obtain the consent of the Lead Managers to the filing.
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days, or if the
fourth quarter following the fiscal quarter that includes the Effective
Date is the last fiscal quarter of the Company's fiscal year, 455 days), to
make generally available to the Company's security holders and to deliver
to the Lead Managers an earnings statement of the Company (which need not
be audited) complying with Section 1l(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158).
(g) For a period of five years following the Effective Date, to
furnish to the Lead Managers copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the ADSs may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the ADSs for offering and sale
under the securities laws of such jurisdictions as the Lead Managers may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the ADSs; provided
-19-
that in connection therewith, the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction.
(i) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any Capital Stock or securities convertible into or
exchangeable for Capital Stock (other than the Capital Stock to be sold
hereunder or under the U.S. Underwriting Agreement or issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights
or warrants with respect to any Capital Stock or securities convertible
into or exchangeable for Capital Stock (other than the grant of options
pursuant to option plans existing on the date hereof), or (2) enter into
any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of
such Capital Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Capital Stock or other
securities, in cash or otherwise, in each case without the prior written
consent of ▇▇▇▇▇▇ Brothers International (Europe); and to cause ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Holnest
Investments Limited, Globecast Holdings Limited ("Globecast"), Altavista
Global Holdings Limited ("Altavista"), Praxis Global Investments Limited
("Praxis") and Efstathios Gourdomichalis to furnish to the Lead Managers,
prior to the First Delivery Date, a letter or letters (each, a "Lock-up
Letter Agreement"), in form and substance satisfactory to counsel for the
International Managers, pursuant to which each such person shall agree not
to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any Capital Stock or securities convertible into or
exchangeable for Capital Stock or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such Capital Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Capital Stock or other securities, in cash or
otherwise, in each case for a period of 180 days from the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers
International (Europe); provided, however, that the foregoing provisions
shall not apply to (A) transfers by way of testate or intestate succession
or by operation of law, (B) transfers to members of the immediate family of
such person or to a trust, partnership, limited liability company or other
entity, all of the beneficial interests of which are held by such person,
(C) transfers to charitable institutions for no consideration or (D)
transfers by any of Globecast, Altavista or Praxis to the prior registered
holders of
-20-
such shares which transfers in the opinion of counsel to the Company
reasonably acceptable to ▇▇▇▇▇▇ Brothers International (Europe) are legally
necessary in order for the Company to be in compliance with applicable
Greek media laws; and provided, further, that in the case of transfers
pursuant to clauses (A), (B), (C) or (D), the transferee shall have agreed
to be bound by the restrictions in this paragraph.
(j) Prior to the First Delivery Date and each additional Delivery
Date, the Company will deposit the Shares to be issued by it with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise will comply with the Deposit Agreement so that ADRs evidencing
the ADSs being sold on each such Delivery Date will be executed (and, if
applicable, countersigned) and issued by the Depositary against receipt of
such Shares and delivered to the International Managers on such Delivery,
in accordance with the provisions of this Agreement.
(k) The Company will maintain the Deposit Agreement with the
Depositary (or establish a substitute Deposit Agreement with the Depositary
or another commercial financial institution of similar quality in a manner
so as not to have a material adverse effect upon the market for or holders
of the ADSs).
(l) Prior to the Effective Date, to use all reasonable efforts to
have the ADSs accepted for inclusion in the Nasdaq National Market System
and on LSE and to use its best efforts to complete those listings, subject
only to official notice of issuance and evidence of satisfactory
distribution, prior to the First Delivery Date and to use all reasonable
efforts to maintain such listing and inclusion until none of the ADSs is
outstanding.
(m) To comply in all material respects with the Deposit Agreement so
that ADRs evidencing ADSs will be executed by the Depositary and delivered
to the International Managers on each Delivery Date.
(n) To apply the net proceeds from the sale of the ADSs being sold by
the Company as set forth in the Prospectus.
(o) To take such steps as shall be necessary to ensure that the
Company shall not become an "investment company" within the meaning of such
term under the United States Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder.
(p) Between the date hereof and the First Delivery Date (both dates
inclusive), to notify and consult with the Lead Managers, and to cause all
other parties acting
-21-
on its behalf to notify and consult with the Lead Managers, prior to
issuing any announcement which could be material in the context of the
distribution of the ADSs.
(q) Promptly to inform the International Managers of any
communications received by the Company from any governmental or regulatory
agency or authority relating to the offering of the ADSs and to furnish the
Lead Managers with copies thereof.
(r) To not take, directly or indirectly, any action which is designed
to stabilize or manipulate, or which constitutes or which might reasonably
be expected to cause or result in stabilization or manipulation of, the
price of any security of the Company in connection with the offering of the
ADSs.
(s) To operate its business in a manner which will minimize the risk
of the Company qualifying as a PFIC in its current taxable year or for
future taxable years.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any Capital Stock or securities convertible into or
exchangeable for Capital Stock (other than the ADSs) or (2) enter into any
swap or other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of such
Capital Stock whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Capital Stock or other securities, in
cash or otherwise, in each case without the prior written consent of ▇▇▇▇▇▇
Brothers International (Europe); provided, however, that the foregoing
provisions shall not apply to (A) transfers by way of testate or intestate
succession or by operation of law, (B) transfers to members of the
immediate family of the Selling Stockholder or to a trust, partnership,
limited liability company or other entity, all of the beneficial interests
of which are held by the Selling Stockholder or (C) transfers to charitable
institutions for no consideration; and provided, further, that in the case
of transfers pursuant to clauses (A), (B) or (C), the transferee shall have
agreed to be bound by the restrictions in this paragraph.
(b) That the ADSs to be sold by the Selling Stockholder hereunder
which is represented by the certificates held in custody for the Selling
Stockholder, is subject to the interest of the International Managers, that
the arrangements made by the Selling Stockholder for such custody are to
that extent irrevocable and that the obligations
-22-
of the Selling Stockholder hereunder shall not be terminated by any act of
the Selling Stockholder, by operation of law or the occurrence of any other
event.
(c) To deliver to the Lead Managers prior to the First Delivery Date
a properly completed and executed United States Treasury Department Form W-
8 (if the Selling Stockholder is a non-United States person) or Form W-9
(if the Selling Stockholder is a United States person).
(d) Prior to each Delivery Date, to deposit or cause to be deposited
the Shares to be sold by the Selling Stockholder with the Depositary in
accordance with the provisions of the Deposit Agreement so that the ADRs
evidencing the ADSs to be delivered to the International Managers at each
Delivery Date are executed and, if applicable (and, if applicable
countersigned) and issued by the Depositary against receipt of such Shares
and delivered to the International Managers on such Delivery Date in
accordance with the terms of this Agreement.
(e) Immediately prior to the transfer of Shares on each Delivery Date
pursuant to this Agreement, to pay all capital gains and other taxes due on
such transfer.
(f) To pay all duty, stamp or other issuance transfer or capital
gains taxes (including any Greek stamp duty or stamp duty reserve tax)
payable in connection with (i) the deposit with the Depositary of the
Shares by the Selling Stockholder against the issuance of ADRs evidencing
ADSs to be sold by the Selling Stockholder at each Delivery Date, (ii) the
sale and delivery by the Selling Stockholder of such ADSs to or for the
respective accounts of the International Managers and the U.S. Underwriters
in the manner contemplated herein and in the U.S. Underwriting Agreement,
respectively, (iii) the sale and delivery by the International Managers and
the U.S. Underwriters of such ADSs to the initial purchasers thereof in the
manner contemplated herein and in the U.S. Underwriting Agreement,
respectively, and (iv) the execution and delivery by the Selling
Stockholder of this Agreement, the U.S. Underwriting Agreement and the
Custody Agreement.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the ADSs and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statements and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statements as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus all as provided in
this Agreement and the U.S. Underwriting Agreement; (d) the costs of producing
and distributing this Agreement, the U.S. Underwriting Agreement, the Agreement
Between U.S. Underwriters
-23-
and International Managers, the Supplemental Agreement Among U.S. Underwriters,
the Agreement Among International Managers and any other related documents in
connection with the offering, purchase, sale and delivery of the ADSs; (e) the
costs of delivering and distributing the Custody Agreement and the Power of
Attorney; (f) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
sale of the ADSs; (g) any applicable listing or other fees; (h) the fees and
expenses of qualifying the Shares and the ADSs under the securities laws of the
several jurisdictions as provided in Section 6 (h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the International Managers); (i) the costs of issuing all of the
Shares in the form of ADSs including fees and charges of the Depositary; (j) the
costs of distributing the terms of agreement relating to the organization of the
domestic underwriting syndicate and selling group to the members thereof by
mail, telex or other means of communication; (k) all costs and expenses incident
to the road show traveling and lodging expenses of the Company; (l) the costs of
preparing ADR certificates evidencing the ADSs; (m) all expenses and fees in
connection with the application for inclusion of the ADSs on the Nasdaq National
Market System and LSE; (n) the costs and expenses of depositing any Shares under
the Deposit Agreement against issuance of ADRs evidencing the ADSs; (o) the fees
and expenses (including fees and disbursements of counsel) of the Depositary and
any nominee or custodian appointed under the Deposit Agreement, other than the
fees and expenses to be paid by holders of ADRs (except the U.S. Underwriters
and the International Managers, in connection with the initial purchase of the
ADSs); (p) the fees and expenses of any Authorized Agent (as defined in Section
19 hereof); (q) the cost and charges of any transfer agent or registrar; (r) all
stamp or other issuance or transfer taxes or governmental duties, if any,
payable by the International Managers in connection with the offer and sale of
the ADSs (including the Shares relating thereto) to the International Managers
and by the International Managers to the initial purchasers thereof; and (s) all
other costs and expenses incident to the performance of the obligations of the
Company and the Selling Stockholder under this Agreement not otherwise
specifically provided for in this Section, including without limitation, the
fees and expenses of KPMG Peat Marwick Kyriacou, the Company's independent
accountants, and the fees and expenses of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, U.S. counsel to the Company, and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Partners, Greek
counsel to the Company; provided that, except as provided in this Section 8 and
in Section 13 the International Managers shall pay their own costs and expenses,
including the costs and expenses of their counsel and the expenses of
advertising any offering of the ADSs made by the International Managers, and the
Selling Stockholder shall pay the fees and expenses of counsel for the Selling
Stockholder, the Custodian (and any other attorney-in-fact), and all expenses
and stamp duties and any transfer taxes payable in connection with its sales of
ADSs to the U.S. Underwriters and International Managers and reimburse the
Company for its pro rata share of the fees and expenses paid by the Company in
connection with the offering of the ADSs.
-24-
9. Conditions of International Managers Obligations. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company and the Selling Stockholder contained herein, to the performance by
the Company and the Selling Stockholder of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 6(a); no stop order suspending the effectiveness of any
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statements or the Prospectus or otherwise
shall have been complied with.
(b) No U.S. Underwriter or International Manager shall have
discovered and disclosed to the Company or the Selling Stockholder on or
prior to such Delivery Date that any of the Registration Statements or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, U.S.
counsel for the International Managers, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the U.S. Underwriting
Agreement, the Custody Agreement, the Power of Attorney, the Deposit
Agreement, the Registration Statements and the Prospectus, and all other
legal matters relating to this Agreement, the U.S. Underwriting Agreement,
the Custody Agreement, the Power of Attorney, the Deposit Agreement, the
Registration Statements and the Prospectus and the transactions
contemplated hereby and thereby shall be satisfactory in all material
respects to counsel for the International Managers and the Company and the
Selling Stockholder shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(d) (x) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Partners shall have furnished to the
Lead Managers their written opinion, as Greek counsel to the Company,
addressed to the International Managers and dated such Delivery Date, in
form and substance reasonably satisfactory to the Lead Managers, to the
effect that:
(i) The Company and each of the Scheduled Entities has been
duly incorporated and is validly existing as a corporation in good
standing under the
-25-
laws of its jurisdiction of incorporation, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the general affairs, management, financial position, stockholders'
equity, results of operations, business or prospects of the Company,
and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged;
(ii) The Company has no direct or indirect subsidiaries and the
Company does not own, directly or indirectly, any equity interest or
ownership interest in any entity;
(iii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of Capital Stock of
the Company (including the Shares underlying the ADSs being delivered
on such Delivery Date) have been duly and validly authorized and
issued, are fully paid and non-assessable, and conform to the
description thereof contained in the Prospectus;
(iv) The Shares to be issued and the ADSs to be sold by the
Company to the Underwriters hereunder and under the U.S. Underwriting
Agreement have been duly and validly authorized and, upon deposit as
contemplated herein, in the U.S. Underwriting Agreement and in the
Deposit Agreement and when the ADSs have been issued and delivered
against payment therefor as provided herein and therein, will be duly
and validly issued, fully paid and non-assessable; the Shares conform
in all material respects to the descriptions thereof contained in the
Prospectus; and no further approval or authority of the shareholders
or the Board of Directors of the Company will be required for the
issuance and sale of the ADSs or the deposit of the Shares as
contemplated herein and in the Deposit Agreement;
(v) There are no preemptive or other rights to subscribe for or
to purchase, nor any obligations of the Company to issue, nor any
restriction upon the voting or transfer of, Shares or ADSs pursuant to
the Company's charter or by-laws or any agreement or other instrument
governed by Greek law, regulation or order known to such counsel and
the deposit of any such Shares pursuant to the Deposit Agreement will
not give rise to any such preemptive or other rights, obligations or
restrictions;
(vi) The Company and each of the Scheduled Entities has good and
marketable title in fee simple to all real property owned by it, in
each case free
-26-
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and any
of the Scheduled Entities; and all real property and buildings held
under lease by the Company and each of the Scheduled Entities are held
by it under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and any of the Scheduled Entities;
(vii) There are no legal or governmental proceedings pending to
which the Company or any of the Scheduled Entities is a party or of
which any property or assets of the Company or any of the Scheduled
Entities is the subject which, if determined adversely to the Company
or any of the Scheduled Entities, as applicable, might have a material
adverse effect on the general affairs, management, financial position,
stockholders' equity, results of operations, business or prospects of
the Company or any of the Scheduled Entities, as applicable; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(viii) The Company has the requisite power, authority and legal
right to enter into each of this Agreement, the U.S. Underwriting
Agreement, the Deposit Agreement and the Custody Agreement and can
perform its obligations hereunder and thereunder. This Agreement, the
U.S. Underwriting Agreement, the Deposit Agreement and the Custody
Agreement have each been duly authorized, executed and delivered by
the Company. Each of the Deposit Agreement and the Custody Agreement
is a legal, valid, binding and enforceable agreement of the Company;
(ix) The issuance of the Shares by the Company and sale of the
ADSs being delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement, the U.S. Underwriting Agreement, the Deposit Agreement and
the Custody Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, (A) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, (B) the charter or by-laws of the Company or (C) any statute
or any order, rule or regulation
-27-
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties or
assets, other than in the case of clauses (A) and (C), such breaches
or violations which, individually or in the aggregate, would not have
or result in a material adverse effect on the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company; and no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the U.S.
Underwriting Agreement, the Deposit Agreement or the Custody Agreement
by the Company and the consummation of the transactions contemplated
hereby and thereby;
(x) The statements in the Prospectus under the heading
"Taxation -- Greek Taxation," "Business -- Regulation,"
"Risk Factors -- Regulation," "Description of Share Capital,"
"Dividend Policy" and "Enforceability of Civil Liabilities," insofar
as they describe Greek statutes, rules and regulations, or to
provisions of documents therein described which are governed by Greek
law are true and accurate in all material respects, and nothing has
been omitted from such statements which would make the same misleading
in any material respect;
(xi) Upon payment for, and delivery of, the ADSs representing
Shares to be sold by the Selling Stockholder and the Company under
this Agreement and the U.S. Underwriting Agreement in accordance with
the terms hereof and thereof, each U.S. Underwriter and International
Manager who purchases such ADSs will acquire good and valid title to
such ADSs free and clear of any liens, encumbrances, equities or
adverse claims;
(xii) All dividends and other distributions declared and
payable by the Company in respect of the Shares may under current
Greek laws and regulations be paid to shareholders or to the
Depositary, as applicable, in Greek drachmae that may be converted
into foreign currency and freely transferred out of the Republic of
Greece without the necessity of obtaining any consents, approvals,
authorizations, orders or clearances from or registering with any
government agency or body of the Republic of Greece; and, except as
set forth in the Prospectus, all such dividends and distributions made
to holders of Shares will not be subject to Greek income, withholding
or other taxes under Greek laws and regulations;
(xiii) Except as disclosed in the Prospectus, no stamp or
other issuance or transfer taxes or duties and no capital gains,
income, withholding or
-28-
other taxes are payable by or on behalf of the International Managers
to the Greek government or any political subdivision or taxing
authority thereof or therein in connection with (i) the issuance of
the Shares by the Company, (ii) the deposit of Shares with the
Depositary against issuance of ADRs evidencing ADSs, (iii) the sale of
the ADSs representing the Shares by the Company to the U.S.
Underwriters in accordance with the U.S. Underwriting Agreement and to
the International Managers in accordance with this Agreement, or (iv)
the sale and delivery by the U.S. Underwriters and the International
Managers of the ADSs to the initial purchasers thereof;
(xiv) The Company and each of the Scheduled Entities owns or
possesses adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademarks
registrations, service ▇▇▇▇ registrations, copyrights and licenses
necessary for the conduct of its business and such counsel has no
reason to believe that the conduct of its business will conflict with,
and has not received any notice of any claim of conflict with any such
rights of others which, if such claim of conflict were sustained,
would have a material adverse effect on the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company;
(xv) Except as set forth in the Prospectus, the Company and each
of the Scheduled Entities owns, possesses or has obtained all Permits
as are required to own its properties and to conduct its business; and
the Company and each of the Scheduled Entities has fulfilled and
performed in all material respects all of its obligations with respect
to such Permits and no event has occurred, or as a result of the
consummation of the transactions contemplated hereby would occur,
which allows, or after notice or lapse of time or both would allow,
revocation or termination thereof or results or would result in any
other material impairment of the rights of the holder of any such
Permit; none of such Permits contains any material limitation on the
ability of the Company to own its respective properties or to conduct
its business in the manner described in the Prospectus; and such
counsel has no knowledge of a threatened revocation or modification
relating to any such Permit and, to the best knowledge of such
counsel, none of the Company and the Scheduled Entities has received
any notice of any proceedings relating to the revocation or
modification of any such Permit;
(xvi) To the best knowledge of such counsel, no labor
disturbance by the employees of the Company or any of the Scheduled
Entities exists or is imminent which, individually or in the
aggregate, would have a material adverse
-29-
effect on the general affairs, management, financial position,
stockholders' equity, results of operations, business or prospects of
the Company;
(xvii) Neither the Company nor any of its properties or assets
has any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise);
(xviii) To ensure the legality, validity, enforceability or
admissibility into evidence of this Agreement, the U.S. Underwriting
Agreement, the Deposit Agreement and the Custody Agreement in the
Republic of Greece, it is not necessary that any such document be
submitted into, filed or recorded with any court or other authority in
the Republic of Greece or that any tax, imposition or charge be paid
in the Republic of Greece on or in respect of any such document;
(xix) The Greek courts will recognize and give effect to (a)
the choice of the law of the State of New York ("New York law") as the
law governing this Agreement, the U.S. Underwriting Agreement and the
Deposit Agreement and (b) the provisions in this Agreement, the U.S.
Underwriting Agreement, the Deposit Agreement and the Custody
Agreement whereby the Company submits to the jurisdiction of any
Federal or state court located in the in The City of New York (a "New
York Court"); and the Company has the power to submit and has taken
all necessary corporate action to submit to the jurisdiction of a New
York Court;
(xx) The Greek courts will recognize a final and conclusive
judgment, subject to a review of the procedure pursuant to which such
judgment was entered, against the Company for a definite amount by a
New York Court in an action arising out of or in connection with this
Agreement, the U.S. Underwriting Agreement, the Deposit Agreement and
the Custody Agreement as creating a debt enforceable against the
Company by the judgment creditor;
(xxi) Neither the Company nor any of the Scheduled Entities (a)
is in violation of its charter or by-laws, (b) to the best knowledge
of such counsel after due inquiry, is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or otherwise, would constitute such a default, in the due performance
or observance of any material term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is
subject or (c) to
-30-
the best knowledge of such counsel after due inquiry, is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may
be subject; and
(xxii) The transfer of 12,409,386 shares of Capital Stock of
the Company on September 1, 1998 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Globecast Holdings Limited,
Altavista Global Holdings Limited and Praxis Global Investments
Limited does not violate any Greek statute, rule, law or regulation
applicable to the Company and its shareholders.
In rendering such opinion, such counsel may (i) state that their opinion is
limited to matters governed by the laws of the Republic of Greece; and (ii)
in giving the opinion referred to in Section 9(d)(x)(vi), state that no
examination of record titles for the purpose of such opinion has been made,
and that they are relying upon a general review of the titles of the
Company, upon abstracts, reports and policies of title companies rendered
or issued at or subsequent to the time of acquisition of such property by
the Company, upon opinions of counsel to the lessors of such property and,
in respect of matters of fact, upon certificates of officers of the
Company, provided that such counsel shall state that they believe that both
the International Managers and they are justified in relying upon such
opinions, abstracts, reports, policies and certificates. Such counsel shall
also have furnished to the Lead Managers a written statement, addressed to
the International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that (x) such
counsel has acted as counsel to the Company on a regular basis, has acted
as counsel to the Company in connection with previous financing
transactions and has acted as counsel to the Company in connection with the
preparation of the Registration Statements, and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead them to
believe that the Registration Statements, as of their respective Effective
Dates, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may be qualified
by a statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statements or the Prospectus except for the
statements made in the Prospectus under the captions "Enforceability of
Civil Liabilities," "Risk Factors -- Regulation," "Business -- Regulation,"
"Description of Share Capital," "Dividend Policy" and "Taxation -- Greek
Taxation," insofar as such statements relate to the Shares and concern
legal matters.
-31-
(y) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York,
shall have furnished to the Lead Managers their written opinion as U.S. counsel
to the Company, addressed to the International Managers and dated such Delivery
Date, in form and substance reasonably satisfactory to the Lead Managers, to the
effect that:
(i) Such counsel has been advised orally by the staff of the
Commission that the Registration Statements have been declared effective
under the Securities Act as of the date and time specified in such opinion.
The Prospectus has been filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in such
opinion on the date specified therein. Such counsel has been advised orally
by the staff of the Commission that no stop order suspending the
effectiveness of any of the Registration Statements has been issued and, to
the knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(ii) The Registration Statements and the Prospectus and any
further amendments or supplements thereto made by the Company prior to such
Delivery Date (other than the financial statements, financial statement
schedules and other financial and statistical data included or omitted from
it, as to which such counsel need express no opinion) appear on their face
to be appropriately responsive in all material respects to the requirements
of the Securities Act and the Rules and Regulations (other than the
financial statements, financial statement schedules and other financial and
statistical data included or omitted from it, as to which such counsel need
express no opinion) and, when they were filed with the Commission, appear
on their face to be appropriately responsive in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (for purposes of the opinion in this clause (ii),
such counsel may assume that the statements made in the Registration
Statements and Prospectus are complete and correct);
(iii) The statements contained in the Prospectus under the
caption "Description of American Depository Receipts" insofar as such
statements purport to constitute a summary of the terms of the Deposit
Agreement, ADSs and ADRs, and under the caption "Taxation -- United States
Taxation," insofar as they purport to constitute a summary of federal
statutes, rules and regulations, constitute a fair summary of the matters
described under that caption in all material respects;
(iv) Such counsel does not have any knowledge of any contracts
or other documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statements by the Securities Act or
by the Rules
-32-
and Regulations which have not been described or filed as exhibits to the
Registration Statements or incorporated therein by reference as permitted
by the Rules and Regulations;
(v) Such counsel does not have knowledge of any legal or
governmental proceedings pending to which the Company is a party or of
which any property or asset of the Company is the subject which, if
determined adversely to the Company, would have a material adverse effect
on the general affairs, management, financial position, stockholders'
equity, results of operations, business or prospects of the Company; and,
to such counsel's knowledge, no such proceedings are overtly threatened by
governmental authorities or overtly threatened by others;
(vi) Upon the due and valid issuance by the Depositary of ADRs
evidencing ADSs against deposit of Shares in respect thereof and against
payment therefor in accordance with the provisions of this Agreement, the
U.S. Underwriting Agreement and the Deposit Agreement, such ADRs will be
duly and validly issued and the persons in whose names the ADRs are
registered will be entitled to the rights specified in the ADRs and in the
Deposit Agreement;
(vii) Each of the Deposit Agreement and the Custody Agreement
is a legal, valid, binding and enforceable agreement of the Company;
(viii) The Deposit Agreement, the ADRs and the ADSs conforms in
all material respects to the description thereof contained in the
Prospectus;
(ix) The issue of the Shares and sale of the ADSs being
delivered on such Delivery Date by the Company and the compliance by the
Company with all of the provisions of this Agreement and the U.S.
Underwriting Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, (A) any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel and
governed by U.S. law to which the Company is a party or by which the
Company is bound or to which any of the properties or assets of the Company
is subject or (B) any U.S. federal or New York State statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body in or of the United States or any state or other political
subdivision thereof having jurisdiction over the Company or any of their
properties or assets, other than such breaches or violations which,
individually or in the aggregate,
-33-
would not have or result in a material adverse effect on the general
affairs, management, financial position, stockholders' equity, results of
operations, business or prospects of the Company, in each case which in
such counsel's experience are normally applicable to the transactions of
the type contemplated by this Agreement; and, except for the registration
of the Shares and the ADSs under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Shares and the
ADSs by the U.S. Underwriters and the International Managers, no consent,
approval, authorization or order of, or filing or registration with, any
such U.S. court or governmental agency or body, which has not been
obtained, taken or made (other than as required by any state securities
laws, as to which no opinion is expressed), is required for the execution,
delivery and performance of this Agreement or the U.S. Underwriting
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby;
(x) The Company is not, and after giving effect to the offering
and sale of the ADSs and the application of the proceeds therefrom will not
be required to be registered as an "investment company" within the meaning
of such terms under the United States Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder.
(xi) Based upon the nature of the Company's business and the
current ownership of the Company's shares taking into account the offering
and sale of the ADSs, the Company does not expect to be a "foreign personal
holding company" as defined in ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal
Revenue Code of 1986, as amended (the "Code").
(xii) Such counsel does not have knowledge of any contracts,
agreements or understandings between the Company and any person granting
such person the right (other than rights which have been waived or
satisfied) to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statements or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act; and
-34-
(xiii) Assuming that the Company has duly authorized and
executed this Agreement and has full power and authority and legal right to
enter into and perform its obligations hereunder under Greek laws, under
the laws of the State of New York relating to submission to jurisdiction,
the Company has, pursuant to Section 19 of this Agreement, validly and
irrevocably submitted to the personal jurisdiction of any New York State or
U.S. federal court located in the Borough of Manhattan, New York, New York,
in any action arising out of or related to this Agreement, has validly and
irrevocably waived any objections to the venue of a proceeding in any such
court, and has validly and irrevocably appointed CT Corporation System as
its authorized agent for the purpose described in Section 19 of this
Agreement; and service of process effected in the manner set forth in
Section 19 of this Agreement will be effective to confer personal
jurisdiction over the Company in any such action.
In rendering such opinion, such counsel may (i) state that their opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of New York and (ii) rely (to the extent such counsel
deems proper and specifies in their opinion), as to matters involving the
application of the laws of the Republic of Greece, upon the opinion of other
counsel of good standing, provided that such other counsel is satisfactory to
counsel for the International Managers and furnishes a copy of its opinion to
the Lead Managers. Such counsel shall also have furnished to the Lead Managers a
written statement, addressed to the International Managers and dated such
Delivery Date, in form and substance satisfactory to the Lead Managers, to the
effect that (x) such counsel has acted as U.S. counsel to the Company on a
regular basis (although the Company is also represented by its Greek Counsel),
has acted as counsel to the Company in connection with previous financing
transactions and has acted as counsel to the Company in connection with the
preparation of the Registration Statements, and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead them to believe that
the Registration Statements, as of their respective Effective Dates, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus contains any untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statements or the Prospectus except
for the statements made in the Prospectus under the captions "Description of
American Depositary Receipts"
-35-
"Taxation -- United States Taxation," insofar as such statements concern legal
matters.
(e) (x) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Partners shall have furnished to the
Lead Managers their written opinion, as Greek counsel to the Selling
Stockholder, addressed to the International Managers and dated such Delivery
Date, in form and substance satisfactory to the Lead Managers, to the effect
that:
(i) Such Selling Stockholder has full right, power and
authority to enter into this Agreement, the U.S. Underwriting
Agreement, the Power of Attorney and the Custody Agreement; the
execution, delivery and performance of this Agreement, the U.S.
Underwriting Agreement, the Power of Attorney and the Custody
Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Selling Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such actions result in any violation
of any Greek statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body in the Republic of
Greece having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder; and no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body in the Republic of
Greece is required for the execution, delivery and performance of this
Agreement, the U.S. Underwriting Agreement, the Power of Attorney or
the Custody Agreement by the Selling Stockholder and the consummation
by the Selling Stockholder of the transactions contemplated hereby and
thereby;
(ii) This Agreement and the U.S. Underwriting Agreement have
each been duly authorized, executed and delivered by or on behalf of
the Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have each
been duly authorized, executed and delivered by the Selling
Stockholder and constitute valid and binding agreements of the Selling
Stockholder, enforceable in accordance with their respective terms;
(iv) Immediately prior to such Delivery Date, the Selling
Stockholder had good and valid title to the ADSs to be sold by the
Selling Stockholder
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under this Agreement and the U.S. Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims, and full right,
power and authority to sell, assign, transfer and deliver such ADSs to
be sold by the Selling Stockholder hereunder;
(v) Good and valid title to the ADSs to be sold by the Selling
Stockholder under this Agreement and the U.S. Underwriting Agreement,
free and clear of all liens, encumbrances, equities or claims, has
been transferred to each of the several U.S. Underwriters and the
International Managers;
(vi) To the knowledge of such counsel, neither the Selling
Stockholder nor any of its properties or assets has any immunity from
jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise);
(vii) To ensure the legality, validity, enforceability or
admissibility into evidence of this Agreement, the U.S. Underwriting
Agreement, the Custody Agreement and the Power of Attorney in the
Republic of Greece, it is not necessary that any such document be
submitted into, filed or recorded with any court or other authority in
the Republic of Greece or that any tax, imposition or charge be paid
in the Republic of Greece on or in respect of any such document;
(viii) The Greek courts will recognize and give effect to (a)
the choice of the law of the State of New York ("New York law") as the
law governing this Agreement, the U.S. Underwriting Agreement, the
Custody Agreement and the Power of Attorney and (b) the appointment by
the Selling Stockholder of CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive service of process in
the United States of America under this Agreement, the U.S.
Underwriting Agreement, the Custody Agreement and the Power of
Attorney and to the provisions in this Agreement, the U.S.
Underwriting Agreement, the Custody Agreement and the Power of
Attorney whereby the Selling Stockholder submits to the jurisdiction
of any Federal or state court located in The City of New York (a "New
York Court"); and the Selling Stockholder has the power to submit and
has taken all necessary corporate action to submit to the jurisdiction
of a New York Court; and
(ix) The Greek courts will recognize a final and conclusive
judgment, subject to a review of the procedure pursuant to which such
judgment was entered, against the Selling Stockholder for a definite
amount by a New
-▇▇-
▇▇▇▇ ▇▇▇▇▇ in an action arising out of or in connection with this
Agreement, the U.S. Underwriting Agreement, the Custody Agreement and
the Power of Attorney as creating a debt enforceable against the
Selling Stockholder by the judgment creditor.
In rendering such opinion, such counsel may (i) state that their opinion is
limited to matters governed by the laws of the Republic of Greece and (ii)
in rendering the opinion in Section 9(e)(x)(iv) above, rely upon a
certificate of the Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the Shares
underlying the ADSs sold by the Selling Stockholder, provided that such
counsel shall furnish copies thereof to the Lead Managers and state that
they believe that both the International Managers and they are justified in
relying upon such certificate. The foregoing opinion may be qualified by a
statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus.
(y) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York,
shall have furnished to the Lead Managers their written opinion, as U.S.
counsel to the Selling Stockholder, addressed to the International Managers
and dated such Delivery Date, in form and substance satisfactory to the
Lead Managers, to the effect that:
(i) The Selling Stockholder has full right, power and authority
to enter into this Agreement, the U.S. Underwriting Agreement, the
Custody Agreement and the Power of Attorney; the execution, delivery
and performance of this Agreement and the U.S. Underwriting Agreement
by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (A) any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or
to which any of the properties or assets of the Selling Stockholder is
subject or (B) any U.S. Federal or New York statute or any order, rule
or regulation known to such counsel of any court or governmental
agency or body in or of the United States or any state or other
political subdivision thereof having jurisdiction over the Selling
Stockholder or the properties or assets of the Selling Stockholder,
other than such breaches or violations which, individually or in the
aggregate, would not have or result in a material adverse effect on
the general affairs, management, financial position, stockholders'
equity, results of operations, business or prospects of the Company,
in each case which in such counsel's experience are normally
applicable to the transactions of the type
-38-
contemplated by this Agreement except for such conflicts, breaches,
violations or defaults as would not have a material adverse effect on
the Selling Stockholder or on its ability to perform its obligations
hereunder and under the U.S. Underwriting Agreement on a timely basis;
and, except for the registration of the Shares and the ADSs under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable U.S. state or foreign securities laws in connection
with the purchase and distribution by the U.S. Underwriters and the
International Managers, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body, which has not been obtained, taken or made (other than
as required by any state securities laws, as to which no opinion is
expressed), is required for the execution, delivery and performance of
this Agreement, the U.S. Underwriting Agreement, the Power of Attorney
or the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby;
(ii) Each of this Agreement, the U.S. Underwriting Agreement,
the Custody Agreement and the Power of Attorney has been duly
authorized, executed and delivered by or on behalf of the Selling
Stockholder in accordance with the laws of the State of New York and
constitute legal, valid and binding obligations of the Selling
Stockholder, enforceable against the Selling Stockholder in accordance
with their terms;
(iii) Upon payment for, and delivery of, the ADSs representing
the Shares to be sold by the Selling Stockholder under this Agreement
and the U.S. Underwriting Agreement in accordance with the terms
hereof and thereof, each U.S. Underwriter and International Manager
who purchases such ADSs in good faith and without notice of any lien,
encumbrance, equity or other adverse claim (within the meaning of the
Uniform Commercial Code as in effect in the State of New York) will
acquire good and valid title to such ADSs free and clear of any such
liens, encumbrances, equities or adverse claims; and
(iv) The Selling Stockholder has, pursuant to, and to the extent
contemplated by, Section 19 of this Agreement, validly and irrevocably
submitted to the personal jurisdiction of any New York State or U.S.
federal court located in the Borough of Manhattan, New York, New York,
in any action arising out of or related to this Agreement, has validly
and irrevocably waived any objections to the venue of a proceeding in
any such court, and has validly and irrevocably appointed CT
Corporation System as authorized agent for the purpose described in
Section 19 of this Agreement and service of process effected
-39-
in the manner set forth in Section 19 of this Agreement will be
effective to confer personal jurisdiction over the Selling Stockholder
in any such action.
In rendering such opinion, such counsel may state that their opinion is limited
to matters governed by the Federal laws of the United States of America. The
foregoing opinion may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statements or the
Prospectus.
(f) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have furnished the Lead Managers
their written opinion, as counsel to the Depository, addressed to the
International Managers and dated such Delivery Date, in form and substance
satisfactory to the Lead Managers, to the effect that:
(i) the Depositary has the requisite power, authority and legal
right to enter into and carry out the terms of the Deposit Agreement;
(ii) the Deposit Agreement has been duly authorized, executed
and delivered by the Depositary and, assuming due authorization,
execution and delivery of the Deposit Agreement by the Company,
constitutes a legal, valid and binding obligation of the Depositary
enforceable in accordance with its terms;
(iii) upon the issuance by the Depositary of ADRs evidencing
ADSs against the deposit of Shares in accordance with the provisions
of the Deposit Agreement (assuming such Shares were, at the time of
such deposit, (a) duly authorized and validly issued, fully paid and
non-assessable and (b) registered in compliance with the Securities
Act), such ADRs will be duly and validly issued and will entitle the
holder thereof to the rights specified therein and in the Deposit
Agreement; and
(iv) the ADS Registration Statement has been declared effective
under the Securities Act and, to the best of such counsel's knowledge,
neither such counsel nor any officer of The Bank of New York has
received a stop order suspending the effectiveness of the ADS
Registration Statement or any part thereof and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Securities Act, and the ADS Registration Statement, and each
amendment, as of their respective effective dates, complied as to form
in all material respects with the requirements of the Securities Act
and the Rules and Regulations.
-40-
In rendering such opinion, such counsel may state that their opinion is limited
to the laws of the State of New York.
(g) The Lead Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, U.S. counsel for the International Managers, and from Moratis,
Petropoulos, Passas, Greek Counsel to the International Managers, such opinions,
dated such Delivery Date, with respect to the issuance and sale of the Shares,
the Registration Statements, the Prospectus and other related matters as the
Lead Managers may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Lead Managers
have received from KPMG Peat Marwick Kyriacou a letter, in form and substance
satisfactory to the Lead Managers, addressed to the International Managers and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(i) With respect to the letter of KPMG Peat Marwick Kyriacou referred
to in the preceding paragraph and delivered to the Lead Managers, concurrently
with the execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Lead Managers a letter (the "bring-down letter") of such
accountants, addressed to the International Managers and dated such Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the bring-
down letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letter.
(j) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board and Chief
Executive Officer,
-41-
its Executive Vice President and Chief Operating Officer, and its Chief
Financial Officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 9(a) and 9(l) have been
fulfilled; and
(ii) They have carefully examined the Registration Statements
and the Prospectus and, in their opinion, (A) as of their respective
Effective Dates, the Registration Statements and the Prospectus did
not include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since their
respective Effective Dates no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statements or the Prospectus.
(k) The Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholders) shall have furnished to
the Lead Managers on the First Delivery Date a certificate, dated the First
Delivery Date, signed by, or on behalf of, the Selling Stockholder (or the
Custodian or one or more attorneys-in-fact) stating that the representations,
warranties and agreements of the Selling Stockholder contained herein are true
and correct as of the First Delivery Date and that the Selling Stockholder has
complied with all agreements contained herein to be performed by the Selling
Stockholder at or prior to the First Delivery Date.
(l) (i) The Company shall not have sustained since the date of the
latest audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus and (ii) since such date there shall not have
been any change in the capital stock or long-term debt of the Company or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Lead Managers, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the ADSs being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
-42-
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, Nasdaq
National Market System, LSE or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by U.S. Federal or state or Greek
authorities, (iii) the United States or the Republic of Greece shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States or the Republic of Greece or there shall have been a
declaration of a national emergency or war by the United States or the Republic
of Greece, (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions or in currency exchange
rates, taxation, exchange controls or foreign investment regulations (or the
effect of international conditions on the financial markets in the United States
or the Republic of Greece shall be such) as to make it, in the judgment of a
majority in interest of the several International Managers, impracticable or
inadvisable to proceed with the public offering or delivery of the ADSs being
delivered on such Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(n) The ADSs shall have been approved for listing on LSE, subject
only to official notice of issuance and evidence of satisfactory distribution.
The ADSs shall have been approved for inclusion in the Nasdaq National Market
System, subject only to official notice of issuance and evidence of satisfactory
distribution.
(o) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Delivery Date.
(p) The NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(q) The Company and the Depositary shall have executed and delivered
the Deposit Agreement (in form and substance satisfactory to the Lead Managers)
and the Deposit Agreement shall then be in full force and effect.
(r) The Depositary shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of one of its authorized officers in a
form satisfactory to the Lead Managers.
-43-
(s) The Company and the Selling Stockholder shall have furnished to
the Lead Managers such further information, certificates and documents as the
Lead Managers may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the International Managers.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each International
Manager, its officers and employees and each person, if any, who controls any
International Manager within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of ADSs), to which that International
Manager, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, any Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
International Manager in connection with, or relating in any manner to, the ADSs
or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such International Manager
through its gross negligence or willful misconduct), and shall reimburse each
International Manager and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
International manager, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any Registration Statement
or the Prospectus, or in any such amendment or supplement, in reliance upon and
in conformity with written information concerning such International Manager
furnished to the Company through the Lead Managers by or on behalf of
-44-
any International Manager specifically for inclusion therein which information
consists solely of the information specified in Section 10(f). The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any International Manager or to any officer, employee or
controlling person of that International Manager.
(b) The Selling Stockholder shall indemnify and hold harmless each
International Manager, its officers and employees, and each person, if any, who
controls any International Manager within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Shares), to which
that International Manager, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each International Manager, its officers and
employees and each such controlling person for any legal or other expenses
reasonably incurred by that International Manager, its officers and employees or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that (i) the Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information concerning such International Manager furnished to the Company
through the Lead Managers by or on behalf of any International Manager
specifically for inclusion therein which information consists solely of the
information specified in Section 10(f) and (ii) the obligations of the Selling
Stockholder under this Section 10(b) shall not exceed the amount of net proceeds
(after deducting underwriting discounts and commissions but before deducting
expenses) received by such Selling Stockholder from the offering of ADSs
purchased under this Agreement. The foregoing indemnity agreement is in addition
to any liability which the Selling Stockholder may otherwise have to any
International Manager or any officer, employee or controlling person of that
International Manager.
(c) Each International Manager, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and
-45-
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, any Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, any Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such International Manager
furnished to the Company through the Lead Manager by or on behalf of that
International Manager specifically for inclusion therein, and shall reimburse
the Company and any such director, officer or controlling person for any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any International Manager may otherwise have to the Company
or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Lead Managers shall have the right to employ counsel to represent jointly
the Lead Managers and those other International Managers and their respective
officers, employees and controlling persons who may be subject
-46-
to liability arising out of any claim in respect of which indemnity may be
sought by the International Managers against the Company, any Selling
Stockholder under this Section 10 if, in the reasonable judgment of the Lead
Managers, it is advisable for the Lead Managers and those International
Managers, officers, employees and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company or Selling Stockholder. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
In the event that the indemnified parties are entitled to seek
indemnity or contribution hereunder against any loss, claim, damage, liability
or action incurred with respect to a final judgment from a trial court then, as
a precondition to any indemnified party obtaining indemnification or
contribution from the Selling Stockholder, the indemnified parties shall first
obtain a final judgment from a trial court that such indemnified parties are
entitled to indemnity or contribution under this Agreement with respect to such
loss, claim, damage, liability or action (the "Final Judgment") from the Company
and the Selling Stockholder and shall seek to satisfy such Final Judgment in
full from the Company by making a written demand upon the Company for such
satisfaction. Only in the event such Final Judgment shall remain unsatisfied in
whole or in part 30 days following the date of receipt by the Company of such
demand shall any indemnified party have the right to take action to satisfy such
Final Judgment by making demand directly on the Selling Stockholder (but only if
and to the extent the Company has not already satisfied such Final Judgment,
whether by settlement, release or otherwise). The indemnified parties may
exercise this right to first seek to obtain payment from the Company and
thereafter obtain payment from the Selling Stockholder without regard to the
pursuit by any party of its rights to the appeal of such Final Judgment. The
indemnified parties shall, however, be relieved of their obligation to first
obtain a Final Judgment, seek to obtain payment from the Company with respect to
such Final Judgment or, having sought such payment, to wait such 30 days after
failure by the Company to immediately satisfy such Final Judgment if (i) the
Company files a petition for relief under the United States Bankruptcy Code or
any similar foreign law relating to relief of debtors ("Bankruptcy Law"), (ii)
an order for relief is entered against the Company in an involuntary case under
any Bankruptcy Law, (iii) the Company makes an assignment for the benefit of its
creditors or (iv) any court orders or approves the appointment of a receiver or
custodian for the Company or a substantial portion of its assets. The foregoing
provisions of this paragraph are not intended to require any indemnified party
to obtain a Final Judgment against the Company or the Selling Stockholder before
obtaining reimbursement of expenses pursuant to this Section 10.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder on the one hand and the
International Managers on the other from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder on the one hand and the International Managers on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholder on the one hand and the International Managers on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the ADSs purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholder, on the one hand, and the total underwriting discounts and
commissions received by the International Managers with respect to the ADSs
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the ADSs under this Agreement, in each case as set
forth in the
-47-
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholder or the
International Managers, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholder and the International Managers
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof
referred to above in this Section shall be deemed to include, for purposes of
this Section 10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 10(e), no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the ADSs underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The International Managers'
obligations to contribute as provided in this Section 10 (e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The International Managers severally confirm and the Company
acknowledges that the statements with respect to the public offering of the ADSs
set forth on the cover page of, the legend concerning over-allotments on the
inside front cover page of and the concession and reallowance figures appearing
under the caption "Underwriting" in, the Prospectus are correct and constitute
the only information concerning such International Managers furnished in writing
to the Company by or on behalf of the International Managers specifically for
inclusion in the Registration Statement and the Prospectus.
11. Defaulting International Managers. If, on any Delivery Date, any
International Manager defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting International Managers shall be
obligated to purchase the ADSs which the defaulting International Manager agreed
but failed to purchase on such Delivery Date in the respective proportions which
the number of the Firm Shares set opposite the name of each remaining non-
defaulting International Manager in Schedule 1 hereto bears to the total number
of Firm Shares set opposite the names of all the remaining non-defaulting
International Managers in Schedule 1 hereto; provided, however, that the
remaining non-defaulting
-48-
International Managers shall not be obligated to purchase any of the ADSs on
such Delivery Date if the total number of ADSs which the defaulting
International Manager or International Managers agreed but failed to purchase on
such date exceeds 9.09% of the total number of ADSs to be purchased on such
Delivery Date, and any remaining non-defaulting International Manager shall not
be obligated to purchase more than 110% of the number of ADSs which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting International
Managers, or those other underwriters satisfactory to the Lead Managers who so
agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the ADSs to be purchased on
such Delivery Date. If the remaining International Managers or other
underwriters satisfactory to the Lead Managers do not elect to purchase the ADSs
which the defaulting International Manager or International Managers agreed but
failed to purchase on such Delivery Date, this Agreement (or, with respect to
the Second Delivery Date, the obligation of the International Managers to
purchase, and of the Company to sell, the Option Shares) shall terminate without
liability on the part of any non-defaulting International Manager or the Company
or the Selling Stockholder, except that the Company and the Selling Stockholder
will continue to be liable for the payment of expenses to the extent set forth
in Sections 8 and 13. As used in this Agreement, the term "International Manager
" includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 11, purchases Firm Shares which a defaulting International Manager
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company and the Selling Stockholder
for damages caused by its default. If other underwriters are obligated or agree
to purchase the ADSs of a defaulting or withdrawing International Manager,
either the Lead Managers or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the International Managers may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
12. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and received
by the Company and the Selling Stockholder prior to delivery of and payment for
the ADSs if, prior to that time, any of the events described in Sections 9(l) or
9(n), shall have occurred or if the International Managers shall decline to
purchase the ADSs for any reason permitted under this Agreement.
13. Reimbursement of International Managers' Expenses. If either the
Company or the Selling Stockholder shall fail to deposit the Shares pursuant to
the terms of the Deposit Agreement and tender the ADSs for delivery to the
International Managers by
-49-
reason of any failure, refusal or inability on the part of the Company or the
Selling Stockholder to perform any agreement on its part to be performed, or if
any other condition of the International Managers' obligations hereunder
required to be fulfilled by the Company or the Selling Stockholder is not
fulfilled, the Company and the Selling Stockholder will reimburse the
International Managers for all reasonable out-of-pocket expenses (including fees
and disbursements of counsel) incurred by the International Managers in
connection with this Agreement and the proposed purchase of the ADSs, and upon
demand the Company and the Selling Stockholders shall pay the full amount
thereof to the Lead Managers. If this Agreement is terminated pursuant to
Section 11 by reason of the default of one or more International Managers,
neither the Company nor the Selling Stockholder shall be obligated to reimburse
any defaulting International Manager on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers International
(Europe), ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Attention: Syndicate Department
(Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant
to Section 11 (d), to the Director of Litigation, Office of the General
Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Fax: 011 301 683-
4416);
(c) if to the Selling Stockholder, shall be delivered or sent by
mail, telex or facsimile transmission to the Selling Stockholder at the
address set forth on Schedule 2 hereto;
provided, however, that any notice to an International Manager pursuant to
Section 10(d) shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the Lead Managers, which address will be supplied to any
other party hereto by the Lead Managers upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Selling Stockholder shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the International Managers by ▇▇▇▇▇▇ Brothers International (Europe) on behalf
of the Lead Managers and the Company and the International Managers shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Selling Stockholder by the Custodian. Nothing in this
section shall be deemed to constitute consent to the manner and address for
service of process in connection
-50-
with any legal proceeding (including litigation arising out of or in connection
with this Agreement), which service shall be effected as required by Section 19.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company, the Selling Stockholder and their personal representatives and
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company and the Selling
Stockholder contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any International Manager
within the meaning of Section 15 of the Securities Act and for the benefit of
each U.S. Underwriter (and controlling persons thereof) who offers or sells any
ADSs in accordance with the terms of the Agreement Between U.S. Underwriters and
International Managers and (B) the indemnity agreement of the International
Managers contained in Section 10(c) of this Agreement shall be deemed to be for
the benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 16, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholder and the
International Managers contained in this Agreement or made by or on behalf on
them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the ADSs and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
19. Consent to Jurisdiction. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby ("Related Proceedings") may be instituted
in the federal courts of the United States of America located in the City of New
York or the courts of the State of New
-51-
York in each case located in the Borough of Manhattan in the City of New York
(collectively, the "Specified Courts"), and irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "Related Judgment"), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. The parties further agree that service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum. Each party not located in the United States hereby
irrevocably appoints CT Corporation System, which currently maintains a New York
City office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America, as its agent to receive service of process or other legal summons for
purposes of any such action or proceeding that may be instituted in any state or
federal court in the City and State of New York.
20. Entire Agreement. This Agreement contains that entire agreement
with respect to the subject matter hereof and supersedes any prior agreement,
arrangement or understanding among the International Managers, the Selling
Stockholder and the Company with respect to the subject matter hereto. This
Agreement also supersedes in its entirety the Engagement Letter, dated [ ], by
and between the International Managers and the Company.
21. Judgment Currency. (a) Each of the Company and the Selling
Stockholder severally agrees to indemnify each International Manager, its
officers and employees and each person, if any, who controls any International
Manager within the meaning of Section 15 of the Securities Act, (b) each of the
Selling Stockholder and each International Manager severally, severally agrees
to indemnify the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, and (c) each International
Manager severally, and the Company, severally agrees to indemnify the Selling
Stockholder, in each case against any loss incurred, as incurred, as a result of
any judgment being given in connection with this Agreement, the Prospectus or
the Registration Statement for which indemnification is provided by such person
pursuant to Section 10 of this Agreement and any such judgment or order being
paid in a currency (the "Judgment Currency") other than U.S. dollars as a result
of any variation as between (i) the spot rate of exchange in New York at which
the Judgment Currency would have been convertible into U.S. dollars as of the
date such judgment or order is entered, and (ii) the spot rate of exchange at
which the indemnified party is first able to purchase U.S. dollars with the
amount of the Judgment Currency actually received
-52-
by the indemnified Party. If, alternatively, the indemnified party receives a
profit as a result of such currency conversion, it will return any such profits
to the indemnifying party (after taking into account any taxes or other costs
arising in connection with such conversion and repayment). The foregoing
indemnity shall constitute a separate and independent, several and not joint,
obligation of the Company, the International Managers and the Selling
Stockholder and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, the relevant currency.
22. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
23. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-53-
If the foregoing correctly sets forth the agreement among the Company,
the Selling Stockholder and the International Managers, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
ANTENNA TV S.A.
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: _______________________
Name:
Title:
-54-
Accepted:
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
BT ALEX. ▇▇▇▇▇ INTERNATIONAL, a division
of Bankers Trust International PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
For themselves and as Lead Managers of the several International Managers named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
By _________________________
Authorized Representative
SCHEDULE 1
INTERNATIONAL MANAGERS Number of ADSs
---------------------- --------------
▇▇▇▇▇▇ Brothers International (Europe)..................
BT Alex. ▇▇▇▇▇ International, a division of
Bankers Trust International PLC........................
Salomon Brothers International Limited..................
Total: ___________
===========
SCHEDULE 2
Name and address of Selling Stockholder Number of ADSs
--------------------------------------- ==============
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Total......................................... ================
SCHEDULE A
SCHEDULED ENTITIES
1. Pacific Broadcast Distribution Ltd.
2. Audiotex S.A.
3. Antenna R.T. Enterprises S.A.
4. Antenna Spoudastiki Ltd.
Form of Lock-Up A
(for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Globecast Holdings Limited,
Altavista Global Holdings Limited
and
Praxis Global Investments Limited)
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
BT ALEX. ▇▇▇▇▇ INTERNATIONAL, a division of
Bankers Trust International PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
As Lead Managers of the
several International Underwriters
c/▇ ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
One ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
The undersigned understands that you and certain other firms propose
to enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares of
capital stock, nominal value GRD 100 per share (the "Capital Stock"), of Antenna
TV S.A. (the "Company") and that the Underwriters propose to reoffer the Shares
to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of ▇▇▇▇▇▇
Brothers International (Europe), the undersigned will not, directly or
indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter
into any transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
Capital Stock (including, without limitation, Capital Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and Capital Stock that may
be issued upon exercise of any option or warrant) or securities convertible
-2-
into or exchangeable for Capital Stock owned by the undersigned on the date of
execution of this Lock-Up Letter Agreement or on the date of the completion of
the Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Capital Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Capital Stock or other
securities, in cash or otherwise, in each case for a period of 180 days after
the date of the final Prospectus relating to the Offering; provided, however,
that the foregoing provision shall not apply to (A) transfers by way of testate
or intestate succession or by operation of law, (B) transfers to members of the
immediate family of the undersigned or to a trust, partnership, limited
liability company or other entity, all of the beneficial interests of which are
held by the undersigned, (C) transfers to charitable institutions for no
consideration or (D) transfers by the undersigned to the prior registered
holders of such shares which transfers in the opinion of counsel to the Company
reasonably acceptable to ▇▇▇▇▇▇ Brothers International (Europe) are legally
necessary in order for the Company to be in compliance with applicable Greek
media laws; and provided, further, in the case of transfers pursuant to clauses
(A), (B), (C) or (D), the transferee shall have agreed to be bound by the
restrictions in this paragraph.
In furtherance of the foregoing, the Company and its Transfer Agent
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the ADRs evidencing the ADSs, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company, the Underwriters and the
Stockholder selling ADSs in the Offering will proceed with the offering in
reliance on this Lock-Up Letter Agreement.
-3-
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Lock-Up Letter Agreement and
that, upon request, the undersigned will execute any additional documents
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
[NAME OF SHAREHOLDER]
By __________________________
Name:
Title:
Dated: ____________________
Form of Lock-Up B
(for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Holnest Investments
Limited and Efstathios
Gourdomichalis)
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
BT ALEX. ▇▇▇▇▇ INTERNATIONAL, a division
of Bankers Trust International PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
As Lead Managers of the
several International Managers
c/▇ ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
One ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
The undersigned understands that you and certain other firms propose
to enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares of
capital stock, nominal value GRD 100 per share (the "Capital Stock"), of Antenna
TV S.A. (the "Company") and that the Underwriters propose to reoffer the Shares
to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of ▇▇▇▇▇▇
Brothers International (Europe), the undersigned will not, directly or
indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter
into any transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
Capital Stock (including, without limitation, Capital Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and Capital Stock that may
be issued upon exercise of any option or warrant) or securities convertible into
or exchangeable for Capital Stock owned by the undersigned on the date of
execution of this Lock-Up Letter Agreement or on the date of the completion of
the Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in
-2-
part, any of the economic benefits or risks of ownership of such Capital Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Capital Stock or other securities, in cash or otherwise,
in each case for a period of 180 days after the date of the final Prospectus of
the Offering; provided, however, that the foregoing provisions shall not apply
to (A) transfers by way of testate or intestate succession or by operation of
law, (B) transfers to members of the immediate family of the undersigned or to a
trust, partnership, limited liability company or other entity, all of the
beneficial interests of which are held by the undersigned or (C) transfers to
charitable institutions for no consideration; and provided, further, that in the
case of transfers pursuant to clauses (A), (B) or (C), the transferee shall have
agreed to be bound by the restrictions in this paragraph.
In furtherance of the foregoing, the Company and its Transfer Agent
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the ADRs evidencing the ADSs, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company, the Underwriters and the
Stockholder selling ADSs in the Offering will proceed with the offering in
reliance on this Lock-Up Letter Agreement.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Lock-Up Letter Agreement and
that, upon request, the undersigned will execute any additional documents
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
[NAME OF SHAREHOLDER]
By ________________________
Name:
Title:
Dated: ____________________
