COCA-COLA HELLENIC BOTTLING COMPANY S.A. AND CITIBANK, N.A. AS DEPOSITARY AND OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS AMENDED AND RESTATED DEPOSIT AGREEMENT DATED AS OF ___________________2010
Exhibit
(a)
COCA-COLA
HELLENIC BOTTLING COMPANY S.A.
AND
CITIBANK,
N.A.
AS
DEPOSITARY
AND
OWNERS
AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY RECEIPTS
AMENDED
AND RESTATED DEPOSIT AGREEMENT
DATED
AS OF ___________________2010
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TABLE
OF CONTENTS
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ARTICLE
1.
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DEFINITIONS.
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2
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SECTION
1.1
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American
Depositary Shares.
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2
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SECTION
1.2
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Article;
Section.
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2
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SECTION
1.3
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Articles
of Association.
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2
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SECTION
1.4
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Beneficial
Owner.
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2
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SECTION
1.5
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Commission.
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3
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SECTION
1.6
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CSD.
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3
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SECTION
1.7
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Custodian.
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3
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SECTION
1.8
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Deposit,
Deliver, Execute, Issue, Register, Surrender, Transfer, Withdraw or
Cancel.
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3
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SECTION
1.9
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4
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SECTION
1.10
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Depositary;
Corporate Trust Office.
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4
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SECTION
1.11
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DRS/Profile | ||
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SECTION
1.12
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DTC.
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4
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SECTION
1.13
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Deposited
Securities.
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4
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SECTION
1.14
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Dollars.
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5
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SECTION
1.15
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Euro.
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5
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SECTION
1.16
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Greece.
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5
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SECTION
1.17
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Issuer.
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5
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SECTION
1.18
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Owner.
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5
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SECTION
1.19
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Receipts.
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5
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SECTION
1.20
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Registrar.
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6
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SECTION
1.21
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Restricted
Securities.
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6
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SECTION
1.22
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Securities
Act.
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6
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SECTION
1.23
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Shares.
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6
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XXXXXXX
0.00
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Xxxxxx
Xxxxxx.
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6
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ARTICLE
2.
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FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.
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6
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SECTION
2.1
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Form
and Transferability of Receipts.
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6
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SECTION
2.2
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Deposit
of Shares.
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8
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SECTION
2.3
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Execution
and Delivery of Receipts.
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9
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SECTION
2.4
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Transfer
of Receipts; Combination and Split up of Receipts.
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10
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SECTION
2.5
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Surrender
of Receipts and Withdrawal of Shares.
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10
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SECTION
2.6
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Limitations
on Execution and Delivery, Transfer and Surrender of
Receipts.
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12
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SECTION
2.7
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Lost
Receipts, etc.
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13
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SECTION
2.8
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Cancellation
and Destruction of Surrendered Receipts.
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13
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SECTION
2.9
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Pre
Release of Receipts.
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13
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ARTICLE
3.
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CERTAIN
OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.
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14
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SECTION
3.1
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Filing
Proofs, Certificates and Other Information.
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14
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SECTION
3.2
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Liability
of Owner for Taxes.
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15
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SECTION
3.3
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Warranties
on Deposit of Shares.
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15
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SECTION
3.4
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Compliance
with Information Requests.
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16
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ARTICLE
4.
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THE
DEPOSITED SECURITIES.
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16
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SECTION
4.1
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Cash
Distributions.
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16
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SECTION
4.2
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Distributions
Other Than Cash, Shares or Rights.
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17
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SECTION
4.3
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Distributions
in Shares.
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18
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SECTION
4.4
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Rights.
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18
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SECTION
4.5
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Conversion
of Foreign Currency.
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20
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SECTION
4.6
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Fixing
of Record Date.
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22
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SECTION
4.7
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Voting
of Deposited Securities.
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22
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SECTION
4.8
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Changes
Affecting Deposited Securities.
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24
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SECTION
4.9
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Reports.
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24
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SECTION
4.10
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Lists
of Owners.
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25
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SECTION
4.11
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Texation;
Withholding.
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25
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ARTICLE
5.
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THE
DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
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26
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SECTION
5.1
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Maintenance
of Office and Transfer Books by the Depositary.
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26
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SECTION
5.2
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Prevention
or Delay in Performance by the Depositary or the Issuer.
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27
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SECTION
5.3
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Obligations
of the Depositary, the Custodian and the Issuer.
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28
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SECTION
5.4
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Resignation
and Removal of the Depositary.
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29
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SECTION
5.5
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The
Custodians.
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30
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SECTION
5.6
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Notices
and Reports.
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31
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SECTION
5.7
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Distribution
of Additional Shares, Rights, etc.
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31
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SECTION
5.8
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Indemnification.
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32
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SECTION
5.9
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Charges
of Depositary.
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33
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SECTION
5.10
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Retention
of Depositary Documents.
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36
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SECTION
5.11
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Exclusivity.
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36
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SECTION
5.12
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List
of Restricted Securities Owners.
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36
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ARTICLE
6.
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AMENDMENT
AND TERMINATION.
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37
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SECTION
6.1
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Amendment.
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37
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- ii
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SECTION
6.2
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Termination.
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37
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ARTICLE
7.
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MISCELLANEOUS.
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38
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SECTION
7.1
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Counterparts.
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38
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SECTION
7.2
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No
Third Party Beneficiaries.
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39
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SECTION
7.3
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Severability.
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39
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SECTION
7.4
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Owners
and Beneficial Owners as Parties; Binding Effect.
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39
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SECTION
7.5
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Notices.
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39
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SECTION
7.6
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Governing
Law; Submission to Jurisdiction
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40
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SECTION
7.7
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Compliance
with U.S. Securities Laws.
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41
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SECTION
7.8
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Appointment
of Agent for Service of Process.
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42
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SECTION
7.9
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Survival.
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42
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SECTION
7.10
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Headings.
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42
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- iii
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AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT
AGREEMENT dated as of ____________, 2010 among COCA-COLA HELLENIC
BOTTLING COMPANY S.A., incorporated under the laws of The Hellenic Republic, and
its successors (herein called the Issuer), CITIBANK, N.A., a national banking
association organized under the laws of the United States of America acting in
its capacity as depositary, and any successor depositary hereunder (herein
called the Depositary), and all Owners and Beneficial Owners from time to time
of American Depositary Receipts issued hereunder.
W I T N E
S S E T H :
WHEREAS, the Issuer, The Bank
of New York Mellon, as depositary, and all Owners and Beneficial Owners from
time to time of American Depositary Receipts issued thereunder entered into a
deposit agreement dated as of October 9, 2002 (the “Original Deposit
Agreement”) to provide
for the deposit of Shares (as hereinafter defined) of the Issuer with the
Custodian as agent of The Bank of New York Mellon for the purposes set forth in
such Original Deposit Agreement, for the creation of American depositary shares
representing the Shares so deposited and for the execution and delivery of
American depositary receipts ("Old Receipts") evidencing the American depositary
shares; and
WHEREAS, pursuant to Section
5.4 of the Original Deposit Agreement, the Issuer removed The Bank of New York
Mellon, as depositary, and appointed Citibank, N.A. as successor depositary
(hereinafter called the “Depositary”); and
WHEREAS, the Issuer desires to
amend and restate the Original Deposit Agreement and establish with the
Depositary an ADR facility to provide inter alia for the deposit of
the Shares and the creation of American Depositary Shares representing the
Shares so deposited and for the execution and delivery of American Depositary
Receipts evidencing such American Depositary Shares; and
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in the Deposit Agreement (as hereinafter defined); and
WHEREAS, American Depositary
Receipts are to be substantially in the form of Exhibit A annexed
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement.
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between the
parties hereto as follows:
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ARTICLE
1.
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DEFINITIONS.
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The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.1 American Depositary
Shares.
The term
“American Depositary Shares” or “ADSs”, shall mean the securities representing
the interests in the Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent one (1)
Share, until there shall occur a distribution upon Deposited Securities covered
by Section 4.3 or a change in Deposited Securities covered by Section 4.8 with
respect to which additional Receipts are not executed and delivered, and
thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities as provided in such Sections. American
depositary shares outstanding under the Original Deposit Agreement as of the
date hereof shall, from and after the date hereof, for all purposes be treated
as American Depositary Shares issued and outstanding hereunder and shall, from
and after the date hereof, be subject to the terms and conditions of the Deposit
Agreement in all respects, except that any amendment of the Original Deposit
Agreement effected under the terms of the Deposit Agreement which prejudices any
substantial existing right of Owners or Beneficial Owners shall not become
effective as to Owners and Beneficial Owners of American depositary shares until
the expiration of thirty (30) days after notice of the amendments effected by
the Deposit Agreement shall have been given to the Owners of American
depositary shares outstanding under the Original Deposit Agreement as of the
date hereof.
SECTION
1.2 Article;
Section.
Wherever
references are made in this Deposit Agreement to an “Article” or “Articles” or
to a “Section” or “Sections”, such references shall mean an article or articles
or a section or sections of this Deposit Agreement, unless otherwise required by
the context.
SECTION
1.3 Articles of
Association.
The term
“Articles of Association” shall mean the Articles of Association of the Issuer,
as the same may be amended or supplemented from time to time.
SECTION
1.4 Beneficial
Owner.
The term
“Beneficial Owner” shall mean any person owning any beneficial interest in a
Receipt issued hereunder but who is not the Owner of such Receipt. Persons who own
beneficial interests in the American depositary shares issued under the terms of
the Original Deposit Agreement and outstanding as of the date hereof shall, from
and after the date hereof, be treated as Beneficial Owners of ADS(s) under the
terms hereof.
- 2
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SECTION
1.5 Commission.
The term
“Commission” shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
SECTION
1.6 CSD.
The term
“CSD” shall mean Central Securities Depositary S.A., which provides the
book-entry settlement system for equity securities in Greece, or any successor
entity thereto.
SECTION
1.7 Custodian.
The term
“Custodian” shall mean as of the date hereof, Citibank International plc, Greece
Branch, having its principal office at 0 Xxxxxxx Xxx., 00000 Xxxxxx, Xxxxxx, as
the custodian for the purposes of the Deposit Agreement, and any other firm or
corporation which may hereafter be appointed by the Depositary pursuant to the
terms of Section 5.5, as substitute or additional custodian or custodians
hereunder, as the context shall require and shall also mean all of them
collectively.
SECTION
1.8 Deposit, Deliver,
Execute, Issue,
Register, Surrender, Transfer, Withdraw or Cancel.
(a) The
terms “deposit”, “deliver”, “execute”, “issue”, “register”, “surrender”,
“transfer”, “withdraw” or “cancel”, when used with respect to Shares and
Deposited Securities, shall refer, where the context requires, to an entry or
entries or an electronic transfer or transfers in an account or accounts
maintained by institutions authorized under Greek law, including the rules and
regulations of the CSD, to effect transfers of securities and not to the
physical transfer of certificates representing the Shares.
(b) The
term “deliver”, or its noun form, when used with respect to American Depositary
Shares and Receipts, means (i) the electronic delivery of such security by means
of book-entry transfer, as appropriate, including, without limitation, through
DRS/Profile or to an account or accounts at DTC designated by the person
entitled to the delivery or (ii) if requested by the person entitled to the
delivery, to physical delivery of the certificate representing such security at
the Corporate Trust Office of the Depositary of one or more Receipts. The term
“surrender”, when used with respect to Receipts, means (i) one or more
book-entry transfers of American Depositary Shares to the DTC account of the
Depositary or (ii) surrender to the Depositary at its Corporate Trust Office of
one or more Receipts. With respect to DRS/Profile Receipts, the terms
"execute",
"issue", "register", "surrender", "transfer" or "cancel" refers to
applicable entries or movements to or within DRS/Profile.
- 3
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SECTION
1.9 Deposit
Agreement.
The term
“Deposit Agreement” shall mean this Amended and Restated Deposit Agreement, as
the same may be amended from time to time in accordance with the provisions
hereof.
SECTION
1.10 Depositary; Corporate Trust
Office.
The term
“Depositary” shall mean Citibank, N.A., a national banking association organized
under the laws of the United States, in its capacity as depositary under the
terms of this Deposit Agreement, and any successor as depositary
hereunder. The term "Corporate Trust Office", when used with respect
to the Depositary, shall mean the office of the Depositary which at the date of
this Agreement is 000 Xxxxxxxxx Xx., Xxx Xxxx, Xxx Xxxx, 00000.
SECTION
1.11 DRS/Profile.
The term
“DRS/Profile” shall mean the system for the uncertificated registration of
ownership of securities pursuant to which ownership of ADSs is maintained on the
books of the Depositary without the issuance of a physical certificate and
transfer instructions may be given to allow for the automated transfer of
ownership between the books of DTC and the Depositary. Ownership of
ADSs held in DRS/Profile is evidenced by periodic statements issued by the
Depositary to the Owners entitled thereto.
SECTION
1.12 DTC.
The term
“DTC” shall mean The Depository Trust Company, and any successor
thereto.
SECTION
1.13 Deposited
Securities.
The term
“Deposited Securities” as of any time shall mean Shares at such time deposited
or deemed to be deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.5. Notwithstanding anything
else contained herein, the securities, property and cash delivered to the
Custodian in respect of American depositary shares outstanding as of the date
hereof under the Original Deposit Agreement and defined as “Deposited
Securities” thereunder shall, for all purposes from and after the date hereof,
be considered to be, and treated as, Deposited Securities hereunder in all
respects.
- 4
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SECTION
1.14 Dollars.
The term
“Dollars” shall mean United States dollars.
SECTION
1.15 Euro.
The term
“Euro” shall mean the lawful single currency of the member states participating
in the third stage of the European Economic and Monetary Union, including the
Hellenic Republic, pursuant to the Treaty establishing the European Communities,
as amended by the Treaty on European Union.
SECTION
1.16 Greece.
The term
“Greece” shall mean The Hellenic Republic.
SECTION
1.17 Issuer.
The term
“Issuer” shall mean Coca-Cola Hellenic Bottling Company S.A., incorporated under
the laws of The Hellenic Republic, and its successors.
SECTION
1.18 Owner.
The term
“Owner” shall mean the person in whose name a Receipt is registered on the books
of the Depositary maintained for such purpose. An Owner shall be deemed to have
all requisite authority to act on behalf of those Beneficial Owners of the
Receipts registered in such Owner's name. The Owners (as defined
in the Original Deposit Agreement) of American depositary shares issued under
the terms of the Original Deposit Agreement and outstanding as of the date
hereof shall from and after the date hereof, become Owners under the terms of
the Deposit Agreement.
SECTION
1.19 Receipts.
The term
“Receipts” shall mean the American Depositary Receipts or DRS/Profile statements
issued by the Depositary hereunder evidencing American Depositary Shares issued
under the terms of this Deposit Agreement, as such Receipts may be amended from
time to time in accordance with the provisions of this Deposit
Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held in DTC, be in the
form of a global certificate. References to Receipts shall include physical
certificated Receipts as well as ADSs issued through DRS/Profile, unless the
context otherwise requires. Notwithstanding anything else contained herein or
therein, the American depositary receipts issued and outstanding under the terms
of the Original Deposit Agreement shall, from and after the date hereof, be
treated as Receipts issued hereunder and shall, from and after the date hereof,
be subject to the terms hereof in all respects.
- 5
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SECTION
1.20 Registrar.
The term
“Registrar” shall mean any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
SECTION
1.21 Restricted
Securities.
The term
“Restricted Securities” shall mean Shares, or Receipts representing such Shares,
which are acquired directly or indirectly from the Issuer or its affiliates (as
defined in Rule 144 under the Securities Act) in a transaction or chain of
transactions not involving any public offering or which are subject to resale
limitations under Regulation D under that Act or both, or which are held by an
officer, director (or persons performing similar functions) or other affiliate
of the Issuer, or which would require registration under the Securities Act in
connection with the offer and sale thereof in the United States, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or Greece, or under a shareholder agreement or the Articles of
Association.
SECTION
1.22 Securities
Act.
The term
“Securities Act” shall mean the United States Securities Act of 1933, as from
time to time amended.
SECTION
1.23 Shares.
The term
“Shares” shall mean the Issuer’s ordinary shares, heretofore validly issued and
outstanding and fully paid, nonassessable and free of any pre-emptive rights of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares in dematerialized (book-entry) form.
XXXXXXX
0.00 Xxxxxx
Xxxxxx.
The term
“United States” shall, except as otherwise provided in this Deposit Agreement or
the Receipts, mean the United States of America, its territories and
possessions, any State of the United States, and the District of
Columbia.
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ARTICLE
2.
|
FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.
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SECTION
2.1 Form
and Transferability of Receipts.
Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. No physical certificated Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary and, if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized officer of the Registrar. The Depositary shall maintain
books on which each Receipt so executed and delivered, in the case of physical
certificated Receipts, and each Receipt issued through the DRS/Profile, in
either case as hereinafter provided and the transfer of each such Receipt shall
be registered. Physical certificated Receipts bearing the manual or
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts. The Receipts shall
bear a CUSIP number that is different from any CUSIP number assigned to any
depositary shares issued under any other depositary receipt facility for
Shares.
- 6
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The
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or modifications not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or the Issuer or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or as may be required by any book-entry system in which the
ADSs are held, or otherwise.
Notwithstanding
anything in this Deposit Agreement or in the Receipt to the contrary, American
Depositary Shares shall be evidenced by Receipts issued through DRS/Profile
unless physical certificated Receipts are specifically requested by the
Owner. Owners and Beneficial Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are physical certificated Receipts or Receipts issued
through DRS/Profile.
All ADSs
held through DTC will be registered in the name of the nominee for DTC
(currently Cede & Co.) and unless issued by the Depositary in uncertificated
form the ADSs registered in the name of Cede & Co. will be evidenced by one
or more Receipt(s) in the form of a “Balance Certificate,” which will provide
that it represents the aggregate number of ADSs from time to time indicated in
the records of the Depositary as being issued hereunder.
Title to
a Receipt (and to the American Depositary Shares evidenced thereby), when
properly endorsed or accompanied by proper instruments of transfer, shall be
transferable by delivery with the same effect as in the case of a certificated
security in the case of receipts that are certificated; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and the
Depositary shall have no obligation and shall not be subject to any liability
under this Deposit Agreement to any holder of a Receipt unless such holder is
the Owner thereof.
- 7
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At the
request of an Owner, the Depositary shall, for the purpose of substituting a
physical certificated Receipt with a Receipt issued through DRS/Profile, or vice
versa, execute and deliver a physical certificated Receipt or DRS/Profile
statement, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or DRS/Profile statement,
as the case may be, substituted.
SECTION
2.2 Deposit
of Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to receive Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments of transfer,
or endorsement in form reasonably satisfactory to the Custodian, together with
all such certifications as may be required from the person depositing such
Shares by the Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Depositary requires, together with a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order, a Receipt or Receipts for
the number of American Depositary Shares representing such
deposit. No Share shall be accepted for deposit unless accompanied by
evidence (which may be an opinion of counsel) reasonably satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in Greece which is then performing the function of the regulation of currency
exchange. If required by the Depositary, and if applicable, Shares
presented for deposit at any time, whether or not the transfer records of the
Issuer, if applicable, are closed, shall also be accompanied by (i) an agreement
or assignment, or other instrument satisfactory to the Depositary which will
provide for the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary, as
applicable and (ii) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, any proxy or proxies as shall be
required from time to time in accordance with Greek law to entitle the Custodian
to exercise voting rights at a shareholders’ meeting. Without
limiting any other provision of this Deposit Agreement, the Depositary shall not
knowingly accept for deposit any fractional Shares or a number of Shares which
upon application of the ADS to Share ratio would give rise to fractional
American Depositary Shares.
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Deposited
Securities shall be held by the Depositary or by a Custodian for the account and
to the order of the Depositary or at such other place or places as the
Depositary shall determine.
The
Depositary agrees to cause the Custodian to place all Shares deposited under
this Deposit Agreement or any other Deposited Securities held under this Deposit
Agreement into an account separate from any other Shares or other securities
that may be held by the Custodian under any other depositary receipt facility or
otherwise.
SECTION
2.3 Execution and Delivery of
Receipts.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.2 hereunder (and
in addition, if applicable, if the transfer books of the Issuer are open, the
Depositary may in its sole discretion require a proper acknowledgment or other
evidence from the Issuer, limited to such information disclosed in such books,
that any Deposited Securities have been recorded upon the books of the Issuer,
if applicable, in the name of the Depositary or its nominee or such Custodian or
its nominee), together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or,
at the request, risk and expense of the person making the deposit, by cable,
telex or facsimile transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person or
persons entitled thereto, a Receipt or Receipts, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fees and
expenses of the Depositary for the issuance of such ADS and the execution and
delivery of such Receipt or Receipts as provided in Section 5.9, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
The
Depositary shall only deliver American Depositary Receipts evidencing whole
numbers of American Depositary Shares. Nothing herein shall prohibit
any Pre-Release (as defined below) in accordance with the terms set forth in
this Deposit Agreement.
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SECTION
2.4 Transfer of Receipts;
Combination and Split-up of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
register transfers of Receipts on its transfer books from time to time, upon any
surrender of a Receipt, by the Owner in person or by a duly authorized attorney,
properly endorsed or accompanied by, proper instruments of transfer (including
signature guarantees in accordance with standard industry practice), and duly
stamped as may be required by the laws of the State of New York and of the
United States of America and any other applicable law. Thereupon the
Depositary shall execute a new Receipt or Receipts and deliver the same to or
upon the order of the person entitled thereto.
The
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts, execute and deliver a new Receipt or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.4 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to abide by
the applicable terms of the Deposit Agreement. The Depositary will as promptly
as practicable notify the Issuer of the appointment, removal or substitution of
any co-transfer agent.
SECTION
2.5 Surrender of Receipts and
Withdrawal of Shares.
Upon
surrender at the Corporate Trust Office of the Depositary of a Receipt for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and upon payment of the fee of the
Depositary for the surrender of Receipts as provided in Section 5.9 and payment
of all taxes and governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of this Deposit Agreement or applicable law or regulation, the Owner
of such Receipt shall be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt. Delivery of such
Deposited Securities may be made by the delivery of (a) Shares to, or upon the
written order of, the person(s) designated in the order delivered to the
Depositary for such purpose and (b) any other securities, property and cash to
which such Owner is then entitled in respect of such Receipts to such Owner or
as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
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The
Depositary shall not accept a Receipt for surrender to the extent it evidences
American Depositary Shares representing a fraction of a Share. To
that extent, the Depositary shall, at its discretion, either (i) execute and
deliver a Receipt evidencing American Depositary Shares representing that
fraction, or (ii) sell or cause to be sold the fractional Share and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the Receipt.
A Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank, and
the Owner thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
delivered to a person or persons designated in such order. Thereupon
the Depositary shall direct the Custodian to deliver, subject to Sections 2.6,
3.1 and 3.2 and to the other terms and conditions of this Deposit Agreement, to
or upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the
request, risk and expense of any Owner so surrendering a Receipt, and for the
account of such Owner, the Depositary shall direct the Custodian to forward any
cash or other property (other than rights) comprising, and forward a certificate
or certificates, if applicable, and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
Neither
the Depositary nor any Custodian shall deliver Shares (other than to the Issuer
in accordance with this Deposit Agreement) or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the surrender and
cancellation of Receipts.
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SECTION
2.6 Limitations on Execution and
Delivery, Transfer and Surrender of Receipts.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, Custodian or Registrar may require payment from the
depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any laws or governmental regulations relating to
the execution and delivery of Receipts or American Depositary Shares or to the
withdrawal or delivery of Deposited Securities and any regulations the
Depositary may reasonably establish consistent with the provisions of this
Deposit Agreement, including, without limitation, this Section 2.6.
The
delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of Section 7.7
hereof. Notwithstanding any other provision of this Deposit Agreement
or the Receipts, the surrender of outstanding Receipts and withdrawal of
Deposited Securities may not be suspended subject only to (i) temporary delays
caused by closing the transfer books of the Depositary or, if applicable, the
Issuer or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) any other circumstances specifically contemplated by Section I.A(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act (the “F-6 Instructions”).
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares.
The
Depositary will comply with written instructions of the Issuer not to accept for
deposit hereunder any Shares identified in such instructions at such times and
under such circumstances as may reasonably be specified in such instructions in
order to facilitate the Issuer’s compliance with the securities laws of the
United States, Greece or any other jurisdiction.
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SECTION
2.7 Lost
Receipts, etc.
In case
any physical certificated Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt (which, in the discretion
of the Depositary may be issued through DRS/Profile unless specifically
requested otherwise) in exchange and substitution for such mutilated Receipt
upon cancellation thereof, or in lieu of and in substitution for such destroyed,
lost or stolen Receipt. Before the Depositary shall execute and
deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt,
the Owner thereof shall have (a) filed with the Depositary (i) a request for
such execution and delivery before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond
and (b) satisfied any other reasonable requirements imposed by the Depositary.
If requested by the Issuer, the Depositary will inform the Issuer as to any
destroyed, lost or stolen Receipts and any dispute relating
thereto.
SECTION
2.8 Cancellation and Destruction
of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so
cancelled, subject to Section 5.10.
SECTION
2.9 Pre-Release of
Receipts.
Subject
to the further terms and provisions of this Section 2.9, the Depositary, its
affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Issuer and its affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.2 and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.5, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the “Applicant”) to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
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The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case-by-case basis
as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the
earnings thereon, shall be held for the benefit of the Owners (other than the
Applicant).
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ARTICLE
3.
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CERTAIN
OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
RECEIPTS.
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SECTION
3.1 Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Owner or Beneficial Owners of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Issuer, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Issuer may
reasonably require by written request to the Depositary. The
Depositary may withhold the delivery or registration of transfer of any Receipt
or the distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made or such other documentation or information
provided, in each case to the Depositary’s satisfaction. The
Depositary shall provide the Issuer, as promptly as practicable, at the Issuer’s
reasonable written request and at the Issuer’s expense, copies of (i) any
such proofs of citizenship or residence, taxpayer status, or exchange control
approval which it receives from Owners and Beneficial Owners, and (ii) any
other information or documents which the Issuer may reasonably request and which
the Depositary shall request and receive from any Owner or any person presenting
Shares for deposit or ADSs for cancellation and withdrawal, unless such
disclosure is prohibited by law. Each Owner and Beneficial Owner
agrees to provide any information requested by the Issuer or the Depositary
pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Issuer if not provided by the
Owners or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Owners or Beneficial Owners.
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SECTION
3.2 Liability of Owner for
Taxes.
If any
tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any Receipt or any Deposited Securities represented
by any American Depositary Shares evidenced by such Receipt, such tax or other
governmental charge shall be payable by the Owner and Beneficial Owners of such
Receipt to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment in
full is made, and the Depositary may withhold any dividends or other
distributions, or may sell for the account of the Owner and
Beneficial Owners thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner and Beneficial
Owners of such Receipt shall remain liable for any deficiency. Every
Owner and Beneficial Owner agrees to indemnify the Depositary, the Issuer, the
Custodian, and each of their respective agents, officers, directors, employees
and affiliates for, and to hold each of them harmless from, any claims with
respect to taxes (including applicable interest and penalties thereon) arising
from any tax benefit obtained for such Owner and/or Beneficial
Owner. The obligations of Owners and Beneficial Owners of Receipts
under this Section 3.2 shall survive any transfer of Receipts, any
surrender of Receipts and withdrawal of Deposited Securities, or the termination
of this Deposit Agreement.
SECTION
3.3 Warranties on Deposit of
Shares.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares are duly authorized, validly issued,
fully paid, nonassessable and legally obtained by such person, (ii) all
pre-emptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim,
and are not, and American Depositary Shares representing those Shares would not
be, Restricted Securities and the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the delivery or
surrender of Receipt(s) evidencing American Depositary Shares representing such
Shares and the transfer of Receipts evidencing such American Depositary
Shares. If any such representations or warranties are false in any
way, the Issuer and the Depositary shall be authorized, at the cost and expense
of the person depositing Shares, to take any and all actions necessary to
correct the consequences thereof.
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SECTION
3.4 Compliance with Information
Requests.
Notwithstanding
any other provision of this Deposit Agreement, each Owner and
Beneficial Owner agrees to (a) comply with requests from the Issuer pursuant to
Greek or other applicable law, the rules and requirements of CSD or any other
electronic book-entry system by which the ADSs, Receipts or Shares may be
transferred, and any stock exchange on which the Shares, Receipts or American
Depositary Shares are, or will be, registered, traded or listed or the Articles
of Association, which are made to obtain information, inter alia, as to the
capacity in which such Owner or Beneficial Owner owns American Depositary Shares
(and Shares as the case may be) and regarding the identity of any other
person(s) interested in such American Depositary Shares (and Shares, as the case
may be) and the nature of such interest and various other matters, and (b) be
bound by and subject to applicable provisions of the laws of Greece, the
Articles of Association of the Issuer and the requirements of any stock
exchanges upon which the ADSs, Receipts or Shares are or will be registered,
traded or listed, or pursuant to any requirements of CSD or any other electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Owner and Beneficial Owner held Shares directly, in
each case whether or not they are Owners or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to
forward, upon the written request of the Issuer and at the expense of the
Issuer, any such written request from the Issuer to the Owners and to forward,
as promptly as practicable, to the Issuer any such responses to such requests
received by the Depositary. If the Issuer requests information from
the Depositary, the Custodian or the nominee of either, as the registered owner
of the Shares, the obligations of the Depositary, Custodian or such nominee, as
the case may be, shall be limited to disclosing to the Issuer the information
contained in the register.
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ARTICLE
4.
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THE
DEPOSITED SECURITIES.
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SECTION
4.1 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, subject to the provisions of Section
4.5, convert, as promptly as practicable such dividend or distribution into
Dollars and shall distribute, as promptly as practicable, the amount thus
received (net of the fees and expenses of the Depositary as provided in Section
5.9 hereof, if applicable) to the Owners entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that in the event that the Issuer or
the Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest
whole cent and so distributed to Owners entitled thereto. The Issuer
or its agent will remit to the appropriate governmental authority in Greece all
amounts, if any, required to be withheld and owing to such
agency. The Depositary will forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to file necessary reports with governmental agencies, and
the Depositary or the Issuer or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of
Receipts.
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SECTION
4.2 Distributions Other Than
Cash, Shares or Rights.
Subject
to the provisions of Section 4.11 and Section 5.9, whenever the Issuer
determines to distribute to the holders of Deposited Securities property other
than cash, shares or rights, the Issuer will give timely notice to the
Depositary. Upon receipt of a distribution covered by the preceding
sentence, the Depositary shall, after consultation with the Issuer, cause the
securities or property received by it to be distributed to the Owners entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem lawful and
reasonably practicable for accomplishing such distribution; provided, however,
that if in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act in order to
be distributed to Owners or Beneficial Owners) the Depositary reasonably deems
such distribution not to be lawful and reasonably practicable, the Depositary
may, after consultation with the Issuer, adopt such method as it may deem
reasonably practicable and lawful for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.9) shall be distributed by the Depositary to the Owners entitled
thereto as in the case of a distribution received in cash. If the Depositary is
unable to sell such property, after consultation with the Issuer and upon the
Issuer's instructions the Depositary shall either: (i) return the property to
the Issuer at the Issuer's expense (to the extent reasonably practicable), or,
(ii) if 20 business days have elapsed from the time the Depositary requests an
instruction from the Issuer, and no instruction from the Issuer to return the
property to it is received, the Issuer shall be deemed to have instructed the
Depositary to dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no consideration, and in
either of (i) or (ii) above, Owners and Beneficial Owners shall have no rights
thereto or arising therefrom. No distribution to Owners pursuant to this Section
4.2 shall be unreasonably delayed by any action of the Depositary or any of its
agents.
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The
Depositary may withhold any distribution of securities under this
Section 4.2 unless it has received satisfactory assurances, including
satisfactory documentation within the terms of Section 5.7.
SECTION
4.3 Distributions in
Shares.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may either (i) after consultation with
the Issuer and shall if the Issuer shall so request, distribute as promptly as
practicable to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11,
the payment of fees of the Depositary as provided in Section 5.9, and any
applicable U.S. securities laws or (ii) if additional American Depositary Shares
are not so distributed, each American Depositary Share issued and outstanding
after the record date fixed by the Depositary shall, to the extent permissible
by law, thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges). In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1. No distribution to Owners pursuant to this
Section 4.3 shall be unreasonably delayed by any action of the Depositary or any
of its agents.
SECTION
4.4 Rights.
In the
event that the Issuer shall offer or distribute or cause to be offered or
distributed to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any other nature, the Issuer will give
notice thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Owners. Upon receipt by the Depositary of a notice that the Issuer
wishes such rights to be made available to the Owners and receipt by the
Depositary of satisfactory documentation within the terms of Section 5.7 hereof,
the Issuer and the Depositary will consult to the extent practicable to
determine the procedure to be followed in making such rights available to any
Owners or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse.
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If at the
time of the offering of any rights the Depositary determines in its discretion
that it is lawful and reasonably practicable to make such rights available to
all Owners or to certain Owners but not to other Owners, the Depositary may,
after consultation with the Issuer and subject to the approval of the Issuer,
which approval shall not be unreasonably withheld, and to the Depositary’s
receipt of satisfactory documentation within the terms of Section 5.7,
distribute to any Owner to whom it determines the distribution to be lawful and
reasonably practicable, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate. In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will as promptly as
practicable make such rights available for delivery to such Owner upon written
notice from the Issuer to the Depositary that (a) the Issuer has elected in its
sole discretion to permit such rights to be exercised and warrants or other
instruments to be distributed and (b) such Owner has executed such documents as
the Issuer has determined in consultation with the Depositary are reasonably
required under applicable law.
If the
Depositary has distributed warrants or other instruments for rights to all or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares. Thereafter, the Issuer shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares
so purchased to be deposited pursuant to Section 2.2 of this Deposit Agreement,
and shall, pursuant to Section 2.3 of this Deposit Agreement, execute and
deliver Receipts to such Owner. In the case of a distribution
pursuant to the second paragraph of this section, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
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If the
Depositary determines in its discretion that it is not lawful and reasonably
practicable to make such rights available to all or certain Owners, but that it
is lawful and reasonably practicable to sell those rights, after consultation
with the Issuer and approval by the Issuer (such approval not to be unreasonably
withheld), it shall use reasonable efforts to sell the rights, warrants or other
instruments, in a riskless principal capacity or otherwise, by public or private
sale and upon such terms as it may reasonably deem proper, in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or reasonably practicably make such rights
available, and allocate the net proceeds of such sales (net of the fees and
expenses of the Depositary as provided in Section 5.9 and all taxes and
governmental charges payable in connection with such rights and subject to the
terms and conditions of this Deposit Agreement) for the account of such Owners
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any Receipt
or otherwise. Any such cash proceeds shall be distributed in
accordance with Section 4.1 hereof.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act, or any other applicable law, with respect to a distribution
to Owners or are registered under the provisions of such Act or other applicable
law. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act or other applicable law, the Depositary shall not
effect such distribution unless it has received such legal opinions as are
required under Section 5.7 hereof, unless waived by the Depositary.
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or reasonably practicable to make such rights available to Owners in
general or any Owner in particular, (ii) any foreign exchange exposure or loss
incurred in connection with any sale or exercise of such rights or (iii) the
content of any materials forwarded to the Owners on behalf of and at the request
of the Issuer in connection with the rights distribution.
There can
be no assurance that Owners generally, or any Owner in particular, will be given
the opportunity to receive or exercise rights on the same terms and conditions
as the holders of Shares or be able to exercise such rights. Nothing
herein shall obligate the Issuer to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
SECTION
4.5 Conversion of Foreign
Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a practicable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, as
promptly as practicable, by sale or in any other manner that it may determine in
accordance with applicable law, such foreign currency into Dollars, and such
Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
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Owners
and Beneficial Owners understand that in converting foreign currency, amounts
received on conversion are calculated at a rate which exceeds four decimal
places (the number of decimal places used by the Depositary to report
distribution rates). The excess nominal amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may reasonably deem desirable or
necessary.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not, pursuant to applicable law,
convertible on a practicable basis in whole or in part into Dollars transferable
to the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the reasonable
opinion of the Depositary is not obtainable, or if any such approval or license
is not obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If any
such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
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SECTION
4.6 Fixing
of Record Date.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting, solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall fix a record date, which date shall
be the same as the corresponding record date set by the Issuer with respect to
Shares, if any, or as soon thereafter as reasonably practicable, (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consents, to receive such notice or solicitation or to
otherwise take action or (b) on or after which each American Depositary Share
will represent the changed number of Shares. The Issuer shall give
the Depositary timely notice of any corporate action under Sections 4.1 through
4.5 and Sections 4.7 and 4.8 to facilitate coordination of such corporate action
for Owners and Beneficial Owners to the extent required under this Deposit
Agreement, including, without limitation, fixing an appropriate record
date. Subject to applicable law and the provisions of Sections 4.1
through 4.5 and to the other terms and conditions of this Deposit Agreement, the
Owners at the close of business in New York on such record date shall be
entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions, to
give or withhold such consents, to receive such notice or solicitation and to
act in respect of any other such matter.
SECTION
4.7 Voting
of Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Issuer in a timely manner and at the
Issuer’s expense and provided no U.S. legal prohibitions exist, the Depositary
shall, as soon as practicable thereafter, distribute, by mail to the extent
practicable if requested by the Issuer, to the Owners a notice, the form of
which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Issuer (or, if requested by the Issuer, a summary of
such information provided by the Issuer), (b) a statement that the Owners of
American Depositary Shares as of the close of business on a specified record
date will be entitled, subject to any applicable provision of Greek law and of
the Articles of Association, to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares, and (c) a
statement as to the manner in
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which
such instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a designated member or members of the Board of Directors
of the Issuer and (d) a statement that by instructing the Depositary as to the
exercise of voting rights with respect to the Deposited Securities such Owner
will be deemed (i) to authorize the Depositary to cause the number of Deposited
Securities evidenced by the number of American Depositary Shares held by such
Owner to be blocked for transfer, or to be registered on behalf of such Owner in
a temporary voting account ten (10) days prior to the date on which such vote is
to occur and immediately after such vote to register such Deposited Securities
in the name of the Depositary or the Custodian or their respective nominees, and
(ii) to authorize the Issuer and the Depositary to make such other arrangements
as they may deem necessary or advisable consistent with Greek law, the Articles
of Association and the terms of the Deposited Securities to permit the
Depositary to carry out such instructions, and (iii) to agree not to transfer,
surrender or otherwise dispose of such Owner's American Depositary Shares
representing such Deposited Securities until after the date such vote is to
occur; provided that this item (d) shall no longer apply in the event Greek law
changes to require alternative procedures. Upon the written request
of an Owner of a Receipt on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable, to vote or cause to be voted the amount of Deposited
Securities represented by such Receipt in accordance with the instructions set
forth in such request and will notify the Issuer in advance of its intentions to
so vote or cause to be voted such Deposited Securities as required to preserve
such voting rights. Neither the Depositary nor the Custodian shall,
under any circumstances exercise any discretion as to voting, and neither the
Depositary nor the Custodian shall vote or attempt to exercise the right to
vote, or in any way make use of for purposes of establishing a quorum or
otherwise, the Shares or other Deposited Securities, other than pursuant to and
in accordance with such instructions or deemed instructions. If
voting instructions are sought from Owners and no instructions are received by
the Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a designated member or members of the Board of Directors
of the Issuer with respect to such Deposited Securities and the Depositary shall
give a discretionary proxy to a designated member or members of the Board of
Directors of the Issuer to vote such Deposited Securities, provided, that no
such instruction shall be given with respect to any matter as to which the
Issuer informs the Depositary (and the Issuer agrees to provide such information
as promptly as reasonably practicable in writing) that (x) the Issuer does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares, provided further,
however, that no such deemed discretion shall be provided with respect to any
meeting unless and until the Depositary has received an opinion of the Issuer's
in-house legal counsel, addressed to the Depositary and in form and substance
acceptable to the Depositary, at the Issuer's sole expense, to the effect that,
(i) the granting of such discretionary proxy does not subject the Depositary to
any reporting obligations in Greece, (ii) the granting of such proxy will not
result in a violation of Greek law, rule, regulation or permit, (iii) the voting
arrangement and deemed instruction as contemplated herein will be given effect
under Greek law, and (iv) the granting of such discretionary proxy will not
result in the Shares represented by the ADSs being considered assets of the
Depositary under Greek law.
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Notwithstanding
anything contained in the Deposit Agreement or any Receipt the Depositary may,
to the extent not prohibited by law or regulations, or by the requirements of
the stock exchange on which the ADSs are listed, and subject to approval by the
Issuer, in lieu of distribution of the materials provided to the Depositary in
connection with any meeting of, or solicitation of consents or proxies from,
holders of Deposited Securities, distribute to the Owners a notice that provides
Owners with, or otherwise publicize to Owners instructions on how to retrieve
such materials or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
There can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraphs sufficiently prior to the
Instruction Date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the provisions set forth in the preceding
paragraph.
SECTION
4.8 Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.3 do not apply, upon any change
in nominal value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall, to the extent permitted by law, be treated as new
Deposited Securities under this Deposit Agreement, and American Depositary
Shares shall, subject to the provisions of this Deposit Agreement and applicable
law, thenceforth represent, in addition to the existing Deposited
Securities, if any, the new Deposited Securities so received in exchange or
conversion. Alternatively, in any such case the Depositary may, and
shall if the Issuer shall so request, subject to the terms of the Deposit
Agreement, execute and deliver additional Receipts as in the case of a dividend
in Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
SECTION
4.9 Reports.
The
Depositary shall make available for inspection by Owners at its Corporate Trust
Office any reports and communications, including any proxy soliciting material,
received from the Issuer which are both (a) received by the Depositary as the
holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Issuer. The Depositary
shall also, upon written request, provide to the Owners copies of such reports
furnished by the Issuer pursuant to Section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Issuer shall be furnished in English.
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The
Issuer is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended and accordingly files certain information with
the Commission. These reports and documents can be inspected and
copied at the public reference facilities maintained by the Commission located
at 000 X Xxxxxx XX, Xxxxxxxxxx, X.X. 00000.
SECTION
4.10 Lists
of Owners.
Promptly
upon request by the Issuer, the Depositary shall, at the expense of the Issuer,
furnish to it a list, as of a recent date, of the names, addresses and holdings
of American Depositary Shares by all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION
4.11 Taxation;
Withholding.
The
Depositary will, and will instruct the Custodian to, forward to the Issuer or
its agents such information from its records as the Issuer may reasonably
request to enable the Issuer or its agents to file necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian or the
Issuer and its agents may, but shall not be obligated to, file such reports as
are necessary to reduce or eliminate applicable taxes on dividends and on other
distributions in respect of Deposited Securities under applicable tax treaties
or laws for the Owners and Beneficial Owners. Owners and Beneficial Owners of
American Depositary Shares may be required from time to time, and in a timely
manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Owners and Beneficial Owners shall indemnify the Depositary, the Issuer, the
Custodian and any of their respective directors, employees, agents and
affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
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The
Issuer shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Issuer and owing to such governmental
authority or agency. Upon any such withholding, the Issuer shall remit to the
Depositary information about such taxes and/or governmental charges withheld or
paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent
required by U.S. law, report to Owners: (i) any taxes withheld by it; (ii) any
taxes withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Issuer, subject
to information being provided to the Depositary by the Issuer. The Depositary
and the Custodian shall not be required to provide the Owners with any evidence
of the remittance by the Issuer (or its agents) of any taxes withheld, or of the
payment of taxes by the Issuer, except to the extent the evidence is provided by
the Issuer to the Depositary. Neither the Depositary nor the
Custodian shall be liable for the failure by any Owner or Beneficial Owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Owner's or Beneficial Owner's income tax liability.
In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
The
Depositary is under no obligation to provide the Owners and Beneficial Owners
with any information about the tax status of the Issuer. The Depositary shall
not incur any liability for any tax consequences that may be incurred by Owners
and Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the Issuer
(or any of its subsidiaries) being treated as a "Passive Foreign Investment
Company" (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
|
ARTICLE
5.
|
THE
DEPOSITARY, THE CUSTODIANS AND THE
ISSUER.
|
SECTION
5.1 Maintenance of Office and
Transfer Books by the Depositary.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
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The
Depositary shall keep books at its Corporate Trust Office for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Issuer and by the Owners, provided that such
inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of the Issuer or a
matter related to this Deposit Agreement or the Receipts.
The
Issuer shall have the right to inspect at all reasonable times the transfer and
registration records of the Depositary, take copies thereof and require the
Depositary, the Registrar and any co-transfer agents or co-registrars to supply
copies of such portions of such records as the Issuer may reasonably
request.
The
Depositary may close the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder, subject to consultation with the Issuer to the extent practicable
when such closure is outside the ordinary course of business, or at the
reasonable written request of the Issuer.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more stock exchanges in the United States, the Depositary shall act as
Registrar or appoint a Registrar or one or more co-registrars for registry of
such Receipts in accordance with any requirements of such exchange or
exchanges. The Depositary shall notify the Issuer of the appointment,
removal or substitution of any Registrar or co-registrar.
SECTION
5.2 Prevention or Delay in
Performance by the Depositary or the Issuer.
Neither
the Depositary nor the Issuer nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Articles of Association or the Deposited Securities, or on
account of possible criminal or civil penalties or restraint, or by reason of
any provision of any securities issued or distributed by the Issuer, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Issuer, or any of their respective directors, employees, agents or affiliates
shall be prevented, delayed or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of this Deposit Agreement or the Deposited Securities it is provided
shall be done or performed; nor shall the Depositary or the Issuer or any of
their respective directors, employees, agents or affiliates incur any liability
to any Owner or Beneficial Owner of any Receipt by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement or for any consequential or
punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
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The
Depositary, its controlling persons, its agents, any Custodian and the Issuer,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
SECTION
5.3 Obligations of the
Depositary, the Custodian and the Issuer.
The
Issuer and its agents assume no obligation and shall not be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner, except
that the Issuer agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
The
Depositary and its agents assume no obligation and shall not be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither
the Depositary nor the Issuer shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary.
In no
event shall the Depositary or any of its directors, officers, employees, agents
and/or affiliates, or any of them, be liable for any indirect, special, punitive
or consequential damages to the Issuer, Owners, Beneficial Owners or any other
person.
Neither
the Depositary nor the Issuer shall be liable for (i) any action or nonaction by
it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Owner or any other
person believed by it in good faith to be competent to give such advice or
information or (ii) the inability of an Owner or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Owners and Beneficial Owners of ADSs.
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The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without gross negligence or willful misconduct while it acted as
Depositary.
The
Depositary shall not be liable for any acts or omissions made by a predecessor
depositary whether in connection with an act or omission of the Depositary or in
connection with any matter arising wholly prior to the appointment of the
Depositary or after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability
arises the Depositary performed its obligations without negligence or wilful
misconduct while it acted as Depositary.
The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Depositary shall not incur any
liability for the failure or timeliness of any notice from the
Issuer.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
SECTION
5.4 Resignation and Removal of
the Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice of
its election so to do delivered to the Issuer, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The
Depositary may at any time be removed by the Issuer by 90 days prior written
notice of such removal, which shall become effective upon the later to occur of
(i) the 90th day
after delivery of the notice to the Depositary or (ii) the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
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In case
at any time the Depositary acting hereunder shall resign or be removed, the
Issuer shall use its best efforts that are reasonable under the circumstances to
appoint a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, The City of New York. Every
successor depositary shall execute and deliver to its predecessor and to the
Issuer an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Issuer shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly distribute notice of its appointment to the
Owners.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION
5.5 The
Custodians.
The
Custodian shall be subject at all times and in all respects to the directions of
the Depositary and shall be responsible solely to it. If any Custodian resigns
or is discharged from its duties hereunder and upon such resignation there shall
be no Custodian acting hereunder, the Depositary shall, promptly appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint a substitute or additional custodian or custodians which shall
thereafter be one of the Custodians hereunder. The Depositary shall
promptly provide the Issuer with notice of any resignation by the
Custodian. The Depositary will not, without the consent of the Issuer
which shall not be unreasonably withheld, appoint a Custodian that is not a
wholly-owned subsidiary of Citibank N.A., it being
understood that it shall be reasonable for the Issuer to withhold its consent
unless the level of protection afforded the Issuer in respect of the actions of
the prospective Custodian is at least the same as the protection afforded the
Issuer in respect of the actions of the Custodian at the date of execution of
this Agreement. The Depositary shall require such resigning or
discharged Custodian to deliver the Deposited Securities held by it, together
with all such records maintained by it as Custodian with respect to such
Deposited Securities as the Depositary may request, to the Custodian designated
by the Depositary. Upon demand of the Depositary any Custodian
shall deliver such of the Deposited Securities held by it as are requested of it
to any other Custodian or such substitute or additional custodian or
custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the
Depositary. Immediately upon any such change, the Depositary shall
give notice thereof in writing to the Issuer and Owners.
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Upon the
appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder; but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION
5.6 Notices
and Reports.
On or
before the first date on which the Issuer gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities, or
of any adjourned meeting of such holders, or of the taking of any action in
respect of any cash or other distributions or the offering of any rights, the
Issuer agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The
Issuer will arrange for the translation into English (if applicable) and
the prompt
transmittal by the Issuer to the Depositary and the Custodian of such notices
and any other reports and communications which are made generally available by
the Issuer to holders of its Shares. The Depositary will, at the
expense of the Issuer, make available a copy of any such notices, reports or
communications issued by the Issuer and delivered to the Depositary for
inspection by the Owners of the ADSs at the Depositary’s Corporate Trust Office,
at the office of the Custodian and at any other designated transfer office;
provided, that, the Depositary shall, to the extent practicable, mail such
notices, reports or communications to Owners at the expense of the Issuer if
requested by the Issuer.
SECTION
5.7 Distribution of Additional
Shares, Rights, etc.
The
Issuer agrees that in the event it or any of its affiliates proposes (1) any
issuance, sale or distribution of additional Shares, (2) an offering of rights
to subscribe for Shares or other Deposited Securities, (3) an issuance of
securities convertible into or exchangeable for Shares, (4) an issuance of
rights to subscribe for such securities (5) an elective dividend of cash or
Shares, (6) a redemption of Deposited Securities, (7) a meeting of holders of
Deposited Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger, subdivision, amalgamation or
consolidation or transfer of assets, or (8) any reclassification,
recapitalization, reorganization, merger, amalgamation, consolidation or sale of
assets which affects the Deposited Securities, (each a "Proposed Transaction")
the Issuer will furnish to the Depositary, as promptly as practicable, a written
opinion, unless waived by the Depositary, from (a) U.S. counsel for the Issuer,
which counsel shall be satisfactory to the Depositary, stating whether or not
application of the Proposed Transaction to Owners and Beneficial Owners requires
a Registration Statement under the Securities Act to be in effect or is exempt
from the registration requirements of the Securities Act and (b) Greek counsel
for the Issuer stating that (1) making the Proposed Transaction available to
Owners and Beneficial Owners does not violate the laws or regulations of Greece
and (2) all requisite regulatory consents and approvals have been obtained in
Greece. If in the opinion of such counsel a Registration Statement is
required, such counsel shall furnish to the Depositary a written opinion as to
whether or not there is a Registration Statement in effect which will cover such
Proposed Transaction.
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If, being
advised by counsel, the Issuer determines that a transaction is required to be
registered under the Securities Act, the Issuer will either (i) register
such transaction to the extent necessary, (ii) alter the terms of the
transaction to avoid the registration requirements of the Securities Act or
(iii) direct the Depositary to take specific reasonable and practical
measures, in each case as contemplated in this Deposit Agreement, to prevent
such transaction from violating the registration requirements of the Securities
Act.
The
Issuer agrees with the Depositary that neither the Issuer nor any company
controlled by, controlling or under common control with the Issuer will at any
time deposit any Shares, either originally issued or previously issued and
reacquired by the Issuer or any such affiliate, unless a Registration Statement
is in effect as to such Shares under the Securities Act or the Issuer furnishes
to the Depositary a written opinion from U.S. counsel for the Issuer, unless
waived by the Depositary, which counsel shall be reasonably satisfactory to the
Depositary, stating that the Shares proposed to be deposited are eligible for
deposit under the terms of this Deposit Agreement and applicable
law.
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Issuer to file any registration
statement under the Securities Act in respect of any proposed transaction or to
endeavor to have a registration statement declared effective.
SECTION
5.8 Indemnification.
The
Issuer agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
losses, liabilities, costs, charges and expenses
(including, but not limited to, taxes (other than income taxes owing by the
Depositary on amounts earned hereunder) and the reasonable fees and expenses of
counsel) that may arise out of any registration with the Commission of Receipts,
American Depositary Shares, Shares or other Deposited Securities or any offer,
issuance, sale, resale, transfer, deposit or withdrawal thereof or out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian
or their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, and except to the extent that such liability or expense arises out of
information relating to the Depositary or the Custodian, as applicable,
furnished in writing to the Issuer by the Depositary expressly for use in any
registration statement, proxy statement, prospectus or preliminary prospectus
relating to the Shares or misstatements of or omissions from such information,
if provided, or (ii) by the Issuer or any of its directors, employees,
agents and affiliates.
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The
indemnities contained in the preceding paragraph shall apply to any such
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (i) information relating to the Depositary or any Custodian (other than the
Issuer), as applicable, furnished in writing and not materially changed or
altered by the Issuer expressly for use in any of the foregoing documents, or,
(ii) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
The
Depositary agrees to indemnify the Issuer and hold it harmless from any
liability or expense which may arise out of acts performed or omitted by the
Depositary or its Custodian so long as the Custodian is a wholly-owned
subsidiary of the Depositary due to their negligence or bad faith.
Any
person seeking indemnification hereunder (an “indemnified person”) shall notify
the person from whom it is seeking indemnification (the “indemnifying person”)
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure to
make such notification shall not affect such indemnified person’s rights to seek
indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder without
the consent of the indemnifying person, which consent shall not be unreasonably
withheld.
SECTION
5.9 Charges
of Depositary.
The
Issuer agrees to pay the fees, reasonable expenses and out-of-pocket charges of
the Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Issuer from time to
time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months. The charges and
expenses of the Custodian are for the sole account of the
Depositary. The Depositary may reimburse the Issuer for certain
expenses incurred by the Issuer in respect of the ADR program established
pursuant to the Deposit Agreement, by making available a portion of the
Depositary fees charged in respect of the ADR program or otherwise, upon such
terms and conditions as the Issuer and the Depositary agree from time to
time.
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In
connection with any payment by the Issuer to the Depositary:
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(i)
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all
fees, taxes, duties, charges, costs and expenses which are payable by the
Issuer shall be paid or be procured to be paid by the Issuer (and any such
amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Issuer upon demand therefor);
and
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(ii)
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such
payment shall be subject to all necessary Greek exchange control and other
consents and approvals having been obtained. The Issuer undertakes to use
its reasonable endeavours to obtain all necessary approvals that are
required to be obtained by it in this
connection.
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All
payments by the Issuer to the Depositary under this Section 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto. In the event of the
Depositary’s resignation or removal pursuant to Section 5.4, any amounts, fees,
costs or expenses owed to the Depositary hereunder or in accordance with any
other agreements otherwise agreed in writing between the Issuer and the
Depositary from time to time shall be paid to the Depositary prior to such
resignation or removal
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Issuer or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes
(including applicable interest and penalties) and other governmental charges,
(2) such registration and delivery fees as may from time to time be in
effect for the registration of transfers and/or delivery of Deposited Securities
generally on any central securities depositary (including, but not limited to,
the CSD) or otherwise and applicable to transfers of Deposited Securities to or
from the name of the Depositary or its nominee or the Custodian or its nominee
on the making of deposits or withdrawals hereunder, (3) such cable, telex
and facsimile transmission expenses as are expressly provided in this Deposit
Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.5, (5) such fees and
expenses as are incurred by the Depositary in connection with compliance with
exchange control regulations and other regulatory requirements applicable to
Shares, Deposited Securities, ADSs and Receipts, (6) a fee of $5.00 or less per
100 American Depositary Shares (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender
of Receipts pursuant to Section 2.5 or 6.2, (7) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement, including, but not limited to Sections
4.1 through 4.4 hereof, (8) a fee for the distribution of securities
pursuant to Section 4.2, such fee being in an amount equal to the fee for
the execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 8 treating all such securities as if they were
Shares) but which securities are instead distributed by the Depositary to
Owners, (9) a fee of $.02 or less per American Depositary Share (or portion
thereof) for depositary services, which will accrue on the last day of each
calendar year and which will be payable as provided in clause (10) below; provided, however, that no fee
will be assessed under this clause (9) to the extent that a fee of $.02 was
charged pursuant to clause (7) above during that calendar year and (10) any
other fees, charges, costs or expenses that may be incurred by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares, other Deposited
Securities and/or American Depositary Shares (which charge shall be assessed
against Owners as of the date or dates set by the Depositary in accordance with
Section 4.6 and shall be payable at the sole discretion of the Depositary by
billing such Owners for such charge or by deducting such charge from one or more
cash dividends or other cash distributions).
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The
Depositary, subject to Section 2.9 hereof, may own and deal in any class of
securities of the Issuer and its affiliates and in Receipts.
Depositary
Fees payable upon (i) deposit of Shares against issuance of ADSs and
(ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC
or presented to the Depositary via DTC, the ADS issuance and cancellation fees
will be payable to the Depositary by the DTC participant(s) receiving the ADSs
from the Depositary or the DTC participant(s) surrendering the ADSs to the
Depositary for cancellation, as the case may be, on behalf of the Beneficial
Owner(s) and will be charged by the DTC participant(s) to the account(s) of the
applicable Beneficial Owner(s) in accordance with the procedures and practices
of the DTC participant(s) as in effect at the time. Depositary fees
in respect of distributions and the Depositary services fee are payable to the
Depositary by Owners as of the applicable record date established by the
Depositary. In the case of distributions of cash, the amount of the
applicable Depositary fees is deducted by the Depositary from the funds being
distributed. In the case of distributions other than cash and the
Depositary service fee, the Depositary will invoice the applicable Owners as of
the record date established by the Depositary. For ADSs held through
DTC, the Depositary fees for distributions other than cash and the Depositary
service fee are charged by the Depositary to the DTC participants in accordance
with the procedures and practices prescribed by DTC from time to time and the
DTC participants in turn charge the amount of such fees to the Beneficial Owners
for whom they hold ADSs.
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SECTION
5.10 Retention of Depositary
Documents.
The
Depositary agrees to maintain or cause its agents to maintain records of all
Receipts surrendered and Deposited Securities withdrawn under Section 2.5,
substitute Receipts delivered under Section 2.7, and of cancelled or destroyed
Receipts under Section 2.8, in keeping with procedures ordinarily followed by
stock transfer agents located in The City of New York or as required by the laws
or regulations governing the Depositary.
The
Depositary is authorized to destroy those documents, records, bills and other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Issuer requests
that such papers be retained for a longer period or turned over to the Issuer or
to a successor depositary.
SECTION
5.11 Exclusivity.
Subject
to Section 5.4, the Issuer agrees not to appoint any other depositary for
issuance of American Depositary Receipts so long as Citibank, N.A. is acting as
Depositary hereunder.
SECTION
5.12 List
of Restricted Securities Owners.
The Issuer
agrees to advise in writing each of the persons or entities who, to the
knowledge of the Issuer, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder. Notwithstanding the
foregoing, the Depositary and the Issuer agree that the Issuer shall have no
obligation to monitor the shareholder registry for purposes of identifying
persons or entities that hold Restricted Securities.
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ARTICLE
6.
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AMENDMENT
AND TERMINATION.
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SECTION
6.1 Amendment.
The form
of the Receipts and any provisions of this Deposit Agreement may at any time and
from time to time be amended or supplemented by agreement between the Issuer and
the Depositary without the consent of Owners and Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment or
supplement which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of thirty
days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of
the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require an amendment of or supplement to the Deposit
Agreement to ensure compliance therewith, the Issuer and the Depositary may
amend or supplement the Deposit Agreement and Receipts outstanding at any time
in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances shall, if
required to ensure compliance with applicable law, become effective before a
notice of such amendment or supplement is given to Owners or within any other
period of time as required for compliance with such laws, rules or
regulations.
SECTION
6.2 Termination.
The
Depositary shall at any time at the direction of the Issuer terminate this
Deposit Agreement by distributing notice of such termination to the Owners of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by distributing notice of such termination to the Issuer
and the Owners of all Receipts then outstanding, such termination to be
effective on a date specified in such notice not less than 30 days after the
date thereof, if at any time 60 days shall have expired after the Depositary
shall have delivered to the Issuer a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after
the date of termination, the Depositary may sell the Deposited Securities then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations to the Issuer under Section 5.8 hereof. Upon the
termination of this Deposit Agreement, the Issuer shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8 and 5.9 hereof.
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ARTICLE
7.
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MISCELLANEOUS.
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SECTION
7.1 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts shall constitute one
and the same instrument. Copies of this Deposit Agreement shall be
filed with the Depositary and the Custodians and shall be open to inspection at
the Corporate Trust Office of the Depositary and the office of the Custodian
designated by the Custodian by any Owner or Beneficial Owner of a Receipt during
business hours.
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SECTION
7.2 No
Third Party Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the parties hereto and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person.
SECTION
7.3 Severability.
In case
any one or more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Owners
and Beneficial Owners as Parties; Binding Effect.
The
Owners and Beneficial Owners of Receipts from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof. Each Owner and
Beneficial Owner agrees that, by accepting a Receipts, such Owner or Beneficial
Owner shall hold such Receipt subject to, and with the obligation of applicable
law, and the provisions hereof.
SECTION
7.5 Notices.
Any and
all notices to be given from the Depositary to the Issuer shall be deemed to
have been duly given if personally delivered or sent by mail or facsimile
transmission addressed to Coca-Cola HBC S.A., 0 Xxxxxxxxxxxxx Xxxxxx, 000 00
Xxxxxxxx, Xxxxxx, Xxxxxx (facsimile number x00-00 000 0000), Attention: General
Counsel, or such other address or facsimile number as the Issuer may notify the
Depositary of in writing from time to time.
Any and
all notices to be given from the Issuer to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
facsimile transmission addressed to Citibank, N.A., 000 Xxxxxxxxx Xx., Xxx Xxxx,
Xxx Xxxx, 00000, U.S.A., Attention: Depositary Receipts Department, or such
other address or facsimile number as the Depositary may notify the Issuer of in
writing from time to time.
With
respect to any notice given by the Issuer to the Depositary or by the Depositary
to the Issuer only, such notice shall be deemed to have been
received: (a) in the case of a notice given by hand, at the time of
day of actual delivery; (b) if sent by facsimile, with a confirmed receipt of
transmission of all pages from the receiving machine, on the day on which
transmitted if followed up by a posted confirmation notice thereof; and (c) if
posted, by 10:00 AM on the fifth business day following the day on which it was
mailed by first-class mail, postage prepaid, provided that a notice given in
accordance with the above but received on a day which is not a business day or
after normal business hours in the place of receipt shall be deemed to have been
received on the next business day.
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Any and
all notices to be given to any Owner shall be deemed to have been duly given if
(a) personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request, or (b) if an Owner shall have designated such
means of notification as an acceptable means of notification under the terms of
the Deposit Agreement, by means of electronic messaging addressed for delivery
to the e-mail address designated by the Owner for such
purpose. Notice to Owners shall be deemed to be notice to Beneficial
Owners for all purposes of the Deposit Agreement. Failure to notify
an Owner or any defect in the notification to an Owner shall not affect the
sufficiency of notification.
Delivery
of a notice sent to any Owner by mail or cable, telex or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Issuer may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
Delivery
of a notice by means of electronic messaging shall be deemed to be effective at
the time of the transmission by the sender (as shown on the sender’s records),
notwithstanding that the intended recipient retrieves the message at a later
date, fails to retrieve such message, or fails to receive such notice on account
of its failure to maintain the designated e-mail address, its failure to
designate a substitute e-mail address or for any other reason.
SECTION
7.6 Governing Law; Submission to
Jurisdiction.
This
Deposit Agreement and the Receipts shall be interpreted and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by the laws
of the State of New York without reference to the principles of choice of law
thereof. The Issuer, the Depositary and each Owner and Beneficial Owner agree
that the federal or state courts in the City of New York shall have jurisdiction
to hear and determine any suit, action or proceeding and to settle any dispute
between them that may arise out of or in connection with this Deposit Agreement
and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts. Furthermore, each Owner and
Beneficial Owner agrees that such New York courts shall have exclusive
jurisdiction on all matters brought by any of them against any other party
hereto and that no suit, action or proceeding may be commenced by any of them in
any other jurisdiction.
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The
Issuer irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The
Issuer and the Depositary irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited
Securities.
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN RECEIPTS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE ISSUER DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE RECEIPTS, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
Notwithstanding
anything contained in this Deposit Agreement, any Receipt or any present or
future provisions of the laws of the State of New York, the rights of holders of
Shares and of any other Deposited Securities and the obligations and duties of
the Issuer in respect of the holders of Shares and other Deposited Securities,
as such, shall be governed by the laws of Greece.
SECTION
7.7 Compliance
with U.S. Securities Laws.
Notwithstanding
anything in this Deposit Agreement to the contrary, the Issuer and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but not
limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities
Act.
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SECTION
7.8 Appointment
of Agent for Service of Process.
The
Issuer hereby (i) irrevocably designates and appoints CT Corporation, 000
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, in the State of New York (the “Agent”), as
the Issuer's authorized agent to receive and accept for and on its behalf, and
on behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Issuer in any federal or state court
(as described in the first or second paragraph of this Section 7.6) arising out
of or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement and (ii) irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents in
any suit, action or proceeding against the Issuer, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Issuer by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Issuer agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon. The
Issuer agrees to deliver, upon the execution and delivery of this Deposit
Agreement, a written acceptance by the Agent of its appointment as such
agent. The Issuer further agrees to take any and all action,
including the filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment in full force and effect
for so long as any American Depositary Shares or Receipts remain outstanding or
this Agreement remains in force. If for any reason the Agent shall
cease to be available to act as such, the Issuer agrees to designate a new agent
in New York on the terms and for the purposes of this Section 7.8 reasonably
satisfactory to the Depositary.
The
provisions of this Section 7.8 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.9 Survival.
The
provisions of Section 5.8, 5.9, 7.6 and 7.8 shall survive any termination of the
Deposit Agreement.
SECTION
7.10 Headings.
Headings
contained herein are included for convenience only and are not to be used in
construing or interpreting any provision hereof.
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IN
WITNESS WHEREOF, COCA-COLA HELLENIC BOTTLING COMPANY S.A. and CITIBANK, N.A.
have duly executed this agreement as of the day and year first set forth above
and all Owners shall become parties hereto upon acceptance by them and as of the
date of Receipts issued in accordance with the terms hereof.
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COCA-COLA
HELLENIC BOTTLING
COMPANY
S.A.
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By:
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| Name: | ||||
| Title: | ||||
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CITIBANK,
N.A., as Depositary
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By:
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| Name: | ||||
| Title: | ||||
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Exhibit
A to Deposit Agreement
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No.
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____________________________________
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share represents one (1) deposited
Shares)
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CITIBANK,
N.A.
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES OF
OF
COCA-COLA
HELLENIC BOTTLING COMPANY S.A.
(INCORPORATED
UNDER THE LAWS OF THE HELLENIC REPUBLIC)
CITIBANK,
N.A., as depositary (hereinafter called the "Depositary"), hereby certifies that
, or
registered assigns IS THE OWNER OF
AMERICAN
DEPOSITARY SHARES
representing
deposited ordinary shares (herein called "Shares") of Coca-Cola Hellenic
Bottling Company S.A, incorporated under the laws of The Hellenic Republic
(herein called the "Company"). At the date hereof, each American
Depositary Share represents one (1) Share which is either deposited or subject
to deposit under the deposit agreement at Citibank International
plc (herein called the "Custodian"). The Depositary’s Corporate
Trust Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
THE
DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000
XXXXXXXXX XXXXXX, XXX XXXX, X.X. 00000
ARTICLE
1. THE DEPOSIT
AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"), all
issued and to be issued upon the terms and conditions set forth in the amended
and restated deposit agreement, dated as of April 30, 2010, (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from time to time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and become bound by
all the terms and conditions thereof. The Deposit Agreement sets
forth the rights of Owners and Beneficial Owners of the Receipts and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby made.
Capitalized terms not defined herein shall have the meanings set forth in the
Deposit Agreement.
ARTICLE
2. SURRENDER OF RECEIPTS AND
WITHDRAWAL OF SHARES.
Upon
surrender at the Corporate Trust Office of the Depositary of this Receipt for
the purpose of withdrawal of the Deposited Securities, and upon payment of the
fee of the Depositary for the surrender of Receipts as provided in Section 5.9
of the Deposit Agreement and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities provided in this Receipt, and subject to the terms and conditions of
the Deposit Agreement or applicable law or regulation, the Owner hereof is
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) Shares to, or upon the written order of, the
person(s) designated in the order delivered to the Depositary for such purpose
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipts to such Owner or as ordered by him. The
Depositary shall not accept a Receipt for surrender to the extent it evidences
American Depositary Shares representing a fraction of a Share. To
that extent, the Depositary shall, at its discretion, either (i) execute and
deliver a Receipt evidencing American Depositary Shares representing that
fraction, or (ii) sell or cause to be sold the fractional Share and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the Receipt. Such delivery will be made at the option of the Owner hereof,
either at the office of the Custodian or at the Corporate Trust Office of the
Depositary, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the
Depositary shall be at the risk and expense of the Owner hereof. Notwithstanding
any other provision of the Deposit Agreement or this Receipt, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or, if applicable, the Company or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any laws
or governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) any other circumstances specifically contemplated
by Section I.A(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
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ARTICLE
3. TRANSFERS, SPLIT-UPS, AND
COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary at its
Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, upon surrender of this Receipt properly endorsed for transfer or
accompanied by proper instruments of transfer and funds sufficient to pay any
applicable transfer taxes and the expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such
purpose. This Receipt may be split into other such Receipts, or may
be combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any laws or governmental regulations relating to the execution and delivery of
Receipts or American Depositary Shares or to the withdrawal or delivery of
Deposited Securities and any regulations the Depositary may establish consistent
with the provisions of the Deposit Agreement or this Receipt.
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The
delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or this Receipt, or
for any other reason, subject to Article (22) hereof. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares.
The
Depositary will comply with written instructions of the Company not to accept
for deposit under the Deposit Agreement any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company’s compliance
with the securities laws of the United States, Greece or any other
jurisdiction.
ARTICLE
4. LIABILITY OF OWNER FOR
TAXES.
If any
tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any Receipt or any Deposited Securities represented
by any American Depositary Shares evidenced by such Receipt, such tax or other
governmental charge shall be payable by the Owner and Beneficial Owners of such
Receipt to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment in
full is made, and the Depositary may withhold any dividends or other
distributions, or may sell for the account of the Owner and
Beneficial Owners hereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner and Beneficial Owners of
such Receipt shall remain liable for any deficiency. Every Owner and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and each
of their respective agents, officers, directors, employees and affiliates for,
and to hold each of them harmless from, any claims with respect to taxes
(including applicable interest and penalties thereon) arising from any tax
benefit obtained for such Owner and/or Beneficial Owner. The
obligations of Owners and Beneficial Owners of Receipts under this Article 4 and
Section 3.2 of the Deposit Agreement shall survive any transfer of Receipts, any
surrender of Receipts and withdrawal of Deposited Securities, or the termination
of the Deposit Agreement.
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ARTICLE
5. WARRANTIES OF
DEPOSITORS.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares are duly authorized, validly issued,
fully paid, nonassessable and legally obtained by such person, (ii) all
pre-emptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do and (iv) the Shares presented for deposit are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim,
and are not, and American Depositary Shares representing those Shares would not
be, Restricted Securities and the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the delivery or
surrender of Receipt(s) evidencing American Depositary Shares representing such
Shares and the transfer of Receipts evidencing such American Depositary
Shares. If any such representations or warranties are false in any
way, the Company and the Depositary shall be authorized, at the cost and expense
of the person depositing Shares, to take any and all actions necessary to
correct the consequences thereof.
ARTICLE
6. FILING PROOFS, CERTIFICATES,
AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any Owner or Beneficial Owners of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary. The
Depositary may withhold the delivery or registration of transfer of any Receipt
or the distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made or such other documentation or information
provided, in each case to the Depositary’s satisfaction. The Depositary shall
provide the Company, as promptly as practicable, at the Company’s reasonable
written request and at the Company’s expense, copies of (i) any such proofs
of citizenship or residence, taxpayer status, or exchange control approval which
it receives from Owners and Beneficial Owners, and (ii) any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Owner or any person presenting
Shares for deposit or ADSs for cancellation and withdrawal, unless such
disclosure is prohibited by law. Each Owner and Beneficial Owner
agrees to provide any information requested by the Company or the Depositary
pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Owners or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Owners or Beneficial Owners.
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ARTICLE 7.
CHARGES OF
DEPOSITARY.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of
the Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Company from time to
time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the
Depositary. The Depositary may reimburse the Issuer for certain
expenses incurred by the Issuer in respect of the ADR program established
pursuant to the Deposit Agreement, by making available a portion of the
Depositary fees charged in respect of the ADR program or otherwise, upon such
terms and conditions as the Issuer and the Depositary agree from time to
time.
In
connection with any payment by the Company to the Depositary:
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(iii)
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all
fees, taxes, duties, charges, costs and expenses which are payable by the
Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company upon demand therefor);
and
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(iv)
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such
payment shall be subject to all necessary Greek exchange control and other
consents and approvals having been obtained. The Company undertakes to use
its reasonable endeavours to obtain all necessary approvals that are
required to be obtained by it in this
connection.
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All
payments by the Company to the Depositary under Section 5.9 of the
Deposit Agreement shall be paid without set-off or counterclaim, and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes, levies, imports, duties, fees, assessments or other charges of
whatever nature, imposed by law, rule, regulation, court, tribunal or by any
department, agency or other political subdivision or taxing authority thereof or
therein, and all interest, penalties or similar liabilities with respect
thereto. In the event of the Depositary’s resignation or removal pursuant to
Section 5.4 of the Deposit Agreement, any amounts, fees, costs or expenses owed
to the Depositary or in accordance with any other agreements otherwise agreed in
writing between the Company and the Depositary from time to time shall be paid
to the Depositary prior to such resignation or removal
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The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3)
of the Deposit Agreement, or by Owners, as applicable: (1) taxes
(including applicable interest and penalties) and other governmental charges,
(2) such registration and delivery fees as may from time to time be in
effect for the registration of transfers and/or delivery of Deposited Securities
generally on any central securities depositary (including, but not limited to,
the CSD) or otherwise and applicable to transfers of Deposited Securities to or
from the name of the Depositary or its nominee or the Custodian or its nominee
on the making of deposits or withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile transmission expenses as are expressly
provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to
Section 4.5 of the Deposit Agreement, (5) such fees and expenses as are
incurred by the Depositary in connection with compliance with exchange control
regulations and other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and Receipts, (6) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.5 or 6.2 of the Deposit
Agreement, (7) a fee of $.02 or less per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, including, but not limited to Sections 4.1 through 4.4 of the Deposit
Agreement, (8) a fee for the distribution of securities pursuant to
Section 4.2 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 8 treating all such securities as
if they were Shares) but which securities are instead distributed by the
Depositary to Owners, (9) a fee of $.02 or less per American Depositary Share
(or portion thereof) for depositary services, which will accrue on the last day
of each calendar year and which will be payable as provided in clause (10)
below; provided, however, that no fee
will be assessed under this clause (9) to the extent that a fee of $.02 was
charged pursuant to clause (7) above during that calendar year and (10) any
other fees, charges, costs or expenses that may be incurred by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares, other Deposited
Securities and/or American Depositary Shares (which charge shall be assessed
against Owners as of the date or dates set by the Depositary in accordance with
Section 4.6 of the Deposit Agreement and shall be payable at the sole discretion
of the Depositary by billing such Owners for such charge or by deducting such
charge from one or more cash dividends or other cash
distributions).
The
Depositary, subject to Section 2.9 of the Deposit Agreement and this
Article 7, may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
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Depositary
Fees payable upon (i) deposit of Shares against issuance of ADSs and
(ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC
or presented to the Depositary via DTC, the ADS issuance and cancellation fees
will be payable to the Depositary by the DTC participant(s) receiving the ADSs
from the Depositary or the DTC participant(s) surrendering the ADSs to the
Depositary for cancellation, as the case may be, on behalf of the Beneficial
Owner(s) and will be charged by the DTC participant(s) to the account(s) of the
applicable Beneficial Owner(s) in accordance with the procedures and practices
of the DTC participant(s) as in effect at the time. Depositary fees
in respect of distributions and the Depositary services fee are payable to the
Depositary by Owners as of the applicable record date established by the
Depositary. In the case of distributions of cash, the amount of the
applicable Depositary fees is deducted by the Depositary from the funds being
distributed. In the case of distributions other than cash and the
Depositary service fee, the Depositary will invoice the applicable Owners as of
the record date established by the Depositary. For ADSs held through
DTC, the Depositary fees for distributions other than cash and the Depositary
service fee are charged by the Depositary to the DTC participants in accordance
with the procedures and practices prescribed by DTC from time to time and the
DTC participants in turn charge the amount of such fees to the Beneficial Owners
for whom they hold ADSs.
ARTICLE 8.PRE-RELEASE OF
RECEIPTS.
Subject
to the further terms and provisions of this Article 8 and Section 2.9 of the
Deposit Agreement, the Depositary, its affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Issuer and its
affiliates and in ADSs. In its capacity as Depositary, the Depositary
shall not lend Shares or ADSs; provided, however, that the Depositary may (i)
issue ADSs prior to the receipt of Shares pursuant to Section 2.2 of the Deposit
Agreement and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities pursuant to Section 2.5 of the Deposit Agreement, including
ADSs which were issued under (i) above but for which Shares may not have been
received (each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the “Applicant”) to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
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The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case-by-case basis
as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the
earnings thereon, shall be held for the benefit of the Owners (other than the
Applicant).
ARTICLE
9. TITLE TO
RECEIPTS.
It is a
condition of this Receipt and every successive holder and Owner of this Receipt
by accepting or holding the same consents and agrees, that title to this Receipt
when properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of certificated
security in the case of receipts that are certificated; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the person
in whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes and the Depositary shall
have no obligation and shall not be subject to any liability under the Deposit
Agreement to any holder of a Receipt unless such holder is the Owner
thereof.
ARTICLE
10. VALIDITY OF
RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
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ARTICLE 11.
REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended and accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the
"Commission").
These
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx XX, Xxxxxxxxxx, X.X.
00000.
The
Depositary will make available for inspection by Owners of Receipts at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company; provided,
that, the Depositary shall, to the extent practicable, mail such notices,
reports or communications to Owners at the expense of the Issuer if requested by
the Issuer.
Any such
reports and communications, including any such proxy soliciting material,
furnished to the Depositary by the Company shall be furnished in
English.
The
Depositary shall keep books at its Corporate Trust Office for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Company and the Owners of Receipts, provided that
such inspection shall not be for the purpose of communicating with Owners of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the
Receipts.
ARTICLE 12.
DIVIDENDS AND
DISTRIBUTIONS.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, if at the time of receipt thereof
any amounts received in a foreign currency can in the judgment of the Depositary
be converted on a reasonable basis into United States dollars transferable to
the United States, and subject to the Deposit Agreement, convert, as promptly as
practicable, such dividend or distribution into Dollars and shall distribute, as
promptly as practicable, the amount thus received (net of the fees and expenses
of the Depositary as provided in the Deposit Agreement, if applicable) to the
Owners of Receipts entitled thereto in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, provided, however, that in the event that the Company or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owners of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced
accordingly.
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Subject
to the provisions of Section 4.11 and Section 5.9 of the Deposit Agreement,
whenever the Company determines to distribute to the holders of Deposited
Securities property other than cash, shares or rights, the Company will give
timely notice to the Depositary. Upon receipt of a distribution
covered by the preceding sentence, the Depositary shall, after consultation with
the Company, cause the securities or property received by it to be distributed
to the Owners entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem lawful and reasonably practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason (including, but not limited to, any
requirement that the Company or the Depositary withhold an amount on account of
taxes or other governmental charges or that such securities must be registered
under the Securities Act in order to be distributed to Owners or Beneficial
Owners) the Depositary reasonably deems such distribution not to be lawful and
reasonably practicable, the Depositary may, after consultation with the Company,
adopt such method as it may deem reasonably practicable and lawful for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Owners of Receipts entitled thereto as in
the case of a distribution received in cash. If the Depositary is unable to sell
such property, after consultation with the Company and upon the Company's
instructions the Depositary shall either: (i) return the property to the Company
at the Company's expense (to the extent reasonably practicable), or, (ii) if 20
business days have elapsed from the time the Depositary requests an instruction
from the Company, and no instruction from the Company to return the property to
it is received, the Company shall be deemed to have instructed the Depositary to
dispose of such property in any way it deems reasonably practicable under the
circumstances for nominal or no consideration, and in either of (i) or (ii)
above, Owners and Beneficial Owners shall have no rights thereto or arising
therefrom. No distribution to Owners pursuant to Section 4.2 of the
Deposit Agreement shall be unreasonably delayed by any action of the Depositary
or any of its agents.
The
Depositary may withhold any distribution of securities under Section 4.2 of
the Deposit Agreement unless it has received satisfactory assurances, including
satisfactory documentation within the terms of Section 5.7 of the Deposit
Agreement.
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If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may either (i) after consultation with
the Company, and shall if the Company shall so request, distribute as promptly
as practicable to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
of the Deposit Agreement, the payment of fees of the Depositary as provided in
Section 5.9 of the Deposit Agreement, and any applicable U.S. securities laws or
(ii) if additional American Depositary Shares are not so distributed, each
American Depositary Share issued and outstanding after the record date fixed by
the Depositary shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges). In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions set forth in
the Deposit Agreement. No distribution to Owners pursuant to Section
4.3 of the Deposit Agreement shall be unreasonably delayed by any action of the
Depositary or any of its agents.
In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
The
Depositary is under no obligation to provide the Owners and Beneficial Owners
with any information about the tax status of the Company. The Depositary shall
not incur any liability for any tax consequences that may be incurred by Owners
and Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the
Company (or any of its subsidiaries) being treated as a "Passive Foreign
Investment Company" (in each case as defined in the U.S. Internal Revenue Code
and the regulations issued thereunder) or otherwise.
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ARTICLE
13. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a practicable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, as
promptly as practicable, by sale or in any other manner that it may determine in
accordance with applicable law, such foreign currency into Dollars, and such
Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9 of the Deposit Agreement.
Owners
and Beneficial Owners understand that in converting foreign currency, amounts
received on conversion are calculated at a rate which exceeds four decimal
places (the number of decimal places used by the Depositary to report
distribution rates). The excess nominal amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder or under the Deposit Agreement and shall
not be subject to escheatment.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may reasonably deem desirable or
necessary.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not, pursuant to applicable law,
convertible on a practicable basis in whole or in part into Dollars transferable
to the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the reasonable
opinion of the Depositary is not obtainable, or if any such approval or license
is not obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
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If any
such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
ARTICLE
14. RIGHTS.
In the
event that the Company shall offer or distribute or cause to be offered or
distributed to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any other nature, the Company will give
notice thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Owners. Upon receipt by the Depositary of a notice that the
Company wishes such rights to be made available to the Owners and receipt by the
Depositary of satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, the Company and the Depositary will consult to the extent
practicable to determine the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms of such
rights offering or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse.
If at the
time of the offering of any rights the Depositary determines in its discretion
that it is lawful and reasonably practicable to make such rights available to
all Owners or to certain Owners but not to other Owners, the Depositary may,
after consultation with the Company and subject to the approval of the Company,
which approval shall not be unreasonably withheld, and to the Depositary’s
receipt of satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, distribute to any Owner to whom it determines the
distribution to be lawful and reasonably practicable, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate. In circumstances in
which rights would otherwise not be distributed, if an Owner of Receipts
requests the distribution of warrants or other instruments in order to exercise
the rights allocable to the American Depositary Shares of such Owner under the
Deposit Agreement, the Depositary will as promptly as practicable make such
rights available for delivery to such Owner upon written notice from the Company
to the Depositary that (a) the Company has elected in its sole discretion to
permit such rights to be exercised and warrants or other instruments to be
distributed and (b) such Owner has executed such documents as the Company has
determined in consultation with the Depositary are reasonably required under
applicable law.
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If the
Depositary has distributed warrants or other instruments for rights to all or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares. Thereafter, the Company shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares
so purchased to be deposited pursuant to Section 2.2 of the Deposit Agreement,
and shall, pursuant to Section 2.3 of the Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the
second paragraph of this Article, such Receipts shall be legended in accordance
with applicable U.S. laws, and shall be subject to the appropriate restrictions
on sale, deposit, cancellation, and transfer under such laws.
If the
Depositary determines in its discretion that it is not lawful and reasonably
practicable to make such rights available to all or certain Owners, but that it
is lawful and reasonably practicable to sell those rights, after consultation
with the Company and approval by the Company (such approval not to be
unreasonably withheld), it shall use reasonable efforts to sell the rights,
warrants or other instruments, in a riskless principal capacity or otherwise, by
public or private sale and upon such terms as it may reasonably deem proper, in
proportion to the number of American Depositary Shares held by the Owners to
whom it has determined it may not lawfully or reasonably practicably make such
rights available, and allocate the net proceeds of such sales (net of the fees
and expenses of the Depositary as provided in Article 7 hereof and Section 5.9
of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Any
such cash proceeds shall be distributed in accordance with Section 4.1 of the
Deposit Agreement.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act, or any other applicable law, with respect to a distribution
to Owners or are registered under the provisions of such Act or other applicable
law. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act or other applicable law, the Depositary shall not
effect such distribution unless it has received such legal opinions as are
required under Section 5.7 of the Deposit Agreement, unless waived by the
Depositary.
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The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or reasonably practicable to make such rights available to Owners in
general or any Owner in particular, (ii) any foreign exchange exposure or loss
incurred in connection with any sale or exercise of such rights or (iii) the
content of any materials forwarded to the Owners on behalf of and at the request
of the Company in connection with the rights distribution.
There can
be no assurance that Owners generally, or any Owner in particular, will be given
the opportunity to receive or exercise rights on the same terms and conditions
as the holders of Shares or be able to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
ARTICLE
15. RECORD
DATES.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting, solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall fix a record date, which date shall
be the same as the corresponding record date set by the Company with respect to
Shares, if any or as soon thereafter as reasonably practicable, (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consents, to receive such notice or solicitation or to
otherwise take action or (b) on or after which each American Depositary Share
will represent the changed number of Shares.
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ARTICLE
16. VOTING OF DEPOSITED
SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company in a timely
manner and at the Company’s expense and provided no U.S. legal
prohibitions exist, the Depositary shall, as soon as practicable thereafter
distribute, by mail to the extent practicable if requested by the Issuer, to the
Owners a notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company (or, if requested
by the Company, a summary of such information provided by the Company), (b) a
statement that the Owners of American Depositary Shares as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Greek law and of the Articles of Association, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares, and (c) a statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a designated member or members of the Board of Directors
of the Company and (d) a statement that by instructing the Depositary as to the
exercise of voting rights with respect to the Deposited Securities such Owner
will be deemed (i) to authorize the Depositary to cause the number of Deposited
Securities evidenced by the number of American Depositary Shares held by such
Owner to be blocked for transfer, or to be registered on behalf of such Owner in
a temporary voting account ten (10) days prior to the date on which such vote is
to occur and immediately after such vote to register such Deposited Securities
in the name of the Depositary or the Custodian or their respective nominees, and
(ii) to authorize the Company and the Depositary to make such other arrangements
as they may deem necessary or advisable consistent with Greek law, the Articles
of Association and the terms of the Deposited Securities to permit the
Depositary to carry out such instructions, and (iii) to agree not to transfer,
surrender or otherwise dispose of such Owner's American Depositary Shares
representing such Deposited Securities until after the date such vote is to
occur; provided that this item (d) shall no longer apply in the event Greek law
changes to require alternative procedures. Upon the written request
of an Owner of a Receipt on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable, to vote or cause to be voted the amount of Deposited
Securities represented by such Receipt in accordance with the instructions set
forth in such request and will notify the Company in advance of its intentions
to so vote or cause to be voted such Deposited Securities as required to
preserve such voting rights. Neither the Depositary nor the Custodian
shall, under any circumstances exercise any discretion as to voting, and neither
the Depositary nor the Custodian shall vote or attempt to exercise the right to
vote, or in any way make use of for purposes of establishing a quorum or
otherwise, the Shares or other Deposited Securities, other than pursuant to and
in accordance with such instructions or deemed instructions. If
voting instructions are sought from Owners and no instructions are received by
the Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a designated member or members of the Board of Directors
of the Company with respect to such Deposited Securities and the Depositary
shall give a discretionary proxy to a designated member or members of the Board
of Directors of the Company to vote such Deposited Securities, provided, that no
such instruction shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as reasonably practicable in writing) that (x) the
Company does not wish such proxy given, (y) substantial opposition exists or (z)
such matter materially and adversely affects the rights of holders of
Shares, provided
further, however, that no such deemed discretion shall be provided with
respect to any meeting unless and until the Depositary has received an opinion
of the Company's in-house legal counsel, addressed to the Depositary and in form
and substance acceptable to the Depositary, at the Company's sole expense, to
the effect that, (i) the granting of such discretionary proxy does not subject
the Depositary to any reporting obligations in Greece, (ii) the granting of such
proxy will not result in a violation of Greek law, rule, regulation or permit,
(iii) the voting arrangement and deemed instruction as contemplated herein will
be given effect under Greek law, and (iv) the granting of such discretionary
proxy will not result in the Shares represented by the ADSs being considered
assets of the Depositary under Greek law.
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Notwithstanding
anything contained in the Deposit Agreement or any Receipt the Depositary may,
to the extent not prohibited by law or regulations, or by the requirements of
the stock exchange on which the ADSs are listed, and subject to approval by the
Company, in lieu of distribution of the materials provided to the Depositary in
connection with any meeting of, or solicitation of consents or proxies from,
holders of Deposited Securities, distribute to the Owners a notice that provides
Owners with, or otherwise publicize to Owners instructions on how to retrieve
such materials or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
There can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraphs sufficiently prior to the
Instruction Date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the provisions set forth in the preceding
paragraph.
ARTICLE 17.
CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 4.3 of the Deposit Agreement do
not apply, upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall, to the extent permitted by law, be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall, subject to the provisions of the Deposit Agreement and
applicable law, thenceforth represent, in addition to the existing
Deposited Securities, if any, the new Deposited Securities so received in
exchange or conversion. Alternatively, in any such case the
Depositary may, and shall if the Company shall so request, subject to the terms
of the Deposit Agreement, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
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ARTICLE
18. LIABILITY OF THE COMPANY AND
DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Articles of Association or the Deposited Securities, or on
account of possible criminal or civil penalties or restrain, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company, or any of their respective directors, employees, agents or affiliates
shall be prevented, delayed or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of the Deposit Agreement or the Deposited Securities it is provided
shall be done or performed; nor shall the Depositary or the Company or any of
their respective directors, employees, agents or affiliates incur any liability
to any Owner or Beneficial Owner of any Receipt by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement or for any consequential or
punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
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Neither
the Company nor the Depositary nor their respective agents assumes any
obligation or shall be subject to any liability under the Deposit Agreement to
Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the
Depositary. In no event shall the Depositary or any of its directors,
officers, employees, agents and/or affiliates, or any of them, be liable for any
indirect, special, punitive or consequential damages to the Company, Owners,
Beneficial Owners or any other person. Neither the Depositary nor the
Company shall be liable for (i) any action or nonaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner or holder of a Receipt, or any other
person believed by it in good faith to be competent to give such advice or
information or (ii) the inability of an Owner o Beneficial Owner to benefit from
any distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Owners and Beneficial Owners of
ADSs. The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without gross negligence or willful misconduct while it acted as
Depositary. The Depositary shall not be liable for any acts or
omissions made by a predecessor depositary whether in connection with an act or
omission of the Depositary or in connection with any matter arising wholly prior
to the appointment of the Depositary or after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without negligence or wilful misconduct while it acted as
Depositary.
The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Depositary shall not incur
any liability for the failure or timeliness of any notice from the
Company.
The
Company agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
losses, liabilities, costs, charges and expenses
(including, but not limited to, taxes (other than income taxes owing by the
Depositary on amounts earned hereunder) and the reasonable fees and expenses of
counsel) that may arise out of any registration with the Commission of Receipts,
American Depositary Shares, Shares or other Deposited Securities or any offer,
issuance, sale, resale, transfer, deposit or withdrawal thereof or out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian
or their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, and except to the extent that such liability or expense arises out of
information relating to the Depositary or the Custodian, as applicable,
furnished in writing to the Company by the Depositary expressly for use in any
registration statement, proxy statement, prospectus or preliminary prospectus
relating to the Shares or misstatements of or omissions from such information,
if provided, or (ii) by the Company or any of its directors, employees,
agents and affiliates.
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No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
BY
HOLDING A RECEIPT, AMERICAN DEPOSITARY SHARES OR INTERESTS THEREIN AND/OR BY
BEING AN OWNER AND/OR BENEFICIAL OWNER, EACH PARTY TO THE DEPOSIT AGREEMENT
(INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND BENEFICIAL OWNER AND/OR
HOLDER OF INTERESTS IN RECEIPTS) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE ADSs OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF (WHETHER BASED
ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
ARTICLE
19. RESIGNATION AND REMOVAL OF
THE DEPOSITARY.
The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company
by 90 days prior written notice of such removal, which shall become effective
upon the later to occur of the (i) 90th day
after delivery of the notice to the Depositary or (ii) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do so,
it may appoint, upon written notice to the Company 20 days before such
appointment shall take effect, a substitute or additional custodian or
custodians.
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ARTICLE
20. AMENDMENT.
The form
of the Receipts and any provisions of the Deposit Agreement may at any time and
from time to time be amended or supplemented by agreement between the Company
and the Depositary without the consent of Owners and Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment or
supplement which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair
the right of the Owner of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law.
Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require an amendment of or supplement to the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and Receipts outstanding at any time
in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances shall, if
required to ensure compliance with applicable law, become effective before a
notice of such amendment or supplement is given to Owners or within any other
period of time as required for compliance with such laws, rules or
regulations.
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ARTICLE
21. TERMINATION OF DEPOSIT
AGREEMENT.
The
Depositary shall at any time at the direction of the Company terminate the
Deposit Agreement by distributing notice of such termination to the Owners of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate
the Deposit Agreement by distributing notice of such termination to the Company
and the Owners of all Receipts then outstanding, such termination to be
effective on a date specified in such notice not less than 30 days after the
date thereof, if at any time 60 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.5 of the Deposit Agreement and (c) payment of any applicable taxes
or governmental charges, be entitled to delivery, to him or upon his order, of
the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights and other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, the fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental
charges). At any time after the date of termination, the Depositary
may sell the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it thereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges) and except for its obligations to the Company under
Section 5.8 of the Deposit Agreement. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary under
Sections 5.8 and 5.9 of the Deposit Agreement.
ARTICLE
22. COMPLIANCE WITH U.S.
SECURITIES LAWS.
Notwithstanding
anything in the Deposit Agreement or this Receipt to the contrary, the Company
and the Depositary each agrees that it will not exercise any rights it has under
the Deposit Agreement to permit the withdrawal or delivery of Deposited
Securities in a manner which would violate the U.S. securities laws, including,
but not limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities
Act.
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ARTICLE
23. SUBMISSION TO JURISDICTION;
APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
The
Company hereby (i) irrevocably designates and appoints CT Corporation, 000
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, in the State of New York, (the “Agent”) as
the Company's authorized agent to receive and accept for and on its behalf, and
on behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
(as described in Section 7.6 of the Deposit Agreement) arising out of or
relating to the Shares or Deposited Securities, the American Depositary Shares,
the Receipts or the Deposit Agreement and (ii) irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents in
any suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5 of
the Deposit Agreement. The Company agrees that the failure of the Agent to give
any notice of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or proceeding
based thereon. The Company agrees to deliver, upon the execution and delivery of
the Deposit Agreement, a written acceptance by the Agent of its appointment as
such agent. The Company further agrees to take any and all action,
including the filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment in full force and effect
for so long as any American Depositary Shares or Receipts remain outstanding or
the Deposit Agreement remains in force. If for any reason the Agent
shall cease to be available to act as such, the Company agrees to designate a
new agent in New York on the terms and for the purposes of this Article 23 and
Section 7.8 of the Deposit Agreement reasonably satisfactory to the
Depositary.
The
provisions of this Article 23 and Section 7.8 of the Deposit Agreement shall
survive any termination of the Deposit Agreement, in whole or in
part.
ARTICLE
24. COMPLIANCE WITH INFORMATION REQUESTS.
Notwithstanding
any other provision of the Deposit Agreement, each Owner and Beneficial Owner
agrees to (a) comply with requests from the Company pursuant to Greek or other
applicable law, the rules and requirements of CSD or any other electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, and
any stock exchange on which the Shares, Receipts or American Depositary Shares
are, or will be, registered, traded or listed or the Articles of Association,
which are made to obtain information, inter alia, as to the capacity in which
such Owner or Beneficial Owner owns American Depositary Shares (and Shares as
the case may be) and regarding the identity of any other person(s) interested in
such American Depositary Shares (and Shares, as the case may be) and the nature
of such interest and various other matters, and (b) be bound by and subject to
applicable provisions of the laws of Greece, the Articles of Association of the
Company and the requirements of any stock exchanges upon which the ADSs,
Receipts or Shares are or will be registered, traded or listed, or pursuant to
any requirements of CSD or any other electronic book-entry system by which the
ADSs, Receipts or Shares may be transferred, to the same extent as if such Owner
and Beneficial Owner held Shares directly, in each case whether or not they are
Owners or Beneficial Owners at the time of such request. The
Depositary agrees to use its reasonable efforts to forward, upon the written
request of the Company and at the expense of the Company, any such written
request from the Company to the Owners and to forward, as promptly as
practicable, to the Company any such responses to such requests received by the
Depositary. If the Company requests information from the Depositary,
the Custodian or the nominee of either, as the registered owner of the Shares,
the obligations of the Depositary, Custodian or such nominee, as the case may
be, shall be limited to disclosing to the Company the information contained in
the register.
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