NBG » Topics » Athens 10232, Greece,

This excerpt taken from the NBG 20-F filed Jul 2, 2007.

Athens 10232, Greece,

Attention: The Chairman/Chief Executive Officer

or at such other address and/or telefax number as either Party may hereafter furnish to the other by written notice, as herein provided.

12.05   Applicable Law.—This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of Turkey.

12.06   Payment.—Unless otherwise provided for in this Agreement:

(i)         any payment due by any Party to the other Party, according to the provisions of this Agreement shall be made on the due date thereof, with value at such date, in immediately available funds by wire transfer to the bank account designated by the payee at least three (3) Business Days prior to the date on which the payment is due (which transfer shall be confirmed in writing to the payee by a primary credit institution reasonably acceptable to the same) or by such other method as the payee may reasonably request at least three (3) Business Days prior to the date on which the payment is due;

(ii)       all amounts to be paid pursuant to this Agreement shall be paid in USD.

12.07   Delayed Payments and Interest.—Unless otherwise provided for in this Agreement, without prejudice to any other right or remedy provided by Law or otherwise, in the event of a delay (including any delay due to causes of force majeure) in the payment of any amount to be paid under this Agreement, interest shall be due, for the period of such delay, at a rate per annum equal to 200 basis points over the Agreed Rate.

12.08   Language.—Except for certain documents contained in the Schedules hereto, which are in languages other than English, this Agreement shall be executed in the English language, which shall be the only language governing this Agreement.

12.09   Taxes and Other Expenses.—Except as otherwise expressly provided in other Sections of this Agreement, any cost, tax, impost, duty or charge arising in connection herewith, or with the consummation of the purchase and sale of the Shares contemplated hereby, shall be borne and paid as follows:

(i)         any income and capital gains taxes due as a consequence of the sale of the Shares and the Founders’ Shares shall be borne and paid for by the Sellers;

(ii)       the Purchaser and the Sellers shall each pay the fees, expenses and disbursements they respectively incur in connection with the negotiation, preparation and implementation of this Agreement, including (without limitation) any fees and disbursements owing to their respective auditors, advisors and legal counsel, including, for the avoidance of doubt, the fees of Morgan Stanley acting as financial advisor to the Sellers (which fees shall be paid by the Sellers and not by the Purchaser or the Companies) and the fees of Credit Suisse and Goldman Sachs International acting as financial advisor to the Purchaser (which fees shall be paid by the Purchaser and not by the Sellers),

(iii)      any notarial fees and applicable stamp taxes (and amounts to be paid to BRSA under Article 18 of the Banking Law] in respect of the sale of the Shares and the Founders’ Shares (but not, for the avoidance of doubt, in respect of the sale of the Take-Out Assets, which shall be paid by Fiba Holding A.S.) shall be borne by the Purchaser.


12.10   Schedules.   All Schedules attached to this Agreement are incorporated herein and made a part hereof as fully as if written in this Agreement.

12.11   Due diligence.   Without prejudice to its rights under this Agreement (but subject to the terms set out herein) the Purchaser acknowledges and declares that it has carried out a Due Diligence relating to the Companies satisfactory in all material respects.

12.12   No Inducement or Reliance; Independent Assessment.—With respect to Target and any other rights or obligations to be transferred hereunder or pursuant hereto, the Purchaser declares and states that it has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by Sellers, any Affiliate of the Sellers, Target, any Subsidiary, or any of their agent, employee, attorney, advisor or other representative or by any other Person representing or purporting to represent the Sellers, that are not expressly set forth in this Agreement, whether or not any such representations, warranties or statements were made in writing or orally, and none of the Sellers, any Affiliate of the Sellers, or any agent, employee, attorney, other representative of the Sellers or other Person shall have or be subject to any liability to the Purchaser or any other Person resulting from the distribution to the Purchaser, or Purchaser’s use of, any such information and any information, documents or material made available in the Data Room or pursuant to Management Meetings or in any other form in expectation of the transactions contemplated hereby. This clause shall not limit or exclude any liability of the Sellers for, or remedy of the Purchaser in respect of, fraudulent misrepresentation.

12.13   Severability.—If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable under the laws of any jurisdiction, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired. The Parties shall nevertheless negotiate in good faith in order to agree the terms of mutually satisfactory provisions, achieving as closely as possible the same commercial effect, to be substituted for the provisions so found to be void or unenforceable.

12.14   Further Assurances.—Each Party to this Agreement covenants and agrees that it will, at the request and expense of the requesting Party, execute and deliver such documents, including, without limitation, all such additional conveyances, transfers, consents and other assurances and do all such other acts and things as the other Party hereto, acting reasonably, may from time to time request to be executed or done in order to evidence better or perfect or effectuate any provision of this Agreement or of any agreement or other document executed pursuant to this Agreement or any of the respective obligations intended to be created hereby or thereby. The Sellers shall provide, and prior to Closing shall procure that the Companies shall provide, all such assistance and information as the Purchaser may reasonably request with respect to the preparation by the Purchaser of any offering or listing document relating to any rights issue or other equity offering by the Purchaser to finance the acquisition of the Shares and the Founders Shares and the Tender Offers.

12.15   Right to Designate.—(a) The Purchaser may designate one or more companies to purchase the Shares and to cause any one or more companies to pay any sums expressed to be payable hereunder by the Purchaser, according to the terms and conditions of this Agreement, provided that such designation is made in accordance with the following provisions:

(i)         each designation will be sufficiently made if notified in writing to the Sellers together with the written acceptance of the designee;

(ii)       any designation pursuant hereto will be notified to the Sellers within and not later than fifteen (15) Business Days prior to the Closing Date; and

(iii)      each designee will be an Affiliate of the Purchaser.


(b)        The Purchaser shall continue to be jointly and severally liable with its designee in respect of the punctual and exact performance by the latter of all duties and obligations arising under, or in connection with, this Agreement.

(c)        If at any time, after the designation under Paragraph (a)(i) above and until any Party hereto may have any right or claim against the other Party under this Agreement, the designee ceases to be an Affiliate of the Purchaser, the Purchaser shall be obliged to purchase the Shares from the designee.

(d)        For all the purposes of this Agreement, and in particular (but without limitation) for all the purposes of the arbitration clause provided for in Article XIII (including the appointment of the arbitrators and the presentations or filings of actions, claims, demands or counter claims), the Purchaser and any designee designated by the latter pursuant to this Section 12.15 shall be considered as one and the same party, and they shall be obliged to act as one and the same party, and any notices sent to the Purchaser according to the provisions of Section 12.04 shall also be deemed to have been made to the designee, if any.

12.16   Sellers’ Representative.—(a) Each of the Sellers hereby irrevocably appoints the Sellers’ Representative as the sole representative of such Seller to act on his or her behalf for all purposes under this Agreement including for the purposes of:

(i)         delivering payment instructions to the Purchaser;

(ii)       giving and accepting notices on behalf of the Sellers;

(iii)      taking any and all actions that may be necessary or desirable, as determined by the Sellers’ Representative in its sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Transaction;

(iv)       granting any consent or approval on behalf of any one or more of the Sellers under this Agreement; and

(v)        generally taking any and all other actions and doing any and all other things provided in or contemplated by this Agreement to be performed by any one or more of the Sellers or the Sellers’ Representative on behalf of such Seller.

(b)        The Purchaser shall be entitled to rely on the exercise of the powers and authorities conferred on the Sellers’ Representative as if the relevant Seller were exercising such powers and authorities. Any notice given by the Purchaser to the Seller’s Representative shall be deemed to have been given to all of the Sellers, including any notice under Article XIII.

(c)        In the event that the Seller’s Representative is unable for whatever reason to fulfill his functions under this Section 12.16, a new person shall be designated as the Seller’s Representative by the Sellers in notice in writing to the Purchaser within thirty (30) days of such inability arising. The Purchaser may itself designate any Seller to be the new Seller’s Representative should the Sellers fail to do so within such time.

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