-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OPhs0vn+MoM8yNd+ThFPycjGveFbcOlm1i1Z0pGYE8RBOaiXUM6S58BiarwJvY6K CK4LqTM3LkcVbjCz6RbDVA== 0001104659-10-002565.txt : 20100122 0001104659-10-002565.hdr.sgml : 20100122 20100122132042 ACCESSION NUMBER: 0001104659-10-002565 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20100122 DATE AS OF CHANGE: 20100122 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TELECOM ITALIA S P A CENTRAL INDEX KEY: 0000948642 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 000000000 STATE OF INCORPORATION: L6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-61827 FILM NUMBER: 10541112 BUSINESS ADDRESS: STREET 1: PIAZZA DEGLI AFFARI 2 CITY: 20123 MILAN STATE: L6 ZIP: L6 BUSINESS PHONE: 011-39-02-8595-1 MAIL ADDRESS: STREET 1: PIAZZA DEGLI AFFARI 2 CITY: 20123 MILAN STATE: L6 ZIP: L6 FORMER COMPANY: FORMER CONFORMED NAME: STET SOCIETA FINANZIARIA TELEFONICA PA DATE OF NAME CHANGE: 19950727 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Intesa Sanpaolo S.p.A. CENTRAL INDEX KEY: 0001374384 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 799960158 STATE OF INCORPORATION: L6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: PIAZZA SAN CARLO 156 CITY: TURIN STATE: L6 ZIP: 00000 BUSINESS PHONE: 39-011-555-1 MAIL ADDRESS: STREET 1: PIAZZA SAN CARLO 156 CITY: TURIN STATE: L6 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: Banca Intesa DATE OF NAME CHANGE: 20060831 SC 13D/A 1 a10-2312_1sc13da.htm SC 13D/A

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549

	SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
(Amendment No. 4)

TELECOM ITALIA S.p.A.

(Name of Issuer)

Ordinary Shares of euro 0.55 par value each

(Title of Class of Securities)

87927W10

(CUSIP Number)

Amedeo Nodari

Merchant Banking Department

Intesa Sanpaolo S.p.A.

(formerly known as Banca Intesa S.p.A.)

Piazza Scala, 6

20121 Milan, Italy

(+39) 02 8794 1852

With a copy to:

Michael S. Immordino, Esq.

Latham & Watkins

99 Bishopsgate

London EC2M 3XF

England

(+44) 207-710-1076

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

January 11, 2010

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-l(e), 240.13d-l(f) or 240.13d- l(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

CUSIP No. 87927W10

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of Above Persons (Entities Only). Intesa Sanpaolo S.p.A. (formerly known as Banca Intesa S.p.A.)

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			x
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC, BK

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Republic of Italy

Number of Shares Beneficially by Owned by Each Reporting Person With			7.	Sole Voting Power 39,925,130

			8.	Shared Voting Power 3,003,586,907 (See Item 5)

			9.	Sole Dispositive Power 14,845,170

			10.	Shared Dispositive Power 3,003,586,907 (See Item 5)

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 3,043,512,037 (See Item 5)

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 22.75% (See Item 5)

	14.	Type of Reporting Person (See Instructions) CO, BK

This Amendment No. 4 (this “Amendment”) amends the Statement on Schedule 13D (the “Schedule 13D”) filed on November 1, 2007 and as subsequently amended by Intesa Sanpaolo S.p.A., a company incorporated under the laws of the Republic of Italy (“Intesa Sanpaolo”), with respect to the ordinary shares, euro 0.55 par value per share (“Telecom Shares”), of Telecom Italia S.p.A., a company incorporated under the laws of the Republic of Italy (“Telecom Italia”). Capitalized terms used in this Amendment without definition have the meanings ascribed to them in the Schedule 13D, as amended.

Introduction.

As previously described in Amendments No. 2 and No. 3 to Schedule 13D (filed on December 1, 2009 and December 23, 2009, respectively, by Intesa Sanpaolo), the terms of SI’s exit from Telco were approved on November 26, 2009 and the SI Exit Transaction was concluded on December 22, 2009.

In addition, on December 22, 2009, the Non-Exiting Shareholders and Telco entered into a framework agreement (the “Framework Agreement”) pursuant to which the Non-Exiting Shareholders agreed, among other things, to take certain actions and enter into certain transactions in order to permit Telco: (a) to comply with its obligations under its existing credit facilities and (b) to refinance its financial indebtedness maturing in January 2010.

Consistent with the Framework Agreement, on January 11, 2010, Telco entered into a euro 1.3 bilion loan agreement (the “New Refinancing Facility”) with Société Générale, UniCredit Corporate Banking S.p.A., Intesa Sanpaolo and Mediobanca, as lenders (collectively, the “Senior Lenders”). The New Refinancing Facility matures on May 31, 2012 and is guaranteed by a pledge (the “Pledge”) in favor of the Senior Lenders over certain Telecom Italia Shares held by Telco (the “Pledged Shares”).

Also on January 11, 2010, in connection with the New Refinancing Agreement, the Non-Exiting Shareholders entered into an amendment agreement to the New Shareholders Agreement (the “Amendment Agreement”) pursuant to which the Non-Exiting Shareholders: (i) confirmed that each Non-Exiting Shareholder would endeavor to provide financial support to Telco on a pro rata basis (in proportion to its respective shareholding in Telco); (ii) established the terms and conditions upon which each Non-Exiting Shareholders may provide such support by means of a cash injection (a “Cash Injection”) if necessary under the New Refinancing Facility; and (iii) established the terms and conditions that would govern the Non-Exiting Shareholders’ option to acquire the Pledged Shares from the Senior Lenders (the “Call Option”) in the event that the Senior Lenders acquire any of the Pledged Shares by enforcing the Pledge. Further, on January 11, 2010, the terms of the Call Option were agreed between the Non-Exiting Shareholders and the Senior Lenders in a separate option agreement (the “Option Agreement”). A copy of the Amendment Agreement is filed as Exhibit 21 hereto, a copy of the Option Agreement is filed as Exhibit 22 hereto and a copy of the Telco press release announcing the events described above, dated January 11, 2010, is filed as Exhibit 23 hereto.

Items 5, 6 and 7 of Schedule 13D are hereby amended and supplemented to add the following:

Item 5. Interest in Securities of the Issuer

Intesa Sanpaolo, through its interest in Telco, may be deemed to beneficially own 3,003,586,907 Telecom Shares, representing approximately 22.4% of the outstanding Telecom Shares. Intesa Sanpaolo may be deemed to have shared power to vote, or direct the vote, and shared power to dispose, or direct the dispositions, of such Telecom Shares.

In addition, Intesa Sanpaolo may be deemed to have sole power to vote or direct the vote of 39,925,130 Telecom Shares and sole power to dispose or direct the disposition of 14,845,170 Telecom Shares through its

direct holdings and the holdings of various subsidiaries, representing approximately 0.3% and 0.1% of the outstanding Telecom Shares, respectively. These shares are not currently expected to be contributed to Telco.

The beneficial ownership of Telecom Shares by the persons listed in Annex A to Schedule 13D, to the extent currently available and to the best of Intesa Sanpaolo’s knowledge, is indicated next to such person’s name in such Annex A. To the best of Intesa Sanpaolo’s knowledge, such persons have sole voting and dispositive power over the Telecom Shares that they beneficially own. Except as described in Annex B, Intesa Sanpaolo has not effected any transaction in the Telecom Shares since the date of the last event which required a filing on Schedule 13D. Intesa Sanpaolo does not currently have information on any transaction in Telecom Shares since the date of the last event which required a filing on Schedule 13D by the persons listed in Annex A.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

AMENDMENT AGREEMENT

The description of the Amendment Agreement in the Introduction to this Amendment No. 4 is incorporated herein by reference.

Pursuant to the Amendment Agreement, Cash Injections will be made by means of a shareholders’ loan or by any other means mutually agreed within the timeframe provided for under the New Refinancing Agreement to prevent the Senior Lenders from acquiring any of the Pledged Shares by enforcing the Pledge. Each Non-Exiting Shareholder is allowed to propose to finance its pro-rata share Cash Injection through the purchase of bonds issued by Telco and, possibly, to the extent practicable within the above mentioned timeframe, through a fully funded bridge loan.

If one or more Non-Exiting Shareholders refuses to provide its pro-rata share Cash Injection (such Non-Exiting Shareholder, a “Dissenting Shareholder”), the other Non-Exiting Shareholders (the “Supporting Shareholders”) may fund the shortfall pro-rata among themselves in the same proportion as their respective shareholdings in Telco. If, however, the Dissenting Shareholder is a holder of Telco Class A shares, the corresponding right to cover its Cash Injection is granted only to, and may be exercised only by, other Supporting Shareholders that hold Telco Class A shares.

If the Senior Lenders acquire any of the Pledged Shares by enforcing the Pledge (such shares, the “Foreclosed Shares”), the Supporting Shareholders may exercise the Call Option granted under the Option Agreement on such Foreclosed Shares pro-rata among themselves in the same proportion as their respective shareholdings in Telco as of the date of exercise of the Call Option. Any Foreclosed Shares for which the Call Option has not been exercised by one or more Non-Exiting Shareholders (a “Non-Exercising Shareholder”) may be acquired: (i) by another Supporting Shareholder holding Telco shares of the same class as the Telco shares held by such Non-Exercising Shareholder, and (ii) if the applicable Foreclosed Shares are not acquired pursuant to (i), any Supporting Shareholder holding Telco shares of the other class may acquire such Foreclosed Shares.

The foregoing summary of certain material provisions of the Amendment Agreement does not purport to be a full and complete description of such document and is entirely qualified by reference to the full text of such document attached as Exhibit 21 hereto.

OPTION AGREEMENT

Pursuant to the Option Agreement the Senior Lenders will provide written notice to the Non-Exiting Shareholders of any enforcement of the Pledge under the New Facility Agreement (the “Enforcement Notice”). Together with the Enforcement Notice, the Senior Lenders will also deliver to the Non-Exiting Shareholders a written notice (the “Calculation Notice”) stating (i) the aggregate outstanding amount plus accrued and unaccrued interest and any other costs and expenses, including enforcement costs under the New Refinancing Facility; (ii) the price at which the Senior Lenders are entitled to acquire the Pledged Shares by enforcing the Pledge (i.e. for listed Subject Shares, as hereinafter defined, the average market price for the prior 5 business days) (the

“Enforcement Price”), and (iii) the number of Pledged Shares subject to acquisition by the Senior Lenders pursuant to the Pledge (the “Subject Shares”).

Each Non-Exiting Shareholder is entitled to acquire from the Senior Lenders the Subject Shares at a price per Subject Share equal to the higher of (i) the aggregate outstanding amount plus accrued and unaccrued interest and any other costs and expenses, including enforcement costs under the New Refinancing Facility divided by the aggregate number of the Subject Shares, and (ii) the Enforcement Price.

Non-Exiting Shareholders may exercise the Call Option exclusively for the exact amount of Subject Shares by delivery to the Senior Lenders and the other Non-Exiting Shareholders of a written notice (the “Exercise Notice”), no later than five business days after receipt of the Calculation Notice, provided, however, that if there is a discrepancy in the aggregate number of Subject Shares reported on the Exercise Notices due to clerical errors, the relevant Non-Exiting Shareholders are entitled to cure, within one business day, such clerical errors.

The foregoing summary of certain material provisions of the Option Agreement does not purport to be a full and complete description of such document and is entirely qualified by reference to the full text of such document attached as Exhibit 23 hereto.

Item 7. Materials to be Filed as Exhibits

Exhibit 21:	Amendment Agreement, dated January 11, 2010, by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A.

Exhibit 22:	Option Agreement, dated January 11, 2010, by and among Intesa Sanpaolo S.p.A., Mediobanca - Banca di Credito Finanziario S.p.A., Unicredit Corporate Banking S.p.A., Société Générale, as lenders, and Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca - Banca di Credito Finanziario S.p.A. as shareholders

Exhibit 23:	Telco S.p.A. press release, dated January 11, 2010

SIGNATURE

After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Date: January 22, 2010
	INTESA SANPAOLO S.p.A.


	By:	/s/ Marco Cerrina Feroni
		Name:	Marco Cerrina Feroni
		Title:	Head of Merchant Banking Department

ANNEX A

DIRECTORS AND EXECUTIVE OFFICERS OF INTESA SANPAOLO

The name, title, present principal occupation or employment of each of the directors and executive officers of Intesa Sanpaolo are set forth below. The business address of each director and executive officer is Intesa Sanpaolo’s address. Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to Intesa Sanpaolo. All of the persons listed below are citizens of the Republic of Italy, except Antoine Bernheim who is a French citizen.

Name and surname	Position with Intesa Sanpaolo	Present Principal Occupation (if different from Position with Intesa Sanpaolo)	Telecom Shares Beneficially Owned

Enrico SALZA	Chairman of Management Board	—	—

Orazio ROSSI	Deputy Chairman of Management Board	Commercial and industrial entrepreneur and Chairman, Cassa di Risparmio del Veneto S.p.A.	—

Corrado PASSERA	Member of Management Board, Managing Director and CEO	—	—

Elio Cosimo CATANIA	Member of Management Board	Chairman and Managing Director, Azienda Trasporti Milanesi S.p.A.	—

Aureliano BENEDETTI	Member of Management Board	Chairman, Banca CR Firenze S.p.A.	—

Giuseppe FONTANA	Member of Management Board	Businessman, head of the Fontana Group holding company	*

Gian Luigi GARRINO	Member of Management Board	Chairman, Fondaco SGR S.p.A.	—

Virgilio MARRONE	Member of Management Board	Director, FIAT S.p.A.	1,545

Emilio OTTOLENGHI	Member of Management Board	Businessman and Chairman, Banca IMI S.p.A., La Petrolifera Italo Rumena S.p.A.	103,000

Giovanni PERISSINOTTO	Member of Management Board	Managing Director, Assicurazioni Generali S.p.A.	103,049

Marcello SALA	Member of Management Board	Director, Banca IMI S.p.A., Banca ITB S.p.A.	—

Giovanni Bazoli	Chairman of Supervisory Board	—	60,934

Antoine Bernheim	Deputy Chairman of Supervisory Board	Manager - Chairman Assicurazioni Generali Group	189,934

Rodolfo Zich	Deputy Chairman of Supervisory Board	Professor	—

Carlo Barel di Sant’Albano	Member of Supervisory Board	Manager - CEO EXOR S.p.A	—

Name and surname	Position with Intesa Sanpaolo	Present Principal Occupation (if different from Position with Intesa Sanpaolo)	Telecom Shares Beneficially Owned

Rosalba Casiraghi	Member of Supervisory Board	Consultant	—

Marco Ciabattoni	Member of Supervisory Board	Professional (CPA) & Professor	—

Giovanni Costa	Member of Supervisory Board	Professor	15,110

Franco Dalla Sega	Member of Supervisory Board	Professor	—

Gianluca Ferrero	Member of Supervisory Board	Chartered Accountant	—

Angelo Ferro	Member of Supervisory Board	Professor	—

Pietro Garibaldi	Member of Supervisory Board	Professor	5,000

Giulio Stefano Lubatti	Member of Supervisory Board	Consultant	—

Giuseppe Mazzarello	Member of Supervisory Board	-	10,000

Eugenio Pavarani	Member of Supervisory Board	Professor	—

Gianluca Ponzellini	Member of Supervisory Board	Chartered Accountant	—

Gianguido Sacchi Morsiani	Member of Supervisory Board	—	—

Ferdinando Targetti	Member of Supervisory Board	Professor	6,000

Livio Torio	Member of Supervisory Board	Lawyer	—

Riccardo Varaldo	Member of Supervisory Board	Professor	—

* Mr. Fontana does not currently own any Telecom Shares. However, Mr. Fontana owns 121,976 Telecom Italia convertible bonds that are convertible into Telecom Shares.

ANNEX B

TRANSACTIONS IN TELECOM ITALIA ORDINARY SHARES

The following describes transactions since the date of the last event which required a filing on Schedule 13D by Intesa Sanpaolo or its affiliates in Telecom Shares. These transactions were all ordinary course broker-dealer activities engaged in by Intesa Sanpaolo or its affiliates consistent with its usual practices and unrelated to the Telco transaction. Substantially all of these transactions consisted of index arbitrage; index rebalance trading; program trading relating to baskets of securities; creation, redemption and balancing of exchange traded funds; facilitation of customer trades; model-driven trading and error correction.

Name of Intesa
Sanpaolo entity
or affiliate

Number of
Buys

Buy Volume

High/Low Buy
Prices
(in €)

Number of
Sells

Sell Volume

High/Low Sell
Prices
(in €)

Banca IMI

125

2,845,520

1.12/1.05

3,237,717

1.11/1.06

EXHIBIT INDEX

Exhibit No.

99.1		Co-Investment Agreement, dated as of April 28, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*

99.2		Amendment to the Co-Investment Agreement and the Shareholders’ Agreement, dated October 25, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*

99.3		Shareholders’ Agreement, dated as of April 28, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*

99.4		By-laws of Olimpia S.p.A. (unofficial English translation).*

99.5		Share Purchase Agreement, dated May 4, 2007, by and among the Investors, Pirelli and Sintonia.*

99.6		The Announcement of the Board of Commissioners of the Brazilian National Telecommunications Agency (Anatel) related to the Transaction, dated October 23, 2007 (unofficial English translation).*

99.10		By-laws of Telco S.p.A. (unofficial English translation).*

99.11		Call Option Agreement, dated November 6, 2007, between Telefónica and Telco.*

99.12		Amendment to Shareholders Agreement and to Bylaws, dated November 19, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*

99.13		Amended and Restated By-laws of Telco (unofficial English translation).*

99.14		Letter of Adherence to the Call Option Agreement by Olimpia S.p.A., dated November 15, 2007.*

99.15		Renewal Agreement, dated October 28, 2009, by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. *

99.16		Amendment Deed to the Call Option, dated October 28, 2009, by and between Telefónica S.A. and Telco S.p.A. *

99.17		Joint press release, dated October 28, 2009, issued by Telefónica S.A., Assicurazioni Generali S.p.A, Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. *

99.18		Telco S.p.A. press release, dated November 26, 2009.*

99.19		Purchase and Sale Agreement, dated December 22, 2009 by and between Telco S.p.A. and Sintonia S.A. (unofficial English translation) *

99.20		Telco S.p.A. press release, dated December 22, 2009. *

99.21		Amendment Agreement, dated January 11, 2010, by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A.

99.22		Option Agreement, dated January 11, 2010, by and among Intesa Sanpaolo S.p.A., Mediobanca -

		Banca di Credito Finanziario S.p.A., Unicredit Corporate Banking S.p.A., Société Générale, as lenders, and Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca - Banca di Credito Finanziario S.p.A. as shareholders.

99.23		Telco S.p.A. press release, dated January 11, 2010

* Previously filed.

EX-99.21 2 a10-2312_1ex99d21.htm EX-99.21

Exhibit 99.21

This amendment agreement (the “Amendment Agreement”) is entered into on

11th January 2010

BY AND BETWEEN

· TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”);

· ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at Piazza Duca degli Abruzzi n. 2, Trieste, Italy;

· ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Mazzini n. 53;

· INA ASSITALIA S.p.A., an Italian company with registered office at Roma, Corso d’Italia n. 33;

· GENERALI LEBENSVERSICHERUNG A.G., a German company with registered office at Hamburg (Germany), an der Besenbinderhof n. 43;

· GENERALI VIE S.A., a French company with registered office at Paris, Bld Hausmann 11;

· ASSICURAZIONI GENERALI S.p.A. (hereinafter “Generali”), for its own account and in the name and on behalf of the following Generali’s subsidiaries GENERALI VIE S.A., ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A., GENERALI LEBENSVERSICHERUNG A.G., (hereinafter the “Generali Subsidiaries” and together with Generali collectively “AG”);

· INTESA SANPAOLO S.p.A, an Italian company with registered office at Piazza San Carlo n. 156, Torino, Italy (“IS”);

· MEDIOBANCA S.p.A., an Italian company with registered office at Piazzetta Cuccia n. 1, Milano, Italy (“MB”);

(collectively the “Parties” and each, individually, a “Party”);

WHEREAS

A. On 28 April 2007 the Parties and Sintonia S.A., a company incorporated under the laws of Luxembourg, with registered office at 1, Place d’Armes, L-1136 Luxembourg, commercial register n. B77504 (“Sintonia”) entered into a shareholders agreement, as subsequently amended and supplemented with a first deed of amendment dated 25 October 2007 and with a second deed of amendment dated 19 November 2007 (the “Shareholders Agreement”);

B. on 28 October 2009, Sintonia indicated that it did not wish to renew the Shareholders Agreement and exercised the exit right set out thereunder;

C. on the same 28 October 2009, the Parties also agreed (i) to renew the Shareholders Agreement for an additional period of three years (i.e. as of 28 April 2010 until 27 April 2013) and (ii) to amend and renew certain provisions of the Shareholders Agreement (such amended and renewed Shareholders Agreement, the “New Shareholders Agreement”);

D. on 26 November 2009 the board of directors and the shareholders meeting of Telco S.p.A. (“Telco”) approved the transactions to allow the exit of Sintonia and adopted all the necessary resolutions required in connection therewith;

E. the exit of Sintonia has been completed on 22 December 2009 through the execution of a sale and purchase agreement (the “Sale and Purchase Agreement”) whereby, in the same context and as one and single transaction: (i) Sintonia has sold to Telco all the shares held by Sintonia in Telco, representing approximately 8.39% of the share capital of the latter, and (ii) Telco has sold to Sintonia, no. 275,115,716 ordinary shares of Telecom Italia, representing approximately 2.06% of the ordinary share capital of Telecom Italia. On the basis of the Sale and Purchase Agreement, upon completion of the exit of Sintonia,

Telco has received on 22 December, 2009 from Sintonia a net cash amount equal to Euro 311,793,414.25;

F. following completion of the exit of Sintonia, (x) Telco holds 3,003,586,907 ordinary shares of Telecom Italia, equivalent to approximately 22.45% of the ordinary share capital of Telecom Italia and (y) the shareholding of Telco is the following: (i) AG (i.e. the Generali and the Generali Subsidiaries) holds no. 543,364,315 Class A shares of Telco representing approximately 30.58% of Telco’s share capital, (ii) IS holds no. 206,464,495 Class A shares of Telco representing approximately 11.62% of Telco’s share capital, (iii) MB holds no. 206,464,495 Class A shares of Telco representing approximately 11.62% of Telco’s share capital, and (iv) TE holds no. 820,569,068 Class B shares of Telco representing approximately 46.18 % of Telco’s share capital (each of such shareholding, the “New Shareholding in Telco”);

G. on 22 December 2009, Telco and the Parties also executed a framework agreement (the “Framework Agreement”), whereby the Parties and Telco, among other things, agreed the actions and transactions to be carried out in order to allow Telco (aa) to comply with its obligations under the existing credit facilities and (bb) to refinance its financial indebtedness to be repaid within January 2010;

H. it is envisaged that one of the transactions that Telco will carry out in order to refinance its financial indebtedness will be the execution with primary financial institutions (the “Senior Lenders”), including MB and IS, acting in their capacity as lending banks, of a new facility for an amount not exceeding Euro 1,400,000,000 (the “New Refinancing Facility”);

I. it is expected that under the New Refinancing Facility a certain number of the Telecom Italia shares held by Telco will be pledged in favor of the Senior Lenders (the “Pledged Shares”).

Now, therefore, in consideration of the foregoing premises the Parties hereby

AGREE AND COVENANT

as follows:

1. Unless differently provided herein, terms and expressions used with initials in capital letters in this Amendment Agreement shall have the same meaning attributed to them in the New Shareholders Agreement.

2. Consistently with the principles and spirit of the Shareholders’ Agreement and of the Framework Agreement, executed in order to allow Telco to comply with its obligations under the existing credit facilities and to refinance its financial indebtedness, each of the Parties agrees that, in proportion to its New Shareholding in Telco, it will endeavor to support Telco and, in particular, to make available to Telco the funds necessary to avoid or cure any possible default under the New Refinancing Facility (the “Cash Injection”). The Parties agree to start a negotiation in this respect with sufficient time in advance. Such Cash Injection shall be made (aa) through a shareholders loan or any other appropriate financial instruments agreed among the Parties, and in any case (bb) within the timeframe provided for under the New Refinancing Facility to prevent the foreclosure and subsequent appropriation or sale by the Senior Lenders of the Pledged Shares (the “Foreclosure of the Pledge”), provided that (cc) each Party shall be allowed to propose to finance its Cash Injection through an issue of bonds by Telco with mechanics consistent with those agreed under the Framework Agreement and, to the extent available within the timeframe above under (bb) above, through a fully funded bridge loan, and that in such case all Parties (acting exclusively in their capacity as Telco’s shareholders) shall endeavor to cooperate to allow such financing. The Parties acknowledge and agree that their agreement to endeavor to support Telco’s financial indebtedness pursuant to the terms and conditions set out in this Amendment Agreement (i) is only among the Parties acting exclusively in their capacity as Telco’s shareholders, (ii) is not in favor of Telco nor in favor of any third interested party (including but not limited to the lenders of Telco) and (iii) in case of breach, is only sanctioned in accordance with the provisions set out in the following Articles 3 and 4, which constitute the sole and exclusive remedy for such a breach, also pursuant to Article 1382, first paragraph of the Italian Civil Code.

3. In order to implement the principles under article 2 above, the Parties acknowledge and agree that under the New Refinancing Facility there may be from time to time the need for additional cash (the “Cash Call”). In case of a Cash Call, or in case in which the Senior Lenders may notify to Telco and/or the Parties the intention to begin the Foreclosure of the Pledge, each of the Parties shall endeavor to support Telco through a Cash Injection in proportion to its New Shareholding in Telco and in accordance with the provisions set forth in Article 2 above. Should one or more Party/ies refuse(s) to participate to the Cash Injection (the “Dissenting Parties”; for the avoidance of doubt the Dissenting Party/ies will be the Party/ies that refuse(s) to make available to Telco in proportion to its/their New Shareholding in Telco — through a modality complying with the terms set forth above in (aa), (bb), or (cc) of Article 2 above — the funds necessary to Telco to avoid or cure the default under the New Refinancing Facility within the timeframe necessary to avoid the Foreclosure of the Pledge), the other Party/ies (the “Supporting Parties”) shall be entitled, pro rata among themselves based on their respective New Shareholding in Telco, to make good and cover the portion of the Cash Injection pertaining to the Dissenting Parties (the “Additional Funding Portion”), provided however that, in any such case, if the Dissenting Party is a Class A shareholder of Telco, the right (but not the obligation) to inject the Additional Funding Portion will only be attributed to, and exercisable by other Class A Shareholders who are at the same time Supporting Parties.

4. The Parties further acknowledge and agree that in the event the Cash Injection is for whatever reason not fully covered and, as a result of this, the Senior Lenders activate the Foreclosure of the Pledge, then the Supporting Parties shall be entitled to acquire the Pledged Shares from the Senior Lenders at the terms and conditions set out in the option agreement attached hereto as Annex A (the “Option Agreement”). In this connection, the Parties further agree among them that:

a) the right to acquire the Pledged Shares under the Option Agreement (the “Call Right”) will only be exercisable by the Supporting Parties, and not by the Dissenting Parties;

b) each of the Supporting Parties will have the Call Right on a pro-quota of the Pledged Shares proportional to its percentage of the share capital of Telco at the time when the Call Right will be exercised (the “First Option Pro-Quota of the Pledged Shares”);

c) the Supporting Party/ies that is/are Class A Shareholder/s will also have the Call Right on the portion of Pledged Shares (in each case the “Non Called Class A First Shares”) corresponding to (i) the Dissenting Party/ies that is/are Class A Shareholder/s and (ii) the Supporting Party/ies that is/are Class A Shareholders which do not validly deliver their First Exercise Notice (as defined below) within the First Exercise Deadline (as defined below);

d) the Supporting Party/ies that is/are Class B Shareholder/s will also have the Call Right on the portion of Pledged Shares (in each case the “Non Called Class B First Shares”) corresponding to (i) the Dissenting Party/ies that is/are Class B Shareholder/s and (ii) the Supporting Party/ies that is/are Class B Shareholders which do not validly deliver their First Exercise Notice (as defined below) within the First Exercise Deadline (as defined below);

e) each of the Supporting Parties that intends to acquire Pledged Shares shall deliver to the other Supporting Parties a written notice (the “First Exercise Notice “) no later than 14.00hrs CET on 2 Business Days (the “First Exercise Deadline”) after receipt of the Calculation Notice (as defined in Clause 1.2.1 of the Option Agreement) stating its unconditional and irrevocable intention to purchase from the Senior Lenders all, but not part, of its First Option Pro-Quota of the Pledged Shares. Each of the Supporting Parties that are Class A Shareholders and that have validly delivered the First Exercise Notice shall be referred to as the “First Class A Calling Shareholders”; each of the Supporting Parties that are Class B Shareholders and that have validly delivered the First Exercise Notice

shall be referred to as the “First Class B Calling Shareholders” (together the “First Calling Shareholders”);

f) each of the First Class A Calling Shareholders may deliver to the other First Calling Shareholders a further written notice (the “Second Class A Exercise Notice”) by no later than 14.00hrs CET on 3 Business Days after receipt of the Calculation Notice (the “Second Class A Exercise Deadline”) stating its unconditional and irrevocable intention (or the unconditional and irrevocable intention of an Italian Qualified Investor/s’, as defined in the Shareholders Agreement) to acquire from the Senior Lenders a maximum number of the Non Called Class A First Shares (the “Called Second Shares”). Each of the First Class A Calling Shareholders who have validly delivered the Second Class A Exercise Notice shall be referred to as the “Second Class A Calling Shareholders”;

g) if the aggregate maximum number of Called Second Shares indicated in the relevant Second Class A Exercise Notice(s) is equal to the Non Called Class A First Shares, then such shares shall be allocated among each Second Class A Calling Shareholders as per the Called Second Shares indicated in their corresponding Second Class A Exercise Notice(s);

h) if the aggregate maximum number of Called Second Shares indicated in the relevant Second Class A Exercise Notice(s) is more than the Non Called Class A First Shares, then such shares shall be allocated among each Second Class A Calling Shareholders on a proportional basis based on the Called Second Shares indicated in their corresponding Second Class A Exercise Notice(s);

i) if the aggregate maximum number of Called Second Shares indicated in the relevant Second Class A Exercise Notice(s) is less than the Non Called Class A First Shares, then such shares shall be allocated among each Second Class A Calling Shareholders (or Italian Qualified Investors, as defined in Article 8.2 of the Shareholders Agreement, if any) as per the

Called Second Shares indicated in their corresponding Second Class A Exercise Notice(s), and each of the First Class B Calling Shareholders may deliver to the First Class A Calling Shareholders a written notice (the “Second Class B Exercise Notice”) by no later than 14:00hrs CET on 1 Business Day after expiry of the term for the Second Class A Exercise Notice (the “Second Class B Exercise Deadline”) stating its unconditional and irrevocable intention to acquire from the Senior Lenders a number of Pledged Shares equal to the difference between the total number of Pledged Shares and the sum of the shares indicated in the First Exercise Notice and the Second Class A Exercise Notice, if applicable;

j) the provisions referred to in points from in points f) through i) above shall apply, mutatis mutandis, to the Non Called Class B First Shares (with the exception of the possibility to identify and nominate, for the purposes herein, Italian Qualified Investors) .

k) each of the First Calling Shareholders shall be obliged to deliver to the Senior Lenders, with a copy to Telco and all other First Calling Shareholders, the Exercise Notice within the Exercise Deadline (as both defined in the Option Agreement), including the number of Pledged Shares that it unconditionally and irrevocably offers to purchase from the Senior Lenders (or retain pursuant to clause 1.2.7 of the Option Agreement), which must be calculated in compliance with above provisions (hereinafter the “Allocated Pledged Shares” of the relevant First Calling Shareholder).

5. Notwithstanding the provisions of Article 12 of the New Shareholders’ Agreement, any notice and communication among Parties under this Amendment shall be made by email and fax at the following fax numbers and email addresses:

To Assicurazioni Generali:

Assicurazioni Generali S.p.A.

Piazza Duca degli Abruzzi n. 2

34132 Trieste, Italy

Fax: +39 040 671260

To the attention of: Mr. Giovanni Perissinotto and Mr. Oliviero Pessi

E-mail: giovanni_perissinotto@generali.com and

oliviero_pessi@generali.com

To Intesa:

Intesa Sanpaolo S.p.A.

Piazza Scala n. 6

20121 Milano, Italy

Fax: +39 02 879 43540

To the attention of: Mr. Gaetano Miccichè and Mr. Amedeo Nodari

E-mail: gaetano.micciche@intesasanpaolo.com and

amedeo.nodari@intesasanpaolo.com

To Mediobanca:

Mediobanca - - Banca di Credito Finanziario S.p.A.

Piazzetta Cuccia n. 1

20121 Milano, Italy

Fax: +39 02 8829 943

To the attention of: Mr. Clemente Rebecchini and Mr. Francesco Coatti

E-mail: clemente.rebecchini@mediobanca.it and

francesco.coatti@mediobanca.it

To Telefonica:

Telefonica S.A.

C/Ronda de la Comunicacion, s/n, Distrito C, Edificio Central, Planta 1a

28050 Madrid, Spain

Fax: +34 91 727 1405 and +34 91 727 1400

To the attention of: Group General Counsel (Ramiro Sánchez de Lerín) and María Luz Medrano

E-mail: secretaria.general@telefonica.es and

mmedrano@telefonica.es

6. The Parties agree that the New Shareholders Agreement is integrated and — to the extent necessary — amended by this Amendment Agreement. In case of conflict between the provisions of this Amendment Agreement and the provisions of the New Shareholders Agreement, the provisions of this Amendment Agreement shall prevail. Subject to the above, all the provisions of the New Shareholders Agreement remain in full force and effect.

7. This Amendment Agreement — as the Shareholders Agreement and the New Shareholders Agreement — shall be governed by, and interpreted in accordance with, the laws of the Republic of Italy. Any disputes arising out of or in connection with this Amendment Agreement shall be submitted by the Parties to arbitration. The venue of the arbitration shall be Milan. The arbitration shall be conducted in the English language and in accordance with ICC Rules.

* * * * *

TELEFÓNICA, S.A.



ASSICURAZIONI GENERALI S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries)



INTESA SANPAOLO S.p.A.



MEDIOBANCA S.p.A.

EX-99.22 3 a10-2312_1ex99d22.htm EX-99.22

Exhibit 99.22

This option agreement (the “Agreement”) is entered into on

11th January 2010

BY AND BETWEEN

(1) INTESA SANPAOLO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazza San Carlo No. 156, Torino, Italy, registered with the Companies’ Registry of Turin under No. 00799960158, in its quality as lender under the facility agreement entered into on even date hereof with Telco S.p.A. (“Intesa Sanpaolo”),

(2) MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazzetta Cuccia No. 1, Milano, Italy, registered with the Companies’ Registry of Milan under No. 00714490158, in its quality as lender under the facility agreement entered into on even date hereof with Telco S.p.A. (“Mediobanca”);

(3) UNICREDIT CORPORATE BANKING S.P.A. Società per Azioni, with Sede Legale e Direzione generale in Verona, Via Garibaldi 1, Share Capital euro 6,604,173,696.00 registered with the Companies’ Registry of Verona, Tax Code and VAT Number n° 03656170960 - Cod. ABI 03226.8, a company with a sole shareholders enrolled in the register of banks and belonging to the Gruppo Bancario UniCredito Italian enrolled in the registered of the banking groups under n. 3135.1, member of the Fondo Interbancario di Tutela dei Depositi (“UCB”);

(4) SOCIÉTÉ GÉNÉRALE, a company incorporated under the laws of France, with registered office in Paris, Boulevard Haussmann 29, acting through its Milan branch, with its offices at Via Olona 2, Milan, registered with the Companies Registry of Milan under number 8011215158, Milan REA number 748666, registered with the Banks Registry of the Bank of Italy under number 4858 (“SG”)

(Intesa Sanpaolo, Mediobanca, UCB and SG hereinafter collectively referred as the “Lenders”);

AND

(5) TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”);

(6) ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at Piazza Duca degli Abruzzi n. 2, Trieste, Italy;

(7) ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Mazzini n. 53;

(8) INA ASSITALIA S.p.A., an Italian company with registered office at Roma, Corso d’Italia n. 33;

(9) GENERALI LEBENSVERSICHERUNG A.G., a German company with registered office at Hamburg (Germany), an der Besenbinderhof n. 43;

(10) GENERALI VIE S.A., a French company with registered office at Paris, Bld Hausmann 11;

(11) ASSICURAZIONI GENERALI S.p.A. (hereinafter “Generali”), for its own account and in the name and on behalf of the following Generali’s subsidiaries GENERALI VIE S.A., ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A., GENERALI LEBENSVERSICHERUNG A.G., (hereinafter the “Generali Subsidiaries” and together with Generali collectively “AG”);

(12) INTESA SANPAOLO S.p.A, an Italian company with registered office at Piazza San Carlo n. 156, Torino, Italy, in its quality as shareholder of Telco S.p.A. (“IS”);

(13) MEDIOBANCA- BANCA DI CREDITO FINANZIARIO S.p.A.- Banca di Credito Finanziario, an Italian company with registered office at Piazzetta Cuccia n. 1, Milano, Italy, in its quality as shareholder of Telco S.p.A (“MB”);

(TE, AG, IS and MB hereinafter collectively referred as the “Shareholders”);

(the “Parties).

BETWEEN THE PARTIES IT IS AGREED as follows:

1.1 The Facility Agent (as defined below) undertakes to copy the Shareholders in any of the communications to be given to the Borrower in relation to Clause 19.12 (Acceleration) of the facility agreement entered into on even date hereof between inter alia the Lenders and Telco S.p.A. and Unicredit Corporate Banking S.p.A. — the “Facility Agent”- (the “New Banking Facility Agreement”),

1.2 Without prejudice to 1.1 above, should the Lenders decide to enforce the share pledge created over Telecom Italia S.p.A. ordinary shares pursuant to the provision of the pledge agreement to be entered into pursuant to the New Banking Facility Agreement (the “Share

Pledge” and the “Share Pledge Agreement” respectively) (a form of which is attached hereto as Schedule 1) following an acceleration pursuant to and in accordance with Clause 19.12 of the New Banking Facility Agreement, the following shall apply.

1.2.1 The Facility Agent shall copy the shareholders of Telco (each a “Shareholder”) in the notice enforcing the Share Pledge to be given to Telco pursuant to Clause 6.1 of the Share Pledge Agreement (the “Enforcement Notice”). Together with the Enforcement Notice, the Facility Agent will also deliver to the Shareholders a calculation notice (the “Calculation Notice”) stating (i) the aggregate amount outstanding under the New Banking Facility Agreement plus interest accrued and to accrue thereunder and all other costs and expenses, including enforcement costs, up to the Transfer Date (as defined below); (ii) the price at which the Lenders can appropriate the pledged shares pursuant to Clause 6.3 of the Share Pledge Agreement; and consequently (iii) the number of pledged shares that the Lenders may have the right to appropriate pursuant to the Share Pledge Agreement (the “Appropriation Shares”). It is agreed and understood that, if Clause 6.3(i)(c) and/or Clause 6.3(ii)(c) of the Share Pledge Agreement apply, the Calculation Notice shall be sent after the Facility Agent having obtained the appraisal referred to thereunder. If notwithstanding the good faith efforts of the Facility Agent and the appointment of a second investment bank pursuant to Clauses 6.3(i)(c) and 6.3(ii)(c) no appraisal is obtained within 65 Business Days from the Enforcement Notice the Shareholders shall no longer have any right to purchase Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided in such case that upon enforcement of the pledge in accordance with the Share Pledge Agreement the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any sale process of the Appropriation Shares.

1.2.2 Each Shareholder shall be entitled to call and acquire from the Lenders (the “Right to Call”) Appropriation Shares at the terms and conditions referred to herein and at a price per Appropriation Share (the “Purchase Price”) equal to the higher of (i) the price indicated in Clause 1.2.1 (ii), and (ii) the amount indicated in Clause 1.2.1 (i) divided by the aggregate total number of the Appropriation Shares. The Facility Agent shall include the Purchase Price in the Calculation Notice.

1.2.3 In order to exercise its Right to Call, each relevant Shareholder(s) shall deliver to the Facility Agent and the other Shareholders a written notice (the “Exercise Notice”), no later than 5 Business Days (the “Exercise Deadline”) after receipt of the Calculation Notice, stating (i) its unconditional and irrevocable offer to purchase from the Lenders all or part of the Appropriation Shares at a price per share equal to the Purchase Price and (ii) that the Exercise Notice complies with the shareholders agreement in force between the Shareholders, as amended (the “Shareholders Agreement”)..

1.2.4 The Exercise Notices shall be given to Unicredit Corporate Banking S.p.A. in its capacity as Facility Agent (or to any of its successors pursuant to the provisions of Clause 20.13 of the New Banking Facility Agreement), copy to all the other Shareholders.

1.2.5 The Exercise Notices shall be valid and effective only if and to the extent they contain in aggregate offers to purchase the exact amount of the Appropriation Shares. If, instead, the Exercise Notices contain in aggregate offers to purchase a number of Appropriation Shares which is greater or lower than the number of Appropriation Shares, then, the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion. Provided further that, in the event the Exercise Notice/s contain/s in aggregate offers to purchase not the exact amount of the Appropriation Shares, the Facility Agent shall allow the Shareholders who have delivered valid Exercise Notice(s) 1 Business Day to cure the mistake by sending a further joint notice signed by all Shareholders that have delivered the Exercise Notice, stating the exact allocation of Appropriation Shares among Shareholders.

1.2.6 The Shareholders acknowledge that the Facility Agent shall:

(aa) verify that the Exercise Notices comply with Clauses 1.2.2 and 1.2.3 above,

(bb) proceed with the allocation of the Appropriation Shares to the Shareholders who have delivered a valid Exercise Notice (the “Exercising Shareholders”) as per the indication provided in the relevant Exercise Notices only if and to the extent the overall number of the Appropriation Shares indicated in the Exercise Notice(s) received is equal to the overall number of Appropriation Shares in accordance with the provisions of preceding Clause 1.2.5.

1.2.7 If the conditions under Clauses 1.2.5 and 1.2.6 above are satisfied, the Lenders shall appropriate the Appropriation Shares at a price per share equal to the Purchase Price under the Share Pledge Agreement on the 8th Business Days from the date of the Calculation Notice and shall then sell and transfer on the same day (the “Transfer Date”) all the Appropriation Shares to the Exercising Shareholders as per the indications received in the Exercise Notices, provided that the transfer of all Appropriation Shares shall occur simultaneously and be conditional upon (i) receipt of a legal opinion issued by reputable legal counsel (at the request of any Exercising Shareholder) confirming valid delivery of the Exercise Notice based on the Shareholders Agreement, validity and enforceability of the relevant transfer deed, no conflict with applicable law and capacity and authority of the Exercising Shareholder(s), and (ii) receipt in full of the Purchase Price multiplied by the number of the Appropriation Shares. If for any reason whatsoever (including for the avoidance of doubt, any order of authority, attachment, seizure or precautionary measure) appropriation under the Share Pledge Agreement or transfer to Exercising Shareholders cannot take place, then the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided however in such case that (a) should the relevant order of authority, attachment, seizure, precautionary measure consist in an impediment to enforce the pledge (and consequently appropriation and transfer of the Appropriation Shares under this Agreement) (i) should it be removed or cured within 60 days, then the Lenders shall remain bound to this Agreement and shall deliver to the Shareholders a new Enforcement Notice and a new Calculation Notice and each Shareholder shall be entitled to exercised its Right to Call by delivering its Exercise Notice in accordance with this Agreement, (ii) should it NOT be removed or cured

within 60 days, then the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any subsequent sale process of the Appropriation Shares; and (b) should the relevant order of authority, attachment, seizure, precautionary measure impede appropriation and/or transfer of the Appropriation Shares under this Agreement but NOT enforcement of the pledge through other means, then the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion but the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any subsequent sale process of the Appropriation Shares.

In the event an Exercising Shareholder is also a Lender and transfer of the Appropriation Shares is to occur in respect of all Exercising Shareholders in accordance with this Clause 1.2.7, then such Lender / Exercising Shareholder (a) shall only purchase a number of Appropriation Shares equal to the positive difference between (i) the number of Appropriation Shares for which it has delivered a valid Exercise Notice; and (ii) the number of Appropriation Shares corresponding to its quota in the Facility Agreement; or (b) shall only sell a number of Appropriation Shares equal to the positive difference between (i) the number of Appropriation Shares corresponding to its quota in the Facility Agreement; and (ii) the number of Appropriation Shares for which it has delivered a valid Exercise Notice.

1.2.8 If, as a result of the procedure set out in paragraphs 1.2.2 to 1.2.6 above, the Lenders have not received valid and effective Exercise Notices for all and no more or no less than the Appropriation Shares, the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion.

1.2.9 Any obligation assumed by a Shareholder under this Agreement or the Exercise Notice shall be assumed on a several basis (senza vincolo di solidarietà) with the other Shareholders. It remains understood and agreed that if on the Transfer Date any of Exercising Shareholder(s) does (do) not pay the purchase price pursuant to the relevant Exercise Notice, then the Lenders shall have no obligation to transfer Appropriation Shares to that or to any other Exercising Shareholder(s), the Exercise Notices shall be deemed ineffective, the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided that the Facility Agent shall allow the Shareholder(s) who have/has not paid the purchase price 1 Business Day to cure its default and shall allow the Shareholder(s) to purchase their corresponding Appropriation Shares, in which case all transfers of Appropriation Shares shall take place one Business Day after the intended Transfer Date and after full payment for all Appropriation Shares has been received in full. The Parties agree that any cost, taxes and expense of the transfer of Appropriation Shares to any Exercising Shareholders in accordance with this Agreement shall be borne by the Exercising Shareholders in proportion of the Appropriation Shares acquired by each of them.

1.2.10 The obligations assumed by the Lenders under this Agreement shall be assumed by each Lender severally from the other Lender (senza vincolo di solidarietà) in proportion to each respective loans and commitments under the New Banking Facility at the time of the Transfer Date.

1.2.11 For the avoidance of doubt any sale and purchase of Appropriation Shares made pursuant to this Agreement shall be deemed to be permitted under the Shareholders’ Agreement and each Shareholder commits to the other Shareholders to take any step and carry out all actions required to give full implementation to the rights and obligations set out in this Agreement.

1.2.12 The Parties agree that, for the sake of completeness, this Agreement shall be disclosed and made public in accordance to applicable laws.

1.2.13 Each Shareholder, to the maximum extent permitted by applicable laws and regulations and to the extent the Lenders and the Facility Agent have complied with their obligations under this Agreement, waives any and all rights, claims, objections and remedies it may have against the Facility Agent and the Lenders now or in the future in relation to the delivery and transfer of the Appropriation Shares pursuant to the Exercise Notices, the joint correction notice under Clause 1.2.5, the criteria and price on the basis of which the appropriation referred to in Clause 1.2.7 and the Purchase Price have or will be determined.

1.2.14 Each Exercising Shareholder, severally and not jointly and pro-quota in proportion to the percentage of the Appropriation Shares acquired, further undertakes to indemnify and keep harmless each Lender and the Facility Agent and their respective directors and employees (each an “Indemnified Party”), from any prejudices, expenses and damages or liabilities incurred or suffered as a result of an action or lawsuit or claim brought by Telco, any of the Shareholders and/or any third party in connection with the delivery and transfer of the Appropriation Shares pursuant to the Exercise Notices and the appropriation of the Appropriation Shares pursuant to Clause 1.2.7. To this purpose (i) the Indemnified Party shall deliver to the Exercising Shareholders notice of the relevant action, claim or lawsuit, specifying reasonable details thereto, (ii) before making any payment or settlement, the Indemnified Party shall consult in good faith with the Exercising Shareholders for at least 10 Business Days, including taking advice from reputable international legal counsel, provided that if the payment is to be made earlier than 10 Business Days the consultation period shall be shortened accordingly (iii) after the Indemnified Party having fulfilled its obligations under (i) and (ii) above, payment of the indemnity hereunder shall be made 1 Business Day prior to the date on which the relevant Indemnified Party declares that it is under an obligation to make a payment or post a collateral in favor of a third party, without raising any objection (solve et repete), (iv) the Indemnified Party shall keep informed the Exercising Shareholders of the relevant action, lawsuit or claim and will consult and cooperate in good faith with the relevant Exercising Shareholders in pursuing any legal defense, against said action, lawsuit or claim, and (v) after payment by the Exercising Shareholders the Indemnified Party shall return to the relevant Exercising Shareholders any money paid by such Exercising Shareholders and recovered by the Indemnified Party from the third party or released from a collateral.

The Parties agree that (x) the above provisions will only apply to any indemnification which has an overall aggregate amount not exceeding Euro 260 million, while (y) in the event of an indemnification for an overall aggregate amount exceeding Euro 260 million the above provisions (including the “solve and repete” principle) would still apply, but no payment shall be demanded by the Indemnified Party unless such Indemnified Party has received a judgment or order of an authority (even if not final and conclusive) ordering it to pay such third party claim or requiring it to post a collateral.

Without prejudice to the solve et repete provision set forth above, no indemnity shall be payable to an Indemnified Party under this Clause 1.2.14 in relation to prejudices, expenses and damages or liabilities incurred or suffered as a result of such Indemnified Party gross negligence or willful misconduct (dolo o colpa grave), provided for the sake of clarity that the solve et repete will only apply to the extent the legal advice under (ii) above has been obtained.

If an Exercising Shareholder who is under an obligation to indemnify pursuant to this Clause 1.2.14 is also an Indemnified Party, then its indemnity obligation as Exercising Shareholder will be extinguished by way of confusione (pursuant to Article 1253 of the Civil Code) for an amount equal to the amount that it is entitled to receive as Indemnified Party.

1.2.15 The Parties acknowledge and agree that obligations under this Agreement are undertaken by each Party also by way of alea, pursuant to article 1469 of the Italian Civil Code.

1.2.16 The Parties acknowledge and agree that in case of a transfer or assignment from an Existing Lender to a New Lender pursuant to and in accordance with Clause 26.2 (Assignments and transfer by Lenders) of the New Banking Facility Agreement, the transferring Lender shall procure that the New Lender assumes all rights and obligations of the transferring Lender under this Agreement, by executing a letter of accession to this Agreement concurrently with the assignment or transfer pursuant to the New Banking Facility Agreement. The Parties grant the consent to such assumption of rights and obligation by the New Lender pursuant to article 1406 of the Italian Civil Code, with release pursuant to Article 1408 of the Italian Civil Code of the transferring Lender with respect to the portion of obligations hereunder which is assigned or transferred.

1.2.17 All notices under this Agreement shall be sent by registered letter anticipated via fax and email at the following addresses:

To the Unicredit Corporate Banking S.p.A.

Filiale Multinational Nord

via Nizza 150

10122 Turin, Italy

Fax: 011 57138547 or 57138146

To the attention of: Mariagrazia Banini/Alessandro Pelle/Pierpaolo Cattaneo

E-mail: mariagrazia.banin@unicreditgroup.eu, alessandro.pelle@unicreditgroup.eu, anna.testa@unicreditgroup.eu, pierpaolo.cattaneo@unicreditgroup.eu

To Assicurazioni Generali:

Assicurazioni Generali S.p.A.

Piazza Duca degli Abruzzi n. 2

34132 Trieste, Italy

Fax: +39 040 671260

To the attention of: Mr. Giovanni Perissinotto and Mr. Oliviero Pessi

E-mail:	giovanni_perissinotto@generali.com and
	oliviero_pessi@generali.com

To Intesa:

Intesa Sanpaolo S.p.A.

Piazza Scala n. 6

20121 Milano, Italy

Fax: +39 02 879 43540

To the attention of: Mr. Gaetano Miccichè and Mr. Amedeo Nodari

E-mail:	gaetano.micciche@intesasanpaolo.com and
	amedeo.nodari@intesasanpaolo.com

To Mediobanca:

Mediobanca - Banca di Credito Finanziario S.p.A.

Piazzetta Cuccia n. 1

20121 Milano, Italy

Fax: +39 02 8829 943

To the attention of: Mr. Clemente Rebecchini and Mr. Francesco Coatti

E-mail:	mailto:clemente.rebecchini@mediobanca.it and
	francesco.coatti@mediobanca.it

To Telefonica:

Telefonica S.A.

C/Ronda de la Comunicacion, s/n, Distrito C, Edificio Central, Planta 1a

28050 Madrid, Spain

Fax: +34 91 727 1405 and +34 91 727 1400

To the attention of: Group General Counsel (Ramiro Sánchez de Lerín) and María Luz Medrano

E-mail:	secretaria.general@telefonica.es and
	mmedrano@telefonica.es

1.2.18 This Agreement shall be governed by, and interpreted in accordance with, the laws of the Republic of Italy. Any disputes arising out of or in connection with this Amendment Agreement shall be submitted by the Parties to arbitration. The venue of the arbitration shall be Milan. The arbitration shall be conducted in the English language and in accordance with ICC Rules.

* * * * *

INTESA SANPAOLO S.p.A. (in its quality as Lender)




MEDIOBANCA S.p.A. (in its quality as Lender)




UNICREDIT CORPORATE BANKING S.P.A.




SOCIÉTÉ GÉNÉRALE, Milan Branch




TELEFÓNICA, S.A.




ASSICURAZIONI GENERALI S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries)




INTESA SANPAOLO S.p.A. (in its quality as Shareholder)

MEDIOBANCA S.p.A. (in its quality as Shareholder)

EX-99.23 4 a10-2312_1ex99d23.htm EX-99.23

Exhibit 99.23

TELCO

PRESS RELEASE

Telco today executed a €1.3bn loan facility agreement with Intesa Sanpaolo, Mediobanca, Société Générale and Unicredito, which falls due on 31 May 2012 and is guaranteed by a pledge over part of the company’s Telecom Italia shares. Accordingly, in line with the commitments entered into by shareholders described in the press release issued on 22 December 2009, the amount of the bond issue to be subscribed to by all shareholders pro rata to their interests in Telco by 25 March 2010 will be €1.3bn.

Until the bond referred to above has been issued, Telco’s remaining financial requirements in connection with its debt falling due have been covered by a bridge loan granted by shareholders Telefonica, Intesa Sanpaolo and Mediobanca for approx. €0.9bn and by a bank bridge loan granted by Intesa Sanpaolo and Mediobanca for the remaining approx. €0.4bn.

Under the terms of the €1.3bn loan facility agreement, the lending banks have granted Telco’s shareholders a call option over the Telecom Italia shares that may become available to them as a result of a potential enforcement of the pledge. Exercise of this call option is governed by a separate amendment agreement to the existing agreement between shareholders.

Milan, 11 January 2010

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