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Page 2 of 4
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DEUTSCHE TELEKOM AG
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By: | /s/ Guillaume Maisondieu | |
Name: | Guillaume Maisondieu | |
Title:
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Senior Vice President
(Chief Accounting Officer)
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Page 3 of 4
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Exhibit 1
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Letter Agreement between Marfin Investment Group and Deutsche Telekom AG, dated March 15, 2008
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*
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Exhibit 2
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Letter Agreement between Marfin Investment Group and Deutsche Telekom AG, dated April 30, 2008, amending their Letter Agreement, dated March 15, 2008
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*
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Exhibit 3
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Share Purchase Agreement between the Hellenic Republic and Deutsche Telekom AG, dated May 14, 2008
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**
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Exhibit 4
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Shareholders’ Agreement between the Hellenic Republic and Deutsche Telekom AG, dated May 14, 2008
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**
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Exhibit 5
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Share Purchase Agreement between the Hellenic Republic and Deutsche Tekeom AG, dated July 29, 2009
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***
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Exhibit 6
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Share Purchase Agreement between the Hellenic Republic and Deutsche Tekeom AG, dated July 7, 2011
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* | Previously filed as an Exhibit to the Schedule 13 D on May 23, 2008. |
** | Previously filed as an Exhibit to Amendment No. 1 to the Schedule 13D on June 20, 2008. |
*** | Previously filed as an Exhibit to Amendment No. 8 to the Schedule 13D on August 13, 2009. |
SHARE PURCHASE
AGREEMENT
BETWEEN
THE HELLENIC REPUBLIC
AND
DEUTSCHE TELEKOM AG
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Article 1
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4
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Definitions and Interpretation
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4
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Article 2
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7
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Sale and Purchase of the Sale Shares
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7
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Article 3
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7
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Purchase Price - Payment Terms
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7
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Article 4
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7
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Completion
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7
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Article 5
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8
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Payment and Delivery
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8
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Article 6
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8
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Representations
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8
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Article 7
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9
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Covenants and Undertakings
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9
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Article 8
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10
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Default Interest
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10
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Article 9
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10
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Confidentiality
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10
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Article 10
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11
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Announcements
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11
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Article 11
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12
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Notices - Service of Process
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12
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Article 12
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12
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Amendment, Variation and Waiver
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12
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Article 13
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13
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Entire Agreement
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13
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Article 14
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13
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Language
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13
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Article 15
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13
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Assignment
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13
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Article 16
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13
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Miscellaneous
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13
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Article 17
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13
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Arbitration
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13
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Article 18
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14
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Applicable Law
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14
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1.
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THE HELLENIC REPUBLIC (the "HR" or the "Seller") lawfully represented for the purpose of this Agreement by the Minister of Finance, pursuant to the decision 182/05.07.2011 of the Inter-Ministerial Committee of Assets Restructuring and Privatizations (the “ICARP”) of the HR.
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2.
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DEUTSCHE TELEKOM AG, an electronic communications operator lawfully established and operating under the laws of the Federal Republic of Germany ("DT" or the "Purchaser"), having its registered seat in Bonn, Federal Republic of Germany, and lawfully represented for the purposes of this Agreement by Messrs Axel Lützner and Thorsten Langheim.
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(A)
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The Hellenic Telecommunications Organization S.A. ("OTE" or the "Company") is an electronic communications operator lawfully established and operating as a société anonyme under the laws of the HR, having its registered seat in Maroussi of Attica (at 99 Kifissias Av.). As at the date of this Agreement, the Company’s paid-up share capital amounts to Euro 1,171,459,429.71 (the "Existing Capital") and is divided into 490,150,389 common registered shares each having a nominal value of Euro 2.39 (the "Existing Shares"). The Existing Shares are listed and traded on the “Big Capitalization Category” of the “Securities Market” of the Athens Exchange (the "ATHEX") and are also traded on the London Stock Exchange in the form of “Global Depositary Receipts”.
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(B)
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Pursuant to its decisions 73/06.09.2006 and 74/09.11.2006, the Inter-Ministerial Privatization Committee of the HR (the "IPC") decided to initiate the process for further privatising OTE in accordance with Law 3049/2002.
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(C)
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Following the relevant decisions of the IPC and the Supervisory Board of DT, the Parties executed on 14 May 2008 a share purchase agreement for the sale and transfer by the HR to DT of 14,865,886 OTE Shares (as defined below) (the “Share Purchase Agreement”) and a shareholders’ agreement of same date (the “Shareholders’ Agreement”).
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(D)
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The Share Purchase Agreement and the Shareholders’ Agreement have been ratified by the Greek Parliament by virtue of Law 3676/2008.
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(E)
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On 5 November 2008 the HR transferred to DT the 14,865,886 OTE Shares under the Share Purchase Agreement.
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(F)
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On 31 July 2009 the HR transferred to DT 24,507,519 OTE Shares under Paragraph 6.1 of the Share Purchase Agreement, as per which HR was granted the right to require DT to purchase from the HR OTE Shares, representing five per cent (5%) of such shares at a price of twenty seven Euros and fifty cents (€ 27.50) per OTE Share,
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(G)
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According to Paragraph 6.2 of the Share Purchase Agreement, HR was granted the right to require DT to purchase from the HR OTE Shares (the "Put Option 2"), representing ten per cent (10%) of such shares (the "Put Option 2 Shares") at a price calculated in accordance with the provisions of Paragraph 6.2(a) of the Share Purchase Agreement (the "Put Option 2 Price"). The Put Option 2 becomes exercisable at the Put Option 2 Price by HR irrevocably giving Notice (the "Put Option 2 Exercise Notice") to DT of its intent to exercise the Put Option 2, specifying therein the exact number of the Put Option 2 Shares and the date for the transfer thereof, which shall be the third (3rd) Business Day after the expiration of one month from receipt by DT of the Put Option 2 Exercise Notice, namely the 11th of July, 2011 (the "Put Option 2 Date"). Further, Paragraph 6.3. of the Share Purchase Agreement provides that the transfer of any Put Option 2 Shares to DT from the HR shall require the entering into a separate written agreement, substantially in the form of the Share Purchase Agreement, with such adjustments as the Parties will deem necessary in view of the prevailing circumstances.
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(H)
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Following decision no. 181/02.06.2011 of the Interministerial Committee for Assets Restructuring & Privatisations (the “ICARP”), the HR sent via fax to DT the Put Option 2 Exercise Notice on 6 June 2011 for the sale and transfer thereto of all Put Option 2 Shares, i.e. 49,015,038 OTE Shares, at the Put Option 2 Price and at the Put Option 2 Date, i.e. the 11th of July 2011.
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(I)
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DT acknowledged by letter, dated 10 June 2011 and sent via fax, to the HR the safe receipt of the Put Option 2 Exercise Notice and confirmed its agreement on the exact number of the Put Option 2 Shares mentioned in the Put Option 2 Exercise Notice.
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(J)
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Pursuant to its decision dated 14th May, 2008, the Supervisory Board of DT approved the entering into this Agreement.
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(K)
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Pursuant to its decision 182/05.07.2011, the ICARP approved (i) the sale to DT of the Sale Shares (as defined below) at a price of seven Euros and ninety nine cents (€ 7.99) per OTE Share and in aggregate of three hundred ninety one million six hundred thirty thousand one hundred fifty three Euros and sixty two cents (€391,630,153.62), and (ii) has empowered the Minister of Finance to approve and sign, on behalf of the HR, this Agreement in accordance with paragraph 1(c) of article 4 of Law 3049/2002.
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NOW, THEREFORE, the Parties agree as follows:
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Article 1
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Definitions and Interpretation
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"Greece" means the Hellenic Republic and "Greek" shall be construed accordingly.
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(a)
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Any reference to a Paragraph or Article is to the relevant Paragraph or Article of this Agreement;
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(b)
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the Article headings are included for convenience only and shall not affect the interpretation of this Agreement;
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(c)
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use of the singular includes the plural and vice versa;
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(d)
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use of any gender includes the other gender;
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(e)
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any reference to "persons" includes natural persons, entities (whether or not having separate legal personality), organisations, governments, governmental agencies and any other similar bodies;
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(f)
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any reference to a Law shall be construed as referring to a Greek law; and
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(g)
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any reference to a Law, any other law, statute, statutory provision, rule or regulation, subordinate or enabling legislation ("legislation") shall be construed as referring to such legislation as amended from time to time and any legislation which re-enacts or codifies (with or without modification) any such legislation.
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Article 3
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Purchase Price - Payment Terms
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Article 4
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Completion
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(a)
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the Seller shall:
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(i) irrevocably instruct in writing the Seller's Broker, through an instruction letter substantially in the form of ANNEX A hereof, to sell to the Purchaser the Sale Shares at the Price per Share through a Block Trade, against due performance by the Purchaser of its obligations under subparagraph (b) below, as required under the ATHEX Regulation, and to clear and settle the Block Trade on the Settlement and Transfer Date, in accordance with the Clearing Regulation; and
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(ii) provide evidence to the Purchaser in the form of a print-out from the Seller’s Securities Account that the Sale Shares are credited in the Seller’s Securities Account;
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(b)
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the Purchaser shall:
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(i) irrevocably instruct in writing the Purchaser's Broker, through an instruction letter substantially in the form of ANNEX B hereof, to purchase from the Seller the Sale Shares at the Price Per Share through a Block Trade and to transfer the clearance and settlement of the Block Trade (μετάθεση συναλλαγής) on the Settlement and Transfer Date, in accordance with the Clearing Regulation, to the Purchaser’s Bank; and
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(ii) provide evidence to the Seller substantially in the form of ANNEX C hereof, that the Purchaser's Bank has received from the Purchaser an amount equal with the Purchase Price and has been instructed to utilise such funds for the purposes of clearing and settling the Block Trade on the Settlement and Transfer Date, in accordance with the Clearing Regulation.
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5.2
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The Parties agree that:
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(a)
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the credit of (i) the Purchase Price to the Seller's Account minus any Taxes, fees, duties and charges that may be payable by the Seller for the sale of the Sale Shares shall be conclusive evidence of the discharge of the Purchaser's obligation to pay the Purchase Price; and
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(b)
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the registration of the Sale Shares with the Securities Account shall be conclusive evidence of the discharge of the Seller's obligation to transfer the ownership over the Sale Shares to the Purchaser.
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(a)
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The HR is the sole and undisputed owner and possessor of the Sale Shares and it has the legal right and power to sell and transfer the Sale Shares, and upon transfer of the Sale Shares to DT pursuant to this Agreement title thereto will pass, free and clear of all Encumbrances.
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(b)
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The Sale Shares:
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(i)
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exist and are fully paid-in;
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(ii)
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represent not less than 10% of the voting rights in the Company; and
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(iii)
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are in dematerialised form, listed and traded on the "Big Capitalization Category" of the "Securities Market" of ATHEX.
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(c)
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The Relevant Rights deriving from the Sale Shares are free and clear of any Encumbrance.
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(d)
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The execution of this Agreement by the HR and performance of its obligations hereunder and all documents and instruments signed or to be signed pursuant hereto, and the consummation of the Transaction, have been duly approved by the HR.
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(a)
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it is duly incorporated, validly existing and operating and in good standing under the laws of the jurisdiction of its incorporation and has the requisite capacity, power and authority to enter into and to perform its obligations under this Agreement, the Transaction and any other document or instrument related hereto;
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(b)
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it has obtained all Consents necessary or required to enable DT to sign and perform its obligations under this Agreement, the Transaction and any other document or instrument related hereto, and such Consents remain in full force and effect, and no further steps on the part of DT are necessary or required to approve this Agreement or any other document or instrument relevant thereto and the consummation of the Transaction; and
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(c)
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the execution of this Agreement by DT and performance of its obligations hereunder and all documents and instruments signed or to be signed pursuant hereto, and the consummation of the Transaction, have been duly approved by DT.
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(a)
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shall not sell, transfer, assign or otherwise Encumber or dispose of any Sale Shares or to agree or commit to do any of the foregoing; and
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(b)
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shall, in general, refrain from any act or omission which may adversely affect the consummation of the Transaction.
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(a)
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information which is or becomes publicly available (otherwise than as a result of a breach of this Article 9);
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(b)
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information which is independently developed by the relevant Party at the date hereof or acquired from a third party, to the extent that it is acquired with the right to disclose it;
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(c)
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information which was lawfully in the possession of the relevant Party at the date hereof free of any restriction on disclosure;
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(d)
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information which, following disclosure under this Article 9, becomes available to the relevant Party from a source other than another Party which is not bound by any obligation of confidentiality in relation to such information;
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(e)
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the disclosure by a Party of Confidential Information to its directors, agents or employees, as the case may be, who/which need to know that Confidential Information in the reasonable opinion of such Party for purposes relating to this Agreement but the above persons shall not use that Confidential Information for any other purpose;
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(f)
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the disclosure of Confidential Information to the extent required to be disclosed by law or any court of competent jurisdiction, or any binding judgement, order or requirement of any competent Authority for the purposes of obtaining any Consent or otherwise, following consultation with the other Party;
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(g)
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the disclosure of Confidential Information to any Tax Authority to the extent reasonably required for the purposes of the tax affairs of the Party concerned or any member of its group;
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(h)
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the disclosure to a Party’s professional advisers of information reasonably required to be disclosed for purposes relating to this Agreement; or
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(i)
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any announcement, or circular made, or information provided in accordance with the terms of Articles 9 and 10.
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(b)
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not to disclose it to any third party (other than those persons to whom it has already been or may be disclosed in accordance with the terms of this Article 9).
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(a)
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The contact details of the Purchaser are:
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(b)
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The contact details of the Seller are:
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11.2
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Any Notice shall be deemed to have been served:
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(a)
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if delivered, at the date of delivery where it is delivered before 13.00 on a Business Day and, in any other case, at 10.00 on the Business Day following delivery; or
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(b)
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if posted, on the date of receipt where it is received before 15.00 on a Business Day and, in any other case, at 10.00 on the Business Day following receipt; or
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(c)
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if sent by facsimile or e-mail, on the date of transmission, where it is transmitted before 13.00 on a Business Day, and, in any other case, at 10.00 on the Business Day following the date of transmission, provided received in legible form.
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Signed on behalf of the Hellenic Republic
By
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Signed on behalf of Deutsche Telekom AG
By
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Name:
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Name:
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Position:
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Position:
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Place:
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Place:
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By
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Name:
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Position:
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Place:
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