EXHIBIT 4.1
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AMENDED AND RESTATED AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of March 26, 2004 (this
"Agreement"), between Antenna TV S.A., a Greek societe anonyme (the "Company")
and Xx. Xxxxx Xxxxxxxx ("Xxxxxxxx").
WHEREAS, the Company made a number of investments in Euroholdings
Capital & Investment Corp. ("Euroholdings") (previously known as Athenian
Capital Holdings S.A.), a diversified holding company listed on the Athens Stock
Exchange, for an aggregate purchase price of U.S. $42.8 million (the "Aggregate
Purchase Price") and now holds 1,588,404 ordinary shares (the Company held
5,294,680 Euroholdings Shares prior to a 3 1/3 for 1 stock split), representing
approximately 14.5% of the outstanding capital of Euroholdings (the
"Euroholdings Shares");
WHEREAS, the Company's investment in Euroholdings has declined in
value;
WHEREAS, Kyriakou, as the Chairman of the Board of the Company and a
principal shareholder, is concerned about the decline in the Company's
investment in Euroholdings and the impact of such decline on the Company and its
shareholders, and on the Company's ability to undertake additional future
financings;
WHEREAS, Kyriakou and the Company entered into an agreement dated June
14, 2001 relating to the Euroholdings Shares which was scheduled to expire on
December 31, 2003 (the "Original Agreement"); and
WHEREAS, the Company concluded that it would have been subject to
certain adverse tax consequences had the purchase contemplated by the Original
Agreement been effected:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree to amend and
restate the Original Agreement, effective as of December 31, 2003, as follows:
ARTICLE I
PUT OPTION OF THE ANTENNA EUROHOLDINGS SHARES
1.1 PUT OPTION ON THE EUROHOLDINGS SHARES ON DECEMBER 31, 2008.
Subject to the terms and conditions herein set forth, Kyriakou agrees that if
(i) on December 31, 2008 the Company continues to hold any of the Euroholdings
Shares and (ii) the value of the Euroholdings Shares on such date (as measured
based on average closing prices on the Athens Stock Exchange for the preceding
20 trading days) does not exceed $26.94 per Euroholdings Share (the "Initial
Purchase Price"), then Kyriakou or third parties designated by Kyriakou will
conclude the purchase of (in any case in
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accordance with applicable regulations of the Athens Stock Exchange), the
Euroholdings Shares from the Company for an amount equal to the Initial Purchase
Price per Euroholdings Share, plus interest reflecting the Company's return on
bank deposits for such period. If on December 31, 2008 the Euroholdings Shares
are not listed on the Athens Stock Exchange, the value of the Euroholdings
Shares for the purposes of clause (ii) above shall be determined by an
independent third party mutually agreed upon by the Company and Kyriakou.
1.2 AUTOMATIC PURCHASE OF EUROHOLDINGS SHARES BY KYRIAKOU UPON
CERTAIN EVENTS. If (a) (i) the Company fails to pay any amounts due under the
Company's Senior Notes due 2007 or the Company's Senior Notes due 2008
(collectively, the "Notes") or (ii) there shall occur an Insolvency Event and
(b) at the time of such failure or event the Company shall hold Euroholdings
Shares, Kyriakou will immediately purchase the Euroholdings Shares from the
Company on such date for an amount equal to the Initial Purchase Price per
Euroholdings Share, plus interest reflecting the Company's return on bank
deposits to the Default Purchase Date. For purposes of the Agreement, an
"Insolvency Event" shall mean the occurrence of any of the events specified in
Section 6.01(g) or (h) of either of the indentures governing the Notes.
1.3 PUT OPTION ON THE EUROHOLDINGS SHARES PRIOR TO DECEMBER 31,
2008.
(a) Subject to the terms and conditions herein set forth,
the Company agrees that if the Company elects at any time prior to December 31,
2008 to dispose of all or part of the Euroholdings Shares (other than pursuant
to this Agreement), then the Company shall offer such Euroholdings Shares first
to Kyriakou, by sending written notice (an "Offering Notice") to Kyriakou, which
shall state (i) the number of Euroholdings Shares proposed to be disposed of
(the "Offered Shares"); (ii) in the case of a negotiated sale, the proposed
purchase price per Offered Share and in the case of market sale, the market
price; and (iii) the terms and conditions of such sale.
(b) If Kyriakou receives an Offering Notice, he shall
have, by written notice to the Company within 15 days of receipt of the Offering
Notice, to purchase the Offered Shares himself, or to designate third parties to
do so, (in any case in accordance with applicable regulations of the Athens
Stock Exchange), for the greater of (i) the Initial Purchase Price per Offered
Share or (ii) the purchase price per share offered by a third party purchaser
or, in the case of a market sale, the average of the closing prices on the
Athens Stock Exchange for the preceding 20 trading days, plus, in all cases,
interest reflecting the Company's return on bank deposits for the period the
Offered Shares were held by the Company.
(c) If Kyriakou defaults on his obligation to purchase
the Offered Shares or to designate third parties to do so pursuant to (b) above,
and if (i) the Company sells all of the Euroholdings Shares and (ii) the sale
price (the "Sale Price") is less than the Aggregate Purchase Price, then
Kyriakou will indemnify the Company for the difference between the Sale Price
and the Aggregate Purchase Price, plus interest reflecting the Company's return
on bank deposits for the period the Euroholdings Shares were held by the
Company.
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(d) If Kyriakou defaults on his obligation to purchase
the Offered Shares or to designate third parties to do so pursuant to (b) above,
and if (i) the Company sells part of the Euroholdings Shares (a "Partial Sale")
and (ii) the Sale Price is less than the Initial Purchase Price per Euroholdings
Share, then Kyriakou will indemnify the Company for the difference between (A)
the Initial Purchase Price multiplied by the number of Euroholdings Shares sold
in the Partial Sale and (B) the Sale Price multiplied by the number of
Euroholdings Shares sold in the Partial Sale, plus interest reflecting the
Company's return on bank deposits for the period the Euroholdings Shares were
held by the Company.
1.4 VALUATION OPINIONS. To the extent required by any
agreement to which it is subject, the Company will obtain a valuation opinion
for any transactions contemplated hereby.
1.5 CERTAIN ADJUSTMENTS. The number of Euroholdings Shares
purchasable pursuant to this agreement, and the purchase price of such shares,
shall be adjusted to reflect any restructuring or recapitalization of the
capital stock of Euroholdings.
ARTICLE II
MISCELLANEOUS
2.1 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
if to the Company:
Antenna TV S.A.
Xxxxxxxxx Xxxxxx 00-00,
Xxxxxxxx 000 00
Xxxxxx Xxxxxx
Telecopy: 00-0-000-0000
Attention: Xx. Xxxxx Xxxxxxxxxxxx
if to Kyriakou:
c/o Antenna TV S.A.
Xxxxxxxxx Xxxxxx 00-00,
Xxxxxxxx 000 00
Xxxxxx Xxxxxx
Telecopy: 00-0-000-0000
Attention: Xx. Xxxxx Xxxxxxxx
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All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 2.1 designate another address or
Person for receipt of notices hereunder.
2.2 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto.
2.3 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the Company or
Kyriakou in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or Kyriakou at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Company or Kyriakou from the terms of
any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Company and Kyriakou, and (ii) only in the
specific instance and for the specific purpose for which made or given.
PROVIDED, HOWEVER, the parties hereby agree that this Agreement shall terminate
on December 31, 2008 and shall not be extended beyond such date. Except where
notice is specifically required by this Agreement, no notice to or demand on the
Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances.
2.4 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
2.5 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
2.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF GREECE.
2.7 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired.
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2.8 RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
ANTENNA TV S.A.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Chief Financial Officer
/s/ Xxxxx Xxxxxxxx
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Xx. Xxxxx Xxxxxxxx
