UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D/A

 

Under the Securities Exchange Act of 1934
(Amendment No. 7)

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

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

 

(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)

 

 

 

 

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This Amendment No. 7 (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 connection with SI’s exit from Telco, Intesa Sanpaolo, Mediobanca, Generali and Telefónica (collectively, the “Existing Shareholders”) concluded the New Shareholders Agreement, amending and renewing the original Shareholders Agreement.  In addition, as previously described in Amendment No. 4 to Schedule 13D (filed on January 22, 2010, by Intesa Sanpaolo), Telco refinanced its existing financial indebtedness maturing in January 2010 through the New Refinancing Facility dated as of January 11, 2010 with the Senior Lenders.

 

As previously described in Amendment No. 5 to Schedule 13D (filed on March 12, 2012 by Intesa Sanpaolo), on February 29, 2012, the Existing Shareholders undertook to ensure the refinancing of Telco’s financial indebtedness through the most appropriate financing instruments in proportion to their respective shareholdings of Telco. A copy of the related Telco press release, dated February 29, 2012, was previously filed on Schedule 13D as Exhibit 27.  On May 31, 2012, the Existing Shareholders announced the completion of the refinancing transactions for Telco’s financial indebtedness maturing in 2012, as approved by Telco’s board of directors on May 3, 2012 (the “2012 Refinancing”).

 

As previously described in Amendment No. 6 to Schedule 13D (filed on June 14, 2012 by Intesa Sanpaolo), as part of the 2012 Refinancing, Telco (i) executed a capital increase of euro 600 million, entirely subscribed by all the Existing Shareholders on a pro rata basis (the “Capital Increase”), (ii) issued a euro 1.750 billion bond (the “2012 Bond”), entirely subscribed by all the Existing Shareholders on a pro rata basis, and (iii) entered into a euro 1.050 billion loan agreement (the “2012 Refinancing Facility”) with Société Générale, UniCredit Corporate Banking S.p.A., HSBC Bank plc, Intesa Sanpaolo and Mediobanca, as lenders (collectively, the “2012 Lenders”).  The 2012 Refinancing Facility matures on November 27, 2013 and is secured by a pledge (the “2012 Pledge”) in favor of the 2012 Lenders over 1,730,000,000 Telecom Shares held by Telco (the “2012 Pledged Shares”).

 

The funds received by Telco in connection with the 2012 Refinancing have been used to repay the January 2010 New Refinancing Facility, a euro 1.3 billion bond previously issued by Telco and subscribed for by the Existing Shareholders and were used to repay Telco’s remaining banking debt of euro 860 million which matured between June and October 2012.

 

In connection with the Capital Increase, the Existing Shareholders amended article 5 of Telco’s by-laws, previously filed on Schedule 13D as Exhibit 13.  An un-official translations of the amendments to article 5 of Telco’s by-laws was previously filed on Schedule 13D as Exhibit 28.

 

Pursuant to the terms of the 2012 Refinancing Facility, on May 31, 2012, the Existing Shareholders and the 2012 Lenders entered into an option agreement (the “2012 Pledged Shares Option Agreement”) pursuant to which the parties (i) terminated the prior Option Agreement entered into on January 11, 2010 and previously filed on Schedule 13D as Exhibit 22 and (ii) established the terms and conditions that would govern the Existing Shareholders’ option to acquire the 2012 Pledged Shares from the 2012 Lenders (the “2012 Call Option”) in the event that the 2012 Lenders acquire any of the 2012 Pledged Shares by enforcing the 2012 Pledge.  Copies of the 2012 Pledged Shares Option Agreement and the Telco press releases announcing the events described above, dated May 3, 2012 and May 31, 2012, were previously filed on Schedule 13D as Exhibit 29, Exhibit 30 and Exhibit 31, respectively.

 

3

 

On September 24, 2013, Telefónica, Generali (which term now also includes Generali Italia S.p.A., formerly known as INA Assitalia S.p.A.), Intesa Sanpaolo and Mediobanca entered into an agreement to amend the 2012 Shareholders Agreement for, among other things, the recapitalization and the refinancing of Telco (the “Shareholders Agreement Amendment”).

 

Pursuant to the Shareholders Agreement Amendment, the recapitalization and refinancing of Telco (the “Recapitalization”) will take place in two phases.  In the first phase (“Phase 1”), completed on September 24, 2013, Telefónica subscribed a euro 324 million share capital increase of Telco, paid in cash, which increased Telefónica’s ownership interest in Telco to 66% of the aggregate issued and outstanding share capital of Telco.  The Telco Class C shares issued to Telefónica in connection with the capital increase have no voting rights and, subject to certain conditions, are convertible from January 1, 2014 at Telefónica’s option into Class B voting shares up to an amount of Class B shares representing no more than 64% of Telco’s voting share capital.

 

Telco will use the proceeds deriving from the capital increase to partially repay the financial debt due in November 2013 pursuant to the 2012 Refinancing Facility.

 

Also on September 24, 2013 as part of Phase 1 of the Recapitalization, each of the Existing Shareholders entered into a sale and purchase agreement pursuant to which Telefónica purchased from Generali, Intesa Sanpaolo and Mediobanca, on a pro-quota basis, a portion of the 2012 Bond.  As a result, Telefónica owns 70% of the outstanding 2012 Bond, Generali 17%, Intesa Sanpaolo 6.5% and Mediobanca 6.5%, respectively.

 

The second phase of the Recapitalization (“Phase 2”) is expected to occur following Telefónica’s receipt of applicable regulatory and anti-trust approvals.  As part of Phase 2, Telefónica has undertaken in the Shareholders Agreement Amendment to subscribe a further euro 117 million capital increase of Telco, to be paid in cash, for additional Telco Class C non-voting shares, as a result of which Telefónica’s interest in Telco’s share capital will increase from 66% to 70% of the aggregate issued and outstanding share capital of Telco.  These additional Class C shares will also be convertible from January 1, 2014 at Telefónica’s option into Class B voting shares, subject to the limit of 64% of Telco’s voting share capital, described above.

 

Also starting from January 1, 2014, Telefónica has the right under the Shareholders Agreement Amendment (subject to certain conditions) to purchase, in cash, all Telco shares owned by each of Generali, Intesa Sanpaolo and Mediobanca.  In the event that such call option is exercised, Telefónica is required to purchase all 2012 Bonds owned by each of Generali, Intesa Sanpaolo and Mediobanca.  Furthermore, under the Shareholders Agreement Amendment, each of the Existing Shareholders retains the right to cause a demerger of Telco and obtain the direct beneficial ownership of their respective Telecom Italia Shares owned by Telco.  The demerger option is exercisable between June 15 and June 30, 2014 and then between February 1 and February 15, 2015.

 

Until the conversion, if any, of the Telco Class C non-voting shares held by Telefónica into Class B voting shares, the governance rights of the Existing Shareholders with respect to Telco and Telecom Italia will remain unchanged. If, as a consequence of such conversion, the interest of Telefónica in Telco exceeds 50% of the voting rights, the governance of Telco and Telecom Italia (including with respect to the nomination of the boards of directors) will be amended as provided in Article 3.3 of the Shareholders Agreement Amendment.

 

Finally, pursuant to the Shareholders Agreement Amendment, Telefónica agreed to a standstill pursuant to which Telefónica undertook not purchase additional shares in Telecom Italia, provided that the standstill will not be effective if any person or entity (whether acting alone or in concert with other entities and whether directly or

 

4

 

indirectly) acquires or announces its intention to acquire or undertakes to acquire 10% or more Telecom Italia voting shares or the right to acquire such shares.

 

To give effect to the Recapitalization and create the Telco Class C shares, the Telco shareholders amended Telco’s by-laws, previously filed on Schedule 13D as Exhibit 13 (as amended by the amendments previously filed on Schedule 13D as Exhibit 28).  An unofficial translation of the amended by-laws of Telco is filed as Exhibit 32 hereto, a copy of the Shareholders Agreement Amendment is filed as Exhibit 33 hereto and a copy of the joint press release related to the events described above, dated September 24, 2013, is filed as Exhibit 34 hereto.

 

Items 2, 5, 6 and 7 of Schedule 13D are hereby amended and supplemented to add the following:

 

Item 2.

Identity and Background

 

The names, citizenship, business addresses and principal occupations or employments of the executive officers and directors of Intesa Sanpaolo are set forth in Annex A, which is incorporated herein by reference.

 

During the last five years, neither Intesa Sanpaolo nor, to the best of Intesa Sanpaolo’s knowledge, any of the persons listed in Annex A, have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

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.

 

As a result of the Shareholders Agreement Amendment and the transactions contemplated thereby, Telco’s share capital (divided into Class A and Class B voting shares and Class C non-voting shares) is currently divided in the following manner:

 

·                  Generali, 19.32% (Generali retains 30.6% of Telco’s voting share capital in Class A Shares);

 

·                  Mediobanca, 7.34% (Mediobanca retains 11.6% of Telco’s voting share capital in Class A Shares);

 

·                  Intesa Sanpaolo, 7.34% (Intesa Sanpaolo retains 11.6% of Telco’s voting share capital in Class A Shares); and

 

·                  Telefónica 66.0% (Telefónica retains 46.2% of Telco’s voting share capital in Class B Shares).

 

5

 

In addition, Intesa Sanpaolo may be deemed to have sole power to vote or direct the vote of 35,435,541 Telecom Shares and sole power to dispose or direct the disposition of 23,537,372 Telecom Shares through its direct holdings and the holdings of various subsidiaries, representing approximately 0.26% and 0.18% 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 during the 60 days prior to the date of the event which required a filing on Schedule 13D.  To the best of Intesa Sanpaolo’s knowledge, the persons listed in Annex A have not effected any transactions in Telecom Shares during the 60 days prior to the date of the event which required a filing on Schedule 13D.

 

Item 6.

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

 

The description of the Shareholders Agreement Amendment and the transactions related thereto in the Introduction to this Amendment No. 7 is incorporated herein by reference.

 

Item 7.

Materials to be Filed as Exhibits

 

Exhibit 32:		Amended by-laws of Telco (unofficial English translation)
Exhibit 33:		Agreement dated September 24, 2013, 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., Generali Italia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca — Banca di Credito Finanziario S.p.A.
Exhibit 34:		Joint press release, dated September 24, 2013

 

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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:     October 7, 2013
	INTESA SANPAOLO S.p.A.
	By:	/s/ Amedeo Nodari
		Name:	Amedeo Nodari
		Title:	Head of Institutional Investments

 

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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 Jean-Paul Fitoussi 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
Gian Maria Gros-Pietro		Chairman		Professor		—
Marcello SALA		Senior Deputy Chairman of Management Board		—		—
Giovanni COSTA		Deputy Chairman of Management Board		—		4,243 (personally owned)
Carlo Messina		Managing Director and CEO		—		—
Carla Patrizia Ferrari		Member of Management Board		Executive		—
Piera Filippi		Member of Management Board		Attorney		—
Gaetano Miccichè		Member of Management Board		—		—
Francesco Micheli		Member of Management Board		—		—
Giuseppe Morbidelli		Member of Management Board		Professor		—
Bruno Picca		Member of Management Board		—		—
Giovanni Bazoli		Chairman of Supervisory Board		Professor		38,300 (personally owned) 22,634 (owned by spouse)
Mario Bertolissi		Deputy Chairman of Supervisory Board		Professor		—
Gianfranco Carbonato		Deputy Chairman of Supervisory Board		Entrepreneur		—
Gianluigi Baccolini		Member of Supervisory Board		Entrepreneur		—
Francesco Bianchi		Member of Supervisory Board		Consultant		—
Rosalba Casiraghi		Member of Supervisory Board		Consultant		—
Carlo Corradini		Member of Supervisory Board		Consultant		320,000 (personally owned)
Franco Dalla Sega		Member of Supervisory Board		Professor		—
Piergiuseppe Dolcini		Member of Supervisory Board		Lawyer		—
Jean-Paul Fitoussi		Member of Supervisory Board		Professor		—
Edoardo Gaffeo		Member of Supervisory Board		Professor		—
Pietro Garibaldi		Member of Supervisory Board		Professor		—
Rossella Locatelli		Member of Supervisory Board		Professor		—
Giulio Stefano Lubatti		Member of Supervisory Board		Consultant		—
Marco Mangiagalli		Member of Supervisory Board		Consultant		—
Iacopo Mazzei		Member of Supervisory Board		Entrepreneur		—
Beatrice Ramasco		Member of Supervisory Board		Chartered Accountant		—
Marcella Sarale		Member of Supervisory Board		Professor		—
Monica Schiraldi		Member of Supervisory Board		Consultant		—

 

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ANNEX B

 

TRANSACTIONS IN TELECOM ITALIA ORDINARY SHARES

 

The following describes transactions during the 60 days prior to the date of the 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 S.p.A.

353

12,242,546

0.61/0.47

559

10,769,462

0.61/0.47

 

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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 -

 

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		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 *
99.24		Amendment Agreement, dated December 10, 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. *
99.25		Second Renewal Agreement, dated February 29, 2012, 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. *
99.26		Amendment Deed to the Telefónica Option Agreement, dated February 29, 2012, between Telefónica and Telco *
99.27		Telco S.p.A. press release, dated February 12, 2012 *
99.28		Amendments to By-Laws of Telco (unofficial English translation) *
99.29		Option Agreement, dated May 31, 2012, 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. (in its capacity as shareholder) and Mediobanca — Banca di Credito Finanziario S.p.A. (in its capacity as shareholder) and UniCredit S.p.A., Société Générale, Milan Branch, HSBC Bank plc, ), Intesa Sanpaolo S.p.A. (in its capacity as lender) and Mediobanca — Banca di Credito Finanziario S.p.A. (in its capacity as lender). *
99.30		Telco S.p.A. press release, dated May 3, 2012 *
99.31		Telco S.p.A. press release, dated May 31, 2012 *
99.32		Amended by-laws of Telco (unofficial English translation)
99.33		Agreement dated September 24, 2013, 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., Generali Italia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca — Banca di Credito Finanziario S.p.A.
99.34		Joint press release, dated September 24, 2013

 

* Previously filed.

 

11

Exhibit 99.32

 

Execution copy

 

BY-LAWS

 

TITLE I

 

NAME — REGISTERED OFFICE — PURPOSE — DURATION

 

Article 1

 

(Name)

 

1.1 The name of the company shall be “Telco Società per Azioni” or, for the sake of brevity, “Telco S.p.A.” (hereinafter the “Company”).

 

Article 2

 

(Registered office)

 

2.1 The Company shall have its registered office in Milan.

 

2.2 Secondary offices, subsidiaries, branches, administrative and technical offices, representative offices, agencies and dependencies of all types, can be established, transferred, and abolished - in Italy and abroad - by resolution of the Board of Directors. Moreover, the transfer of the registered office of the Company within the territory of Italy can be decided by way of resolution of the Board of Directors.

 

2.3 The domicile of the shareholders, the directors, the statutory auditors and external auditors — for their relations with the Company — is that shown in the Company books.

 

Article 3

 

(Purpose)

 

3.1 The Company has for its purpose:

 

(a) The direct and indirect investment in, holding of, and disinvestment in shares, in Telecom Italia S.p.A. or in other companies operating in the telecommunications sector, solely for investment purposes and not vis-à-vis the public;

 

(b) the provision of services for the implementation and the management, without territorial limits, of licensed telecommunication services for public use and use in the free market, as well as corporate or administrative organizational services in the publishing, advertising, data processing, telecommunications and multimedia sectors for the benefit of it subsidiaries, excluding any activities reserved to directors and those persons enrolled in professional registers;

 

 

(c) any other transaction or activity instrumental — and not prevalent — to the foregoing activities, expressly excluding in any case the performance of any other financial activity vis-à-vis the public and the performance of qualified professional activities, the offering of securities to the public and the granting of consumer credit, including with regard to own shareholders, and in any event with the absolute exclusion of restricted activities pursuant to Laws 12/1979, 1966/1939, 1815/1939, and Legislative Decrees 385/1993 (article 106) and 58/1998.

 

Article 4

 

(Duration)

 

4.1 The term of the Company is fixed for a period ending on thirty-one (31) December two thousand and fifty (2050).

 

TITLE II

 

CAPITAL — SHARES — WITHDRAWAL — BONDS — FINANCING

 

Article 5

 

(Capital and Shares)

 

5.1 The share capital is equal to Euro 879,206,489.00 and is divided into 4,230,165,844 shares (hereinafter, the “Shares”), without any expressed nominal value, of which (i) 1,438,256,387 Shares belong to Class A (hereinafter “Class A Shares”), (ii) 1,234,128,374 Shares belong to Class B (hereinafter “Class B Shares”), and (iii) 1,557,781,083 Shares belong to Class C (hereinafter “Class C Shares”). Class A Shares and Class B Shares confer upon their holders equal economic and administrative rights, except as indicated in this article 5, and in articles 7, 8, 15, and 22 of the by-laws; Class C Shares confer upon their holders equal economic and administrative rights as Class A Shares and Class B Shares, except as indicated in this article 5 and in articles 7, 8, 15 and 22 of the by-laws.

 

5.1.1. As long as the limitations and restrictions of a regulatory nature applicable in Brazil continue to remain in force and applicable, the Class B Shares do not have the right to vote in relation to any matter to be resolved on by the shareholders’ meeting, connected to the activities carried out or to be carried out on the Brazilian telecom market by companies that are directly or indirectly controlled by Telecom Italia S.p.A.; and therefore the holders of Class B Shares do not have the right to participate in a shareholders’ meeting when any such matter is being discussed and voted.

 

2

 

For the purposes of these by-laws, “Telecom Operator” shall mean any company or person operating in the telecom sector and any company or person holding (a) a controlling stake in any non-listed company operating in the telecom sector or (b) a stake in a listed company operating in the telecom sector which exceeds 10% of the share capital or which, even though it is below 10% of the share capital, enables the holder to appoint one or more members of the board of directors of the listed companies.

 

For the purposes of these by-laws, “A Promoting Members” means the members who were assigned Class A Shares in the context of the transformation of the company into a joint-stock company approved by the shareholders’ meeting of 25 October 2007.

 

5.1.2. As long as the limitations and restrictions taken against the Argentine authorities are effective, holders of B Shares will not be entitled to vote with respect to any matter to be resolved on by the shareholders’ meeting, relating to the activities of companies directly or indirectly controlled by Telecom Italia S.p.A. and operating in the Argentine market, including Sofora Telecomunicaciones SA, Nortel Inversora SA., Telecom Argentina SA and Telecom Personal SA, and consequently the holders of B Shares will not be entitled to participate in meetings where such decisions are to be discussed and/or voted.

 

For the purposes of provisions of Article. 5.1.2 and Art. 16.4 “Activities in the Argentine market” means those activities that are carried out in Argentina in the sectors of telecommunications, Internet, data, radio, media and services substitute for those mentioned above in accordance with the Argentine antitrust regulations, at the same time (a) by holders of B Shares and/or companies directly or indirectly controlled by holders of B Shares and (b) by Telecom Italia S.p.A., Telecom Italia International N.V., Telecom Italia Sparkle S.p.A., Telecom Italia Sparkle Luxembourg S.A., Lan Med Nautilus Ltd., Latin American Nautilus Argentina S.A., Sofora Telecomunicaciones S.A., Nortel Inversora S.A., Telecom Argentina SA S.A. and Telecom Personal.

 

5.1.3. Class C Shares are non-voting shares and have the right to be converted into Class B Shares upon simple request of the holder(s) of Class C Shares, in one or more slots, it being understood that the conversion right will be one Class B Share for each Class C Share to be converted and that the share capital of the Company will not be increased.

 

The right to convert Class C Shares will be exercisable starting from 1 January 2014, at the terms and conditions below.

 

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The holder of Class C Shares who intends to convert its Class C Shares shall disclose its intention to convert by means of a registered letter with return receipt addressed to the Board of Directors, indicating the number of Class C Shares it intends to convert.

 

Within 15 days from the request of the holder(s) of Class C Shares, the board of directors of the Company, by means of a resolution to be passed at the presence of a Notary, shall execute be delegated to acknowledge the issuance of the new Class B Shares resulting from the conversion and the cancellation of the Class C Shares to be converted and will perform all the fulfilments related to any such resolution, including any amendments to the Company’s by-laws as to the number of shares, also for the purposes of the filing with the Companies’ Register.

 

5.2 The share capital may also be increased by contribution of credits and contribution in kind, pursuant to article 2440 of the Italian Civil Code.

 

5.3 In the event of an increase of capital, with or without consideration, without excluding option rights and which contemplates issue of Class A Shares, Class B Shares and Class C Shares in proportion to the ratio of outstanding Class A Shares to Class B Shares and Class C Shares, the shareholders who hold Class A Shares shall have the right to receive and subscribe Class A Shares, the shareholders who hold Class B Shares shall have the right to receive and subscribe for Class B Shares and the shareholders who hold Class C Shares shall have the right to receive and subscribe for Class C Shares. In the event that any holders of Class A Shares have not fully exercised their option right, the other holders of Class A Shares shall have a pre-emption right on the unopted-for Class A Shares. In the same manner, in the event that any shareholders of Class B Shares have not fully exercised their option right, the other shareholders holding Class B Shares shall have a pre-emption right on the unopted-for Class B Shares. In the same manner, in the event that any shareholders of Class C Shares have not fully exercised their option right, the other shareholders holding Class C Shares shall have a pre-emption right on the unopted-for Class C Shares.

 

If, following exercise by the holders of Class A Shares of the option and pre-emption right, Class A Shares remain unsubscribed, these may be subscribed, in accordance with the procedure for exercise of the option and pre-emption by the holders of Class B Shares in proportion to their own holding of the total number of Class B Shares issued by the Company, with simultaneous automatic conversion of the Class A Shares based on the conversion rate of one newly-issued B Share (having the same features as the Class B Shares outstanding) for every A Share that is being subscribed. If, following

 

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exercise by the holders of Class B Shares of the option and pre-emption right, any Class B Shares remain unsubscribed, these may be subscribed, in accordance with the procedure to exercise the option and pre-emption by the holders of Class A Shares in proportion to their own holding of the total number of Class A Shares issued by the Company, with simultaneous automatic conversion of the Class B Shares based on the conversion rate of one newly-issued A Share (having the same features as the Class A Shares outstanding) for every B Share that is being subscribed. If, following exercise by the holders of Class C Shares of the option and pre-emption right, any Class C Shares remain unsubscribed, these may be subscribed, in accordance with the procedure to exercise the option and pre-emption by the holders of Class B Shares (and, if not subscribed by the holders of Class B Shares, by the holders of Class A Shares) in proportion to their own holding of the total number of Class B Shares or Class A Shares (as the case may be).

 

5.4 In application of the previous Article 5.3, increases to capital that are not fully subscribed by holders of Class A Shares, holders of Class B Shares and holders of Class C Shares following exercise of their respective option and pre-emption rights, shall be deemed, in accordance with the resolution to increase capital, subscribed in the amount effectively subscribed.

 

5.5 The Shares are represented by share certificates.

 

5.6 The Shares are registered; their conversion into bearer shares is not allowed.

 

Article 6

 

(Withdrawal)

 

Shareholders who have not participated in the following decisions shall not have a right of withdrawal:

 

·                  the extension of the term of the Company’s duration, and

 

·                  the introduction or removal of restrictions on the circulation of shares.

 

Article 7

 

(Transfer of Shares)

 

7.1 Within the limits provided by this Article 7 and by Article 8, the Shares are transferable to shareholders and to third parties, whether by inter vivos or testamentary deed.

 

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The provisions of this Article 7 and of Article 8 apply not only to the transfer of Shares, but also to the transfer of any right whatsoever relating to them, including, by way of example, (i) all shares or potential financial instruments of the Company (including those provided for in article 2346 of the Italian Civil Code) having voting rights or convertible into shares having voting rights, (ii) all bonds or other securities or other financial instruments convertible into, exchangeable with, or conferring to the relevant owner the right to subscription to or acquisition of shares, securities or financial instruments with voting rights of the Company, as well as shares originating from the conversion or the exercise of the above mentioned rights, (iii) any other right, security, and/or financial instrument (including option rights and/or warrants and/or equity swaps) that gives a right to the acquisition of and/or subscription to shares and/or financial instruments and/or bonds convertible into/exchangeable with, shares or financial instruments having voting rights or convertible into shares having voting rights in the Company, and/or the shares and/or financial instruments acquired on the basis of their exercise. In addition, the provisions of this Article 7 and Article 8 regard not only the transfer of full ownership of the Shares and the rights relating thereto, but also the transfer of the bare ownership and whatsoever real rights of enjoyment, exclusive of the real rights of guarantee.

 

For the purposes of this Article 7 and Article 8, act of transfer means any transfer by deed inter vivos, in whatever manner (such as, as a mere example, sale, swap, contango, fiduciary transfer, and the modification of the entitlement to the relationship underlying a possible fiduciary relationship, the conferring or borrowing of titles, or rather title deeds, gratis or out of generosity, amalgamation, splitting) which results in, directly or indirectly, in whole or part, including in a transitory manner, the ownership or availability of the Shares and any rights, interests, including of a non-property nature, deriving from or connected to ownership of the Shares.

 

For the purposes of this Article 7, “Italian Qualified Investors” shall mean any company or person, other than a Telecom Operator, which is a reputable qualified Italian institutional or private investor previously accepted in writing by the holders of Class B shares, provided that simultaneously with the acquisition of any Shares in the Company shall adhere to any agreement executed by the other shareholders of the Company in relation to the Shares of the Company to be transferred. The provisions of this Article 7 and Article 8 do not apply to transfers in favour of wholly-owned parent or subsidiary companies in accordance with section 2359 (1)(1) of the Italian Civil

 

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Code, or partial non—proportional de-mergers of the Company, mergers by absorption of wholly-owned companies, and mergers between wholly-owned parent or subsidiary companies in accordance with section 2359(1)(1) of the Italian Civil Code by the same shareholder, provided that the transfer is subject to the condition subsequent of a change in control of the above-mentioned companies. If the condition subsequent occurs, the Shares shall be deemed not transferred and shall be returned to the Shareholder Transferring Class A Shares or the original Shareholder Transferring Class B Shares (as defined below) as applicable.

 

To the extent the exercise of the redemption rights of each shareholder in accordance with Article 28 of the By-Laws and the other rights provided for in these By-Laws are not prejudiced by the above, the provisions of this Article 7 and Article 8 shall also not apply to transfers made pursuant to derivative or securities lending transactions pursuant to which the original Shareholder Transferring Class A Shares (whether a bank, financial or insurance company), as applicable, (i) repurchases the full ownership of the Shares upon the expiry of the above-mentioned transactions and, in any case (ii) maintains medio tempore the administrative and economic rights pertaining to the Shares underlying the derivative transaction or subject to securities lending. Otherwise, the provisions of this Article 7 and Article 8 shall be immediately applicable.

 

The provisions of this Article 7 shall not apply also to transfers of Shares A as a result of the exercise of the call option provided for by article 5 of the agreement entered into by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and in the name and on behalf of Alleanza Toro S.p.A., Generali Italia S.p.A., Generali Lebenversicherung A.G. and Generali Vie S.A.), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. on 24 September 2013.

 

7.2 The shareholder who intends to transfer Class A shares (hereinafter the “Shareholder Transferring Class A shares”) to an acquiring third party, including a shareholder of the Company (hereinafter, a “Person Bidding for Class A shares”) must offer them in advance on equal terms to the other shareholders who hold Class A Shares, and subsequently, upon occurrence of the prerequisites at point (ii) below, to the holders of Class B Shares. The holders of Class A Shares may acquire the Class A Shares offered exercising their pre-emption rights in proportion to the number of Class A Shares possessed by each of them compared with the total number of Class A Shares issued by the Company; the holders of Class B Shares may purchase the Shares offered to them exercising their pre-emption rights in accordance with the provisions at point

 

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(ii) below and in proportion to the number of Class B Shares possessed by each of them compared with the total number of Class B Shares issued by the Company; the above must take place in accordance with the following procedure (hereinafter the “Right of Pre-emption”):

 

(i) the Shareholder Transferring Class A Shares must transmit a communication, by registered letter with return receipt to the Chairman of the Board of Directors and to the other shareholders holding Class A Shares, specifying the number of Class A Shares, the price, and the other economic and contractual conditions of the transfer and the personal particulars of the Person Bidding for Class A Shares (the “Pre-emption Notice”). Within 30 days of the date of receipt of the Pre-emption Notice (the “Exercise Period”), the shareholders holding Class A Shares who intend to avail themselves of the Right of Pre-emption must give the appropriate written communication to the Chairman of the Board of Directors and to the Shareholder Transferring Class A Shares (the “Notice of Acceptance”). The holders of Class A Shares who exercise the Right of Pre-emption, provided that they make a contextual request in the Notice of Acceptance, shall have a pre-emption right (hereinafter, the “Right of Increase”) for the Class A Shares remaining on sale at the time all of the Notices of Acceptance have been received (“Remaining Class A Shares”). The Notice of Acceptance shall specify the number of Remaining Class A Shares in relation to which the holder of Class A Shares intends to exercise the Right of Increase. The Remaining Class A Shares shall be divided among the shareholders who have exercised the Right of Increase in proportion to the number of Class A Shares held by each of them. It is understood that following exercise of the above-mentioned rights each holders of Class A Shares may not acquire a number of Class A Shares to exceed the total specified in the Notice of Acceptance;

 

(ii) if after the carrying out of the procedure in the preceding point (i) there are still Remaining Class A Shares, each holder of Class A shares other than the Shareholder Transferring Class A Shares shall be entitled to procure, within 30 days following expiry of the Exercise Period (the “Further Period”), the purchase of the Remaining Class A Shares by one or more Qualified Italian Investors, it being understood in any case that such right shall not be exercisable in the event (aa) the Offeror of Class A Shares is a Telecom Operator and (bb) as a result of the transfer of the Class A Shares, the total percentage of share capital of the Company held by the A Promoting Members falls below 35% of the share capital, it being understood that the loss of the above-

 

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mentioned right shall be limited to the portion of Shares transferred which determined the holding to fall below 35% of the share capital.

 

If, upon expiry of the Further Period, there are still Remaining Class A Shares or if the Qualified Italian Investor is not entitled to purchase Class A Shares in accordance with the above, these Remaining Class A Shares shall be offered without delay to the holders of Class B Shares by notice in accordance with the procedure at paragraph (i) above of this Article 7.2. The Remaining Class A Shares purchased by the holders of Class B Shares shall be divided among the holders of Class B Shares who exercised the pre-emption right, in proportion to the number of Class B Share held by each of them and provided that the Right of Increase provided at paragraph 7.2(i) above is applied mutatis mutandis, subject to the automatic conversion of the aforesaid Class A Shares subject to pre-emption at the rate of one newly-issued Class B Share (having the same characteristics as the Class B Shares in circulation) for each Class A Share subject to pre-emption.

 

The exercise of the Right of Pre-emption by the holders of Class B Shares, if exercised in accordance with this Article 7.2(ii), must be carried out within 15 days of the receipt of the notice of a pre-emption right offer, by means of an appropriate written notice to the Chairman of the Board of Directors and the Shareholder Transferring Class A Shares, specifying the number of Shares requested in pre-emption. The conversion of Class A Shares to Class B Shares takes effect, as long as the events at paragraph 7.2(iv) below have not occurred, by resolution of the Board of Directors (which for this purpose must be convened within 5 days of the expiry of the exercise period of the Right of Pre-emption specified in the present Article 7.2(ii)), which shall fulfil all of the necessary formalities for the issue of Class B Shares and up-date the By-Laws as required, to the extent of its powers.

 

(iii) If Class A Shares remain offered but not purchased by shareholders of the Company or by Qualified Italian Investors in accordance with the above (the “Unsold Class A Shares”) and the Person Bidding for Class A Shares agrees to purchase the Unsold Class A Shares in accordance with this paragraph 7.2(iii), the Unsold Class A Shares may be transferred by the Shareholder Transferring Class A Shares to the Person Bidding for Class A Shares, within but not later than 15 days. If the transfer in favour of the Person Bidding for Class A Shares has not occurred within the aforesaid term, any later transfer of Class A Shares and of the rights related thereto shall be subjected anew to the procedure specified in the present Article 7.2. Any transfer carried out in violation

 

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of the provisions of this Article 7.2 shall be invalid and unenforceable against the Company.

 

(iv) If Unsold Class A Shares remain and the Person Bidding for Class A Shares does not agree to only purchase, in accordance with paragraph 7.2(iii) above, the Unsold Class A Shares, the Shareholder Transferring Class A Shares shall be entitled to sell all of the Class A Shares offered in the Notice of Pre-emption to the Person Bidding for Class A Shares.

 

7.3 The shareholder who intends to transfer Class B Shares (hereinafter, the “Shareholder Transferring Class B Shares”) to a potential third-party purchaser, which may be a shareholder of the Company (“Person Bidding for Class B Shares”) must offer these shares in advance to all the other shareholders holding Class A and Class B Shares with regard to the following procedure:

 

(i) the Shareholder Transferring Class B Shares must transmit a communication, by registered letter with return receipt to the Chairman of the Board of Directors and other shareholders, specifying the number of Class B Shares, the price, and the other financial and contractual conditions of the transfer and the details of the Person Bidding for Class B Shares (the “Notice of pre-emption of Class B Shares”). Within 30 days of the date of receipt of the notice, the shareholders who intend to exercise the Right of Pre-emption must give the appropriate written communication to the Chairman of the Board of Directors and the Shareholder Transferring Class B Shares specifying the number of Shares requested to be purchased;

 

(ii) (a) if the offer is accepted in its entirety by the shareholders, the Class B Shares being offered shall be divided among the aforesaid shareholders, in proportion to the number of shares held by each of them compared to the total number of shares (of Class A and Class B) issued by the Company; (b) if the offer is accepted only in part by the shareholders, the Class B Shares offered and purchased shall be divided among these shareholders in proportion to the number of shares held by each compared to the total number of shares (Class A and Class B) issued by the Company. The Class B Shares that are purchased by the A shareholders pursuant to Article 7.3 shall be transferred to the same in accordance with this Article 7.3 and in any case following automatic conversion of the Class B Shares subject to pre-emption by the holders of Class A shares at the conversion rate of one newly-issued A Share (having the same features as the Class A Shares outstanding) for each B Share subject to pre-emption. The

 

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conversion of Class B Shares into Class A Shares shall take place in accordance with the procedure set out at Article 7.2(ii) second and third paragraphs above.

 

(iii) If Class B Shares remain offered but not purchased by shareholders of the Company in accordance with the above (the “Unsold Class B Shares”) and the Person Bidding for Class B Shares agrees to purchase the Unsold Class B Shares, the Unsold Class B Shares may be transferred by the Shareholder Transferring Class B Shares to the Person Bidding for Class B Shares, within but not later than 15 days. If the transfer in favour of the Person Bidding for Class B Shares has not occurred within the aforesaid term, any later transfer of Class B Shares and of the rights related thereto shall be subjected anew to the procedure specified in this Article 7.3. Any transfer carried out in violation of the provisions of this Article 7.3 shall be invalid and not enforceable against the Company.

 

(iv) If Unsold Class B Shares remain and the Person Bidding for Class B Shares does not agree to only purchase in accordance with paragraph 7.3(iii) above the Unsold Class B Shares, the Shareholder Transferring Class B Shares shall be entitled to sell all of the Class B Shares offered in the Notice of Pre-emption to the Person Bidding for Class B Shares.

 

7.4 The shareholder who intends to transfer Class C Shares (hereinafter the “Shareholder Transferring Class C Shares”) to an acquiring third party, including a shareholder of the Company (hereinafter, a “Person Bidding for Class C Shares”) must offer them in advance on equal terms to the other shareholders who hold Class C Shares, and subsequently, upon occurrence of the prerequisites respectively at points (ii) and (iii) below, to the holders of Class B Shares and Class A Shares. The holders of Class C Shares may acquire the Class C Shares offered exercising their Right of Pre-emption in proportion to the number of Class C Shares possessed by each of them compared with the total number of Class C Shares issued by the Company; the holders of Class B Shares may purchase the Class C Shares offered to them exercising their Right of Pre-emption in accordance with the provisions at point (ii) below and in proportion to the number of Class B Shares possessed by each of them compared with the total number of Class B Shares issued by the Company; the holders of Class A Shares may purchase the Class C Shares offered to them exercising their Right of Pre-emption in accordance with the provisions at point (iii) below and in proportion to the number of Class A Shares possessed by each of them compared with the total number of Class A Shares issued by the Company; the above must take place in accordance with the following procedure:

 

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(i) the Shareholder Transferring Class C Shares must transmit a pre-emption notice to the Chairman of the Board of Directors and to the other shareholders holding Class C Shares, specifying the number of Class C Shares, the price, and the other economic and contractual conditions of the transfer and the personal particulars of the Person Bidding for Class C Shares (the “Notice of pre-emption of Class C Shares”). Within 30 days of the date of receipt of the Notice of pre-emption of Class C Shares, the shareholders holding Class C Shares who intend to avail themselves of the Right of Pre-emption must give the appropriate written communication to the Chairman of the Board of Directors and to the Shareholder Transferring Class C Shares (the “Notice of Acceptance of Class C Shares”). The holders of Class C Shares who exercise the Right of Pre-emption, provided that they make a contextual request in the Notice of Acceptance of Class C Shares, shall have a pre-emption right (hereinafter, the “Right of Increase of Class C Shares”) for the Class C Shares remaining on sale at the time all of the Notices of Acceptance of Class C Shares have been received (the “Remaining Class C Shares”). The Notice of Acceptance of Class C Shares shall specify the number of Remaining Class C Shares in relation to which the holder of Class C Shares intends to exercise the Right of Increase of Class C Shares. The Remaining Class C Shares shall be divided among the shareholders who have exercised the Right of Increase of Class C Shares in proportion to the number of Class C Shares held by each of them. It is understood that following exercise of the above-mentioned rights each holders of Class C Shares may not acquire a number of Class C Shares to exceed the total specified in the Notice of Acceptance of Class C Shares;

 

(ii) if after carrying out of the procedure in the preceding point (i) there are still Remaining Class C Shares, the Remaining Class C Shares shall be offered without delay to the holders of Class B Shares by notice in accordance with the procedure at paragraph (i) above of this Article 7.4. The Remaining Class C Shares purchased by the holders of Class B Shares shall be divided among the holders of Class B Shares who exercised the Right of Pre-emption, in proportion to the number of Class B Share held by each of them and provided that the Right of Increase of Class C Shares provided at paragraph 7.4(i) above is applied mutatis mutandis.

 

(iii) if after carrying out of the procedure in the preceding point (ii) there are still Remaining Class C Shares, the Remaining Class C Shares shall be offered without delay to the holders of Class A Shares by notice in accordance with the procedure at paragraph (i) above of this Article 7.4. The Remaining Class C Shares purchased by the

 

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holders of Class A Shares shall be divided among the holders of Class A Shares who exercised the Right of Pre-emption, in proportion to the number of Class A Share held by each of them and provided that the Right of Increase of Class C Shares provided at paragraph 7.4(i) above is applied mutatis mutandis.

 

The exercise of the Right of Pre-emption by the holders of Class B Shares and Class A Shares, if exercised in accordance with respectively Articles 7.4 (ii) and 7.4 (iii), must be carried out within 15 days of the receipt of the notice of a pre-emption right offer, by means of an appropriate written notice to the Chairman of the Board of Directors and the Shareholder Transferring Class C Shares, specifying the number of Class C Shares requested in pre-emption.

 

(iv) If Class C Shares remain offered but not purchased by shareholders of the Company in accordance with the above (the “Unsold Class C Shares”) and the Person Bidding for Class C Shares agrees to purchase the Unsold Class C Shares in accordance with this paragraph 7.4(iv), the Unsold Class C Shares may be transferred by the Shareholder Transferring Class C Shares to the Person Bidding for Class C Shares, within but not later than 15 days. If the transfer in favour of the Person Bidding for Class C Shares has not occurred within the aforesaid term, any later transfer of Class C Shares and of the rights related thereto shall be subjected a new to the procedure specified in the present Article 7.4. Any transfer carried out in violation of the provisions of this Article 7.4 shall be invalid and unenforceable against the Company.

 

(v) If Unsold Class C Shares remain and the Person Bidding for Class C Shares does not agree to only purchase, in accordance with paragraph 7.4(iv) above, the Unsold Class C Shares, the Shareholder Transferring Class C Shares shall be entitled to sell all of the Class C Shares offered in the Notice of Pre-emption of Class C Shares to the Person Bidding for Class C Shares.

 

7.5 In the event that the transfer of shares does not provide for consideration, or if it does not provide that such consideration consist entirely of cash (for example, in the event of donation, swap, or transfer by way of contribution, merger, de-merger) the price at which the shareholders of the Company shall be able to acquire the shares offered pursuant to their pre-emption rights shall be determined by mutual agreement of the shareholder who intends to transfer and the shareholder (or shareholders) who have exercised the pre-emption (the “Interested Shareholders”). If the Interested Shareholders have not reached an agreement within 30 working days, starting on the date the shareholder who intends to transfer has received the communication of the

 

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shareholders who intend to exercise the Right of Pre-emption, the price for each share shall be determined based on the adjusted shareholders’ equity considering the price of the shares held in Telecom Italia S.p.A. (“TI”) based on the respective arithmetic average of the official stock exchange prices within 30 days preceding the date of the offer in pre-emption and, in case of dispute, the calculation, to be carried out on the basis of the criteria indicated above, shall be remitted to an expert appointed by the President of the Court of Milan, upon application by the most diligent shareholder.

 

7.6 All transfers pursuant to this Article 7 are subject to the applicable antitrust provisions and/or law, and shall in any case take place within 10 days from the date the relevant Antitrust and/or legal authorisations are obtained, if required, and in any event, within 6 months from the execution of a binding agreement regarding the transfer of Shares.

 

7.7 Transfers made in violation of the provisions of this Article 7 and the following Article 8 shall be invalid and unenforceable against the Company.

 

Article 8

 

(Right of Co-Sale (Tag-Along))

 

8.1 Without prejudice to the provisions in the foregoing Article 7, in the event that one or more shareholders (hereinafter called jointly the “Relevant Shareholder”) (i) intend(s) to transfer, in one or more stages, a number of shares that represent at least 30% of the Company’s share capital (the “Relevant Stake”) to a potential third-party purchaser or at one or more potential purchasers belonging to the same group, connected by a relationship of control or affiliates within the meaning of article 2359 of the Italian Civil Code, or who in any case act in concert between them pursuant to article 109 of the Consolidated Finance Law, for the purchase of the Relevant Stake, and (ii) upon expiry of the exercise period none of the other shareholders have exercised the Right of Pre-emption, or, notwithstanding the exercise of the Right of Pre-emption by one or more of the other shareholders, a bid by the third party is still pending for an interest equal to at least the Relevant Stake, the shareholder (or shareholders) who did not exercise the Right of Pre-emption (hereinafter the “Non-Opting Shareholder”) shall have the right to transfer to the potential third-party purchaser its own shares (the “Right of Co-Sale” or “Tag-Along Right”) at the same terms and conditions offered to the Relevant Shareholder pursuant to this Article 8. If the transfer by the Relevant Shareholder does not constitute the entire stake held by it, but rather is only part of the

 

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Shares held by the Relevant Shareholder, the Non-Opting Shareholder shall be entitled to a Tag-Along right in the same proportion as the number of Shares to be transferred and the total Shares held by the Significant Shareholder.

 

8.2 If the Non-Opting Shareholder intends to exercise the Tag-Along Right, it must, under penalty of forfeiture, send written communication the Relevant Shareholder — with a copy to the Company — by the means and under the terms provided for the exercise of the Right of Pre-emption in the foregoing Article 7. Once the express request has been made by the Non-Opting Shareholder to exercise the Tag-Along Right (hereinafter the “Proposal of Sale”), the aforesaid Non-Opting Shareholder shall be obliged to sell all, or the different percentage established above, of his own Shares, free from any restriction, encumbrance or third-party right, to the potential third-party purchaser, in accordance with the following procedure;

 

(i) The Relevant Shareholder must, as a condition for the efficacy of the transfer of its own Shares, procure that the potential third-party purchaser (a) accepts unconditionally the Proposal of Sale mentioned in this paragraph 8.2, having as its object the sale of all (or the different percentage established above) the Shares owned by each Non-Opting Shareholder who made the Proposal of Sale, without the potential third-party purchaser being able to require with regard thereto any representation and/or warranty, with the exception of the warranties pertaining to (ai) the good title to the Shares owned by the Non-Opting Shareholder and the capacity to freely dispose of them, and (aii) the fact that the shares are free from any restriction, encumbrance or third-party right; and (b) acquires all (or the different percentage established above) the Shares owned by the Non-Opting Shareholder who made the Proposal of Sale;

 

(ii) The transfer of the Shares by the Relevant Shareholder and the other Non-Opting Shareholders must occur at the same time, with concurrent payment of the price within, and not later than, 15 days of the date of receipt of the Proposal of Sale by the Relevant Shareholder;

 

(iii) If no shareholder has exercised the Right of Pre-emption pursuant to Article 7 nor the Tag-Along right pursuant to this article, the Relevant Shareholder may transfer the shares owned by it to a potential third-party purchaser on condition that (a) the transfer occurs under the same conditions indicated in its communication to the other shareholders, including the same price and (b) the transfer shall occur within 15 days of the expiry of the different exercise period mentioned in Article 7 above; it is understood that the aforesaid term shall be reasonably extended, as provided below, if the transfer

 

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of the shares is subject to obligations of communication in advance or authorization by an authority; it is understood that the aforesaid term of 15 days be considered respected if within the appropriate deadline the Relevant Shareholder has perfected with the potential third-party purchaser a purchase and sale contract with deferred efficacy (but not more than 6 months) or conditional exclusively upon the obtaining of the authorizations required by law or regulations (provided that such agreement terminates if such authorisation is not obtained within the six months subsequent to the date such sale purchase agreement is perfected), at a price per Share and, in general, on terms and conditions equivalent to those indicated by the potential third party purchaser in its own bid. If the transfer to the potential third party purchaser has not taken place in conformity with what is indicated in this paragraph and in the terms provided here, the Relevant Shareholder shall not be able to transfer its Shares except in accordance with the procedures discussed in Articles 7 and 8 and the transfer shall be invalid and unenforceable against the Company.

 

Article 9

 

(Bonds and Financing)

 

9.1 The Company may issue convertible and non-convertible bonds, the Company may accept loans from its shareholders, interest or interest-free, with or without a reimbursement obligation, in compliance with the applicable laws and regulations and the By-Laws.

 

SECTION III

 

SHAREHOLDERS’ MEETING

 

Article 10

 

(Ordinary Shareholders’ Meeting’s Activities)

 

10.1 The ordinary shareholders’ meeting shall decide upon matters reserved to it by law. Furthermore, the ordinary shareholders’ meeting authorises, within the meaning of article 2364 (1)(5) of the Italian Civil Code, subject to the responsibilities of the Board of Directors, (i) with the majority provided in the following article 12(3)(1), the carrying out by the Company of the activities discussed in article 3.1(b) and (ii) acceptance by the Company of any tender offers regarding shareholdings in TI provided that in such a case the efficacy of the authorization resolved by the meeting is subject to the condition precedent of the failed exercise of the Redemption discussed in the

 

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following Article 28.2 potentially carried out — with respect to the prerequisites and procedure discussed in the following Article 28.2 — by the shareholders authorised to do so, provided that if the said Redemption is exercised, the aforesaid resolution of the meeting is intended to be definitively revoked at the moment of the transfer of the Shares subject to Redemption and the TI shares directly or indirectly held by the Company shall be rendered unavailable within the meaning of the following Article 28.2(iii).

 

Article 11

 

(Convocation)

 

11.1 The shareholders’ meeting may also be convened in a place other the registered office, provided that it is held in Milan.

 

11.2 The meeting may be convened, subject to resolution of the Board of Directors, by the Chairman of the Board of Directors at least eight days prior to the date fixed for the meeting by:

 

(i) a letter or telegram sent to all the shareholders entered in the shareholders’ register, to the directors and statutory auditors by postal service or an equivalent; with notice of receipt; or, in the alternative,

 

(ii) a fax or e-mail message sent and received by all the persons indicated above, who must, within the date established for the meeting, confirm in writing, also using the same means, receipt of the notice, specifying the date of receipt whenever the delivery means used do not provide for notification — even electronic — of receipt by the addressee.

 

11.3 In the notice of convocation a second meeting may be set for another day, if the preceding meeting was not legally constituted.

 

11.4 In the absence of formal convocation, the meeting is regularly constituted when the entire voting share capital of the Company is represented and the majority of the members of the Board of Directors and of the members of the Board of Statutory Auditors are in attendance; in that case, each of the participants may object to the discussion of issues for which it does not deem to be sufficiently informed.

 

11.5 Except as provided by the last paragraph of article 2367 of the Italian Civil Code, the Board of Directors must convene the Meeting without delay when a request is made by shareholders representing at least one tenth of the share capital of the Company and the issues to be discussed are set out in the request.

 

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11.6 The ordinary shareholders’ meeting must be convened by the Board of Directors at least once a year, within one hundred and twenty days of the close of the Company’s fiscal year; the Meeting may be convened within one hundred and eighty days of the close of the Company’s fiscal year should the Company be required to prepare consolidated financial statements or if specific requirements in connection with the organisation structure and purpose of the Company require.

 

Article 12

 

(Resolutions)

 

12.1 Without prejudice to the provisions of Paragraph 12.3 below, the Ordinary Shareholders’ Meeting — in first call — is regularly constituted with the participation of shareholders representing at least half of the voting share capital and - in second call - is regularly constituted with the participation of shareholders representing at least one fifth of the voting share capital, except for the approval of the financial statements and the appointment and removal of corporate officers, for which it is regularly constituted whatever the portion of the share capital is represented.

 

12.2 Without prejudice to the provisions of Paragraph 12.3 below, the Ordinary Shareholders’ Meeting — in first and second convocation — resolves with the vote of the absolute majority of the capital present.

 

12.3 The Meeting convened to resolve on the authorization of activities or operations in pursuit of the corporate purposes indicated in Article 3, paragraph 3.1(b) of the By-laws is validly constituted and decides by the vote of such shareholders as represent at least 95% of the voting share capital.

 

The ordinary Meeting convened to resolve on the distribution of dividends is validly constituted and decides by the vote of shareholders representing at least 65% of the voting share capital, provided that if one or more shareholders who, alone or in the aggregate, represent more than 30% of the Company’s voting share capital, should be absent or abstain from the resolution of the meeting, such resolution may be adopted by the vote of shareholders representing at least an absolute majority of the voting share capital.

 

12.4 The Extraordinary Shareholders’ Meeting — in first and second call — is regularly constituted and resolves (i) with the vote of shareholders representing at least 75% of the voting share capital regarding (x) resolutions to increase share capital with the exclusion of option rights pursuant to article 2441(4) and (5) of the Italian Civil Code,

 

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(y) mergers and de-mergers which involve a dilution of the interest held by shareholders of the Company, except in accordance with Article 18.2(i) below; and (z) amendments to Articles 12, 15, 18 and 22 of these By-Laws; and (ii) for the remaining resolutions with the vote of shareholders representing at least 65% of the voting share capital (with the exception of resolutions under articles 2446 and 2447 of the Italian Civil Code, which are decided by the applicable majorities), provided that, in the event of letters (i) and (ii) above, if one or more shareholders who, alone or in the aggregate, hold an interest in the company that exceeds 30% of the voting share capital should abstain or be absent from such a shareholders’ meeting resolution, the resolution may be adopted by a vote of shareholders representing at least an absolute majority of the voting share capital.

 

If the quorums to validly convene and resolve upon business set out in the first paragraph of this Article 12.4 are not met, the extraordinary shareholders’ meeting may be re-convened to resolve upon the same matters provided at least 30 days from the previous convocation have lapsed. In this event, the shareholders’ meeting in first and in second convocation is duly convened and resolves with the favourable votes of shareholders representing the absolute majority of the voting share capital.

 

Article 13

 

(Right of participation and vote)

 

13.1 Participation in the shareholders’ meeting is allowed to those shareholders having the right to vote or the financial instruments giving the right to vote on at least one of the itmes on the agenda as well as to those individuals who have been granted the right of participation either by law or by virtue of these by-laws. Each share carries one vote. The Company ensures the provision of translation services for shareholders who do not speak Italian.

 

13.2 For participation in the shareholders’ meeting, it is not necessary to have previously lodged (i) shares or the relative certificates thereof, and (ii) financial instruments incorporated in securities or documented by certificates.

 

13.3 The shareholders’ meeting can also be held in a number of places, either contiguous or far from each other, connected by audio and/or video, as long as the collegial method is used, principles of good faith are upheld, and all shareholders are treated equally. In particular, it is necessary that:

 

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(i) the chairman of the shareholders’ meeting and the person taking record of the shareholders’ meeting be in the same place; they will write up and sign the minutes and for the purposes of record the meeting will be considered as having taken place at that location;

 

(ii) the chairman of the shareholders’ meeting be allowed, including through the office of the chairman, to verify the identity and legitimacy of the participants, control the meeting process, verify and announce the results of voting;

 

(iii) the person taking down the minutes be allowed to properly observe the shareholders’ meeting events he or she is required to record;

 

(iv) the participants be allowed to take part in the discussion and simultaneously vote on the items on the agenda, as well as view, receive and transmit documents;

 

(v) the audio and/or video locations to which the Company is responsible for allowing the participants to connect to be indicated in the notice to call the shareholders’ meeting.

 

Article 14

 

(Chairman and secretary)

 

14.1 The shareholders’ meeting shall be chaired by the Chairman of the Board of Directors or by a person elected with the majority vote of those present.

 

14.2 The shareholders’ meeting shall appoint a secretary, who does not have to be a shareholder, and if needed also one or more vote counters, who do not have to be shareholders. The attendance of the secretary is not necessary if the minutes are recorded by a notary.

 

SECTION IV

 

GOVERNANCE

 

Article 15

 

(Appointment of the Board of Directors)

 

15.1 The Company is governed by a board of directors comprised of 10 directors.

 

15.2 The appointment of the board of directors shall take place on the basis of the lists submitted by shareholders holding Class A Shares and Class B Shares in accordance with the following paragraphs describing this process whereby the candidates shall be listed using a sequential numbering scheme.

 

Holders of Class A Shares who, either individually or collectively with other holders of Class A Shares represent a participation equal to at least 20% of the Company’s share

 

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capital may submit or concur in the presentation of a list. Holders of Class B Shares who, individually or collectively with other holders of Class B Shares hold a participation equal to at least 20% of the Company share capital may submit or concur in the presentation of a list.

 

The lists submitted by the shareholder must be submitted to the Company’s registered office at least five days before the date set for the shareholders’ meeting at first call and each of them must contain the number of candidates equal to the maximum number of board members to be elected.

 

Included with each list, and within the deadlines indicated above, there must be declarations with which the individual candidates irrevocably accept their candidature and attest, under their own responsibility, that there are no conditions of ineligibility or incompatibility, and that they do in fact possess the requirements set out for the respective positions.

 

Shareholders can submit or concur with a submission, and vote on a single list.

 

Holders of Class A Shares may only vote for a list presented by one or more holders of Class A Shares. The holders of Class B Shares may only vote for a list presented by one or more holders of Class B Shares.

 

15.3 If, on the date of the shareholders’ meeting to vote upon the election of the directors, the Class A Shares represent in the aggregate the absolute majority of the voting share capital, the following procedure is to be followed to appoint the Directors:

 

(a) from any list submitted by holders of Class B Shares, 4 directors names will be taken. The first director appointed shall be appointed Deputy Chairman;

 

(b) the remaining board members to be elected will be taken from the list submitted by holders of the Class A Shares. The first director appointed shall be appointed Chairman.

 

However, if on the date of the shareholders’ meeting to resolve upon the appointment of the directors, the aggregate Class B Shares represent an absolute majority of the voting share capital of the Company, the following procedure is to be followed to appoint the Directors:

 

(x) from any list submitted by the A Shareholders, 5 directors names will be taken; the first Director appointed shall be appointed Chairman;

 

(y) the names of the remaining 5 Directors to be appointed shall be taken from the list submitted by the holders of Class B Shares. The first Director appointed shall be appointed Deputy Chairman.

 

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15.4 If, on the date of the shareholders’ meeting to resolve upon the appointment of the directors, the aggregate Class B Shares represent an interest of less than 30% and in excess of 20% of the voting share capital, 2 directors names shall be taken from the list submitted by the holders of Class B Shares, while the other names shall be taken from the list submitted by the holders of Class A Shares. If, on the date of the shareholders’ meeting to resolve upon the appointment of the directors, the aggregate Class A Shares represent an interest of less than 30% and in excess of 20% of the voting share capital, 2 directors names will be taken from the list submitted by the holders of Class A Shares while the other names will be taken from the list submitted by the holders of Class B Shares.

 

15.5 If a single list has been submitted, the board members who appear on that list will be elected.

 

In the event that no list is submitted, the appointment of the board members will not be carried out with the list vote system indicated above but rather by a resolution of the shareholders’ meeting taken with the quorums required by the law.

 

15.6 If in the course of a financial year a director has ceased his or her position, he or she shall be replaced by the first non-elected candidate on the same list as that of the ceased director, or if such non-elected candidate cannot serve, then the non-elected person immediately below him or her on that same list will serve as the replacement director. If it is not possible for any reason to replace the missing board member with any of the non-elected candidates from that same list, then the provisions of law shall be followed.

 

If in the course of a financial year the majority of the members of the board of directors cease their office, then the remaining board members shall resign, with such resignation becoming effective from the moment the Board is reconstituted by nomination of the shareholder’s meeting.

 

A shareholders’ meeting shall be called immediately by remaining board members, for the purposes of appointing the new board of directors.

 

Should all board members resign or cease to hold their position for any reason, the shareholders’ meeting for the purposes to appoint the new board of directors, shall be called immediately by the Board of Statutory Auditors, which shall perform the ordinary administrative activity in the meantime.

 

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Article 16

 

(General provisions)

 

16.1 The administration of the Company may also be entrusted to non-shareholders.

 

16.2 The directors shall hold their positions for a term established by their deed of appointment and therefore for a period not to exceed three financial years. This term shall expire on the date of the shareholder meetings’ called to approve the financial statements for the last financial period of their term.

 

16.3 As long as the limitations and restrictions of a regulatory nature applicable in Brazil continue to remain in force and applicable, in compliance with the principles underlying article 2391 of the Italian Civil Code, no director elected from the list submitted by the holders of Class B shares will be able to participate to discussions of, and consequently neither to vote on, any matter on the agenda for the meetings of the board of directors — or of any internal committee — that concern the activities carried out or to be carried out in the Brazilian telecom market by companies that are directly or indirectly controlled by Telecom Italia S.p.A.

 

16.4 As long as the limitations and restrictions taken vis-à-vis the Argentine authorities remain effective, in compliance with the principles underlying article 2391 of the Italian Civil Code, the directors elected from the list submitted by the holders of Class B shares and the managers appointed upon request of the holders of Class B Shares will not be able to participate in discussions on the Activities in the Argentine Market performed or to be performed by Telecom Italia S.p.A., Telecom Italia International N.V. or by companies directly or indirectly controlled by Telecom Italia S.p.A. or Telecom Italia Internationl N.V. carrying out any of the Activities in the Argentine Market, including Sofora Telecomunicaciones SA, Nortel Inversora SA., Telecom Argentina SA and Telecom Personal SA, and consequently neither to vote on or to veto any of any matter on the agenda for the meetings of the board of directors — or of any internal committee or similar corporate body — that concern the activities as indicated above.

 

For the purposes of this Article 16.4 and as long as the limitations and restrictions vis-à-vis the Argentine authorities remain effective, prior to any meeting of the Board of Directors of the Company, covering among other things the matters relating to the Activities in the Argentine Market, the chairman of the board of directors, as well as any other person involved in the preparation of agendas, will have to prepare two agendas as follows: (i) an agenda for the meeting in which the directors from a list submitted by the holders of Class B shares are entitled to participate, and (ii) another agenda for the meeting in which the directors from a list submitted by the holders of

 

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Class B Shares are not allowed to participate. The meetings in which directors from a list submitted by the holders of Class B Shares are not permitted to participate shall relate to matters covering the Activities in the Argentine Market of Telecom Italia S.p.A. and the companies directly or indirectly controlled by Telecom Italia S.p.A. performing Activities in the Argentine Market.

 

Article 17

 

(Chairman of the board of directors)

 

17.1 The board of directors elects from among its members — where the shareholders’ meeting has not already done so — a chairman and one or more deputy chairmen in accordance with these By-Laws, establishing therein their powers, without prejudice to the powers provided for by law.

 

17.2 The board of directors can further appoint a secretary, temporarily or permanently, who does not have to be a member of the board of directors.

 

Article 18

 

(Powers of the board of directors and representation)

 

18.1 The board of directors is vested with the broadest powers for ordinary and extraordinary management of the Company, without exception of any sort, and shall carry out all functions not reserved - by law or these by-laws - to the competence, including of an authoritative nature, of the shareholders’ meeting.

 

18.2 The board of directors shall be exclusively responsible for making decisions on the following:

 

(i) mergers by incorporation of companies in which the Company holds at least ninety percent of the shares or quotas, merger by incorporation of the Company into another company which already holds at least ninety percent of the Company’s shares, as well as a de-merger of the Company within the meaning of article 2506 — ter of the Italian Civil Code;

 

(ii) transactions for the acquisition or transfer of, or creation of an encumbrance over, the Company’s direct or indirect shareholdings, in any manner held whatsoever, in Olimpia S.p.A. (“O”) or in TI (or other rights pertaining to the shares of O or TI including by way of example, voting rights), with the exception of shareholdings transferred to adhere to tender offers mandatory by law or regulation which take place once the authorization of the ordinary shareholders’ meeting has been given;

 

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(iii) investments in companies other than investments in O and in TI;

 

(iv) decisions regarding fixed-capital investment or in any case related to the financial structure of the Company having a value in excess of Euro 75 million;

 

(v) determination of the vote to be cast at the shareholders’ meetings of O and of TI;

 

(vi) approval or modification of the Company’s budget;

 

(vii) reduction of share capital in the event of a shareholder’s withdrawal;

 

(viii) the by-laws’ compliance with legislative provisions;

 

(ix) the setup, transfer or dissolution of branch offices;

 

(x) any other power exclusively within the powers of the Board of Directors.

 

The resolutions regarding the matters mentioned above in (ii) to (vi) are approved by way of the vote of at least seven sitting board members (the “Consolidated Quorum”). As a partial exception to the above, if resolutions of board members require a Consolidated Quorum, and three or more board members have abstained or are absent, these resolutions shall be taken with a vote of the simple majority of the board members holding office.

 

Subject to the above, in the event that the Consolidated Quorum is not achieved for the resolutions relating to the matters at points (ii) and (v), the Board of Directors may be re-convened to resolve upon the same business. In this event, the Board of Directors resolves with a vote of the simple majority of the Directors holding office.

 

18.3 The following persons shall represent the Company, including in legal proceedings (including therein the ability to file lawsuits and initiate legal actions — also including before the Supreme Court - and to appoint to that end attorneys-at-law, and litigation attorneys):

 

(i)                                    the chairman of the board of directors;

 

(ii)                                the deputy chairman;

 

(iii)                            anyone not a member of the board of directors, designated thereby, within the scope of and in the exercise of the powers granted to them.

 

Article 19

 

(Meetings of the board of directors)

 

19.1 The board of directors can also meet in a place other than the registered office of the Company, provided that it meets only in Milan, any time that the chairman of the board of directors, or whoever is standing in for him, deems it suitable and/or necessary

 

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or when he is asked to do so by at least one of the directors or by the Board of Statutory Auditors and at least once every three months.

 

19.2 The board of directors is convened by the chairman of the board of directors or by whomsoever is standing for him, at least five days - or in case of urgency, two business days — before the date set for the meeting, via registered letter, hand-delivered letter, telegram or fax, sent to all directors and statutory auditors at the addresses indicated in the company books; the date, place and time of the meeting, list of items on the agenda and possible details relating to the audio and/or videoconferencing connections should be included in the notice of call.

 

19.3 In the absence of a formal call, the board of directors shall be considered as having been validly constituted if all sitting board members and regular statutory auditors are participating therein.

 

19.4 At the request of any Director, meetings of the board of directors can also take place in a number of places, either together or distant from each other, connected by audio and/or video, as long as:

 

(i) the chairman of the meeting and the person taking record of the meeting are in the same place; they will write up and sign the minutes and for the purposes of record, the meeting will be considered as having taken place at that location;

 

(ii) the chairman of the meeting is allowed to verify the identity of the participants, control the meeting process, oversee and announce the results of voting;

 

(iii) the person taking down the minutes is allowed to properly observe the events of the meeting he or she is tasked with recording;

 

(iv) the participants are allowed to take part in the discussion and simultaneously vote on the items on the agenda, as well as look at, receive and transmit documents.

 

The Company ensures the provision of translation services for directors’ to take part in meetings and the translation of documents which are to be resolved upon by the Board, which should be included with the notice of call.

 

19.5 Without prejudice to the provisions of Article 18.2 above, the resolutions of the board of directors shall be considered as having been validly made with the majorities provided by law.

 

19.6 Meetings of the board of directors are chaired by the chairman of the board of directors or by the board member appointed by the participants.

 

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19.7 Resolutions of the board of directors must be recorded in the minutes signed by the chairman of the meeting and by the individual who recorded them and must be transcribed into the book of minutes of the meetings of the Board of Directors.

 

Article 20

 

(General managers and attorneys)

 

20.1 The board of directors may appoint, replace and remove one or more general managers, deciding on their functions, assignments and powers.

 

20.2 The board of directors may also appoint, replace and remove agents, attorneys and representatives — in general — for particular acts or categories of acts; the same can be done by any director vested with the power of representation, within the limits of the relative assigned powers.

 

Article 21

 

(Compensation of directors)

 

21.1 Compensation for directors shall be determined in accordance with article 2389 of the Italian Civil Code.

 

21.2 The shareholders’ meeting may determine a total amount for compensation of all the directors, including those vested with particular responsibilities.

 

21.3 In any case, the directors must be reimbursed for expenses incurred in the performance of their duties in office.

 

SECTION V

 

BOARD OF STATUTORY AUDITORS AND ACCOUNTING CONTROL

 

Article 22

 

(Board of Statutory Auditors)

 

22.1 The Board of Statutory Auditors is composed of three regular auditors and two alternate auditors.

 

Appointment of the Board of Statutory Auditors shall be done on the basis of lists submitted by shareholders. Holders of Class A Shares can submit or concur to submit a single list. Holders of Class B Shares can submit or concur to submit a single list.

 

The lists submitted by the shareholders must be submitted to the Company’s registered office at least five days before the date set for the first-call of the shareholders’ meeting.

 

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Included with each list there must be declarations with which the individual candidates irrevocably accept their candidature and attest under, their own responsibility, that there are no conditions of ineligibility or incompatibility, and that they do in fact possess the requirements set out for the respective positions by law and by the By-laws.

 

The lists shall be divided into two sections: one for candidates for the position of regular statutory auditor and the other for candidates for the position of alternate auditor.

 

Anyone with the right to vote can vote on a single list.

 

The following procedure is to be followed in the election of the members of the Board of Statutory Auditors:

 

(a) from the list that may have been submitted by holders of Class B Shares shall be chosen, per the sequential order in which they appear on this list, one alternate auditor and one regular auditor, who will serve as the Chairman of the Board of Statutory Auditors.

 

(b) the remaining board members to be elected will be taken from the list submitted by holders of Class A Shares.

 

22.2 If no lists are submitted, the Board of Statutory Auditors is appointed in accordance with the law.

 

22.3 The regular statutory auditors will be compensated on the basis of professional tariffs, where such compensation has not been determined by the shareholders’ meeting.

 

22.4 Meetings of the board of statutory auditors may also be held using electronic methods in compliance with the rules set forth under Article 19.4 above.

 

Article 23

 

(Accounting control)

 

23.1 As long as the Company is not required to prepare consolidated financial statements, the accounting control is exercised by the Board of Statutory Auditors, entirely formed by accountants registered under the national register kept by the Ministry of Justice; pursuant to a resolution of the ordinary shareholders’ meeting, and in any case in accordance with Law, accounting control may, however, be conferred on an accounting auditor or an auditing company registered with the national register kept by the Ministry of Justice.

 

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SECTION VI

 

FINANCIAL STATEMENTS AND PROFITS

 

Article 24

 

(Company fiscal year)

 

24.1 The Company’s fiscal year ends on 30 April of each year.

 

Article 25

 

(Financial statements)

 

25.1 At the end of each of the Company’s fiscal year, the board of directors shall draw up the financial statements in accordance with the law.

 

Article 26

 

(Profits)

 

26.1 The net profits resulting from the financial statements, minus an amount not less than 5% (five percent) to be allocated to the legal reserve, up to the limit allowed by law, shall be distributed among the shareholders in a proportion corresponding to the number of shares held by each shareholders, unless the shareholders’ meeting decides on special allocations to extraordinary reserves or some other purpose or decides to carry the profits over - in whole or in part - to the next fiscal year.

 

26.2 If the Company’s financial statements have been subjected by law to auditing by an auditing company registered with the related professional register, the distribution of accounts of dividends pursuant to article 2433-bis of the Italian Civil Code is allowed.

 

SECTION VII

 

DISSOLUTION

 

Article 27

 

(Dissolution)

 

27.1 The Company shall be dissolved for the reasons established by law.

 

27.2 In the event the Company is dissolved, the procedure to be followed shall be that set out in articles 2484 and subsequent of the Italian Civil Code.

 

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SECTION VIII

 

RULES FOR REDEMPTION

 

Article 28

 

(Methods for exercising the right of redemption)

 

28.1 Any Company Share (either Class A, or Class B or Class C) can be redeemed pursuant to and for the effects of article 2437-sexies of the Italian Civil Code, if the prerequisites set out in this article have been satisfied.

 

28.2 If the ordinary shareholders’ meeting has authorised pursuant to Article 10.1 (ii), to adhere to public tender offers to acquire the shareholdings directly or indirectly held by the Company in TI, any shareholder (or shareholders) who have caused to set down in writing their dissent thereto at this shareholders’ meeting (hereafter, the “Dissenting Shareholder”) shall have the option of redeeming all — and not just part — of the Company Shares (hereafter, the “Redemption”) held by the other shareholders, in accordance with the following procedure:

 

(i) The Dissenting Shareholder who wishes to exercise the Redemption must give written notice thereof (the “Notice”) via registered letter with return receipt to all the other shareholders and to the Chairman of the Board of Directors within 5 working days after the date of the shareholders’ meeting which authorized the transaction above, indicating, in this notice, the Redemption price, established in accordance with point (iv) below;

 

(ii) in the event that there are more Dissenting Shareholders, they shall have the right to buy the Shares which are the object of the Redemption in proportion to their stake in the Company’s share capital;

 

(iii) at the date of the Ordinary Shareholders’ Meeting which authorised the above-mentioned transaction, the TI shares directly or indirectly held by the Company will be made unavailable by depositing them in an escrow account held by the Company or by a company controlled by it, which owns a direct stake in TI, with a fiduciary company that has received binding and irrevocable instructions, in accordance with the provisions of this clause, and with the necessary powers to proceed to execute the transfer and endorsement of the shares in favour of the Dissenting Shareholder;

 

(iv) the Redemption price for each Share of the Company shall be the adjusted shareholders’ equity of the Company divided by the total number of shares of the Company. The adjusted shareholders’ equity of the Company is established taking into consideration the greater of (i) the consideration offered for the TI shares subject to the tender offer, and (ii) the price of the shares held in TI based on the arithmetic average of

 

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the official stock exchange prices within 30 days preceding the date of the Notice pursuant to this Article 28.2(i);

 

(v) in case of dispute, on the part of one or more shareholders, as to the price of Redemption within 10 days after receipt of the notification mentioned in number (i) above, the determination thereof shall be handed over to an expert appointed, upon request of the most diligent shareholder, by the President of the Court of Milan. The expert must adhere to the criteria stated in the preceding number (iv) above and must determine the Redemption price within 20 working days after the appointment;

 

(vi) the transfer of the shares and the payment of the Redemption price shall take place: (x) within 15 working days following the Notice or (y) if the transaction is subject to authorisation pursuant to the law or by contract, within 15 working days following the authorisation or (z) in case of any dispute, within 15 working days from the final determination of the Redemption price. It being understood that the transfer of the Shares subject to Redemption shall take effect on the date of the notice to the Company of the deposit of the Redemption price, as specified in the Notice in the absence of any dispute, or as determined by the expert appointed pursuant to point (v) above, to banks appointed by the selling Shareholders, and the Company will make the consequent annotations in the shareholders’ register.

 

SECTION IX

 

TRANSITIONAL PROVISIONS

 

Should the A Promoting Members (as defined above) no longer hold an aggregate total of at least 35% of the share capital, Article 7.2(ii) above shall be replaced with the following:

 

“(ii) if, following completion of the procedure at point (i) above, there are still Remaining Class A Shares, these Remaining Class A Shares shall be offered without delay to the holders of Class B Shares by notice to be given in accordance with point (i) above of this Article 7.2. The Remaining Class A Shares purchased by the holders of Class B Shares shall be divided among the holders of Class B Shares who exercised the pre-emption right, in proportion to the number of Class B Shares held by each of them and provided that the Right of Increase provided at Paragraph 7.2(i) above is applied mutatis mutandis, subject to the automatic conversion of the aforesaid Class A Shares

 

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subject to pre-emption at the conversion rate of one newly-issued Class B Share (having the same characteristics as the Class B Shares in circulation) for each Class A Share subject to pre-emption. The exercise of the Right of Pre-emption by the holders of Class B Shares, if exercised in accordance with this Article 7.2 (ii), must be carried out within 30 days of the receipt of the notice of a pre-emption right offer, by means of an appropriate written notice to the Chairman of the Board of Directors and the Shareholder Transferring Class A Shares, specifying the number of shares requested to be purchased. The conversion of Class A Shares to Class B Shares takes effect on the date of Board of Directors’ resolution of approval (which for this purpose must be convened within 5 days of the expiry of the exercise period of the Right of Pre-emption specified in the present Article 7.2 (ii)), subject to the condition precedent of the non-occurrence of the events at Paragraph 7.2 (iv) below, following which, all the necessary formalities for the issue of Class B Shares and up-date the By-Laws as required shall be fulfilled.”.

 

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Exhibit 99.33

 

To:

Telefonica S.A.

Gran Via no. 28,

28013 Madrid

Spain

 

and

Assicurazioni Generali S.p.A.

Piazza Duca degli Abruzzi no. 2

34100 Trieste

Italy

 

and

Mediobanca — Banca di Credito

Finanziario S.p.A.

Piazzetta Cuccia no. 1

20121 Milan

Italy

 

24 September 2013

 

Dear Sirs,

 

we have received from Telefonica (as defined herein) the following proposal, which we hereby transcribe in its entirety and accept vis-à-vis Telefonica and the other addressees:

 

****                    ****                    ****                    ****

 

“AGREEMENT

 

This agreement (the “Agreement”) is entered into

 

BY AND BETWEEN

 

·                                TELEFÓNICA S.A., a Spanish company with registered office at 28013, Madrid, Gran Via no. 28, Spain (“TE”);

 

·                                ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Giuseppe Mazzini no. 53, Italy, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.;

 

·                                GENERALI ITALIA S.p.A., an Italian company with registered office at Mogliano Veneto (TV), via Marocchesa no. 14, Italy, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.;

 

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·                                GENERALI LEBENSVERSICHERUNG A.G., a German company with registered office at Hamburg, an der Besenbinderhof no. 43, Germany, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.;

 

·                                GENERALI VIE S.A., a French Company with registered office at Paris, Boulevard Hausmann no. 11, France, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.;

 

·                                ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at Trieste, Piazza Duca degli Abruzzi no. 2, Italy (“Generali”), on its own behalf and in the name and on behalf of its subsidiaries ALLEANZA TORO S.p.A., GENERALI ITALIA S.p.A., GENERALI LEBENVERSICHERUNG A.G. and GENERALI VIE S.A. (“Generali Subsidiaries” and, together with Generali, collectively referred to as “AG”);

 

·                                INTESA SANPAOLO S.p.A., an Italian company with registered office at Torino, Piazza San Carlo no. 156, Italy (“IS”); and

 

·                                MEDIOBANCA S.p.A., an Italian company with registered office at Milan, Piazzetta Cuccia no. 1, Italy (“MB”);

 

(hereinafter collectively referred to as the “Parties” and, individually, a “Party”)

 

WHEREAS

 

A.                The Parties jointly own the whole share capital of Telco S.p.A., with registered office at Milan, via Filodrammatici no. 3, Italy, fiscal code n. 05277610969 (“Telco”) which, at the date hereof, owns 3,003,586,907 ordinary shares of Telecom Italia S.p.A., with registered office at Milan, Piazza degli Affari 2, Italy, fiscal code no. 00488410010 (“TI”), equivalent to approximately 22.4% of the ordinary share capital of TI, according to the following proportion:

 

·                  TE owns no. 1,234,128,374 Class B shares of Telco representing approximately 46.18% of Telco’s share capital;

 

·                  AG owns no. 817,214,961 Class A shares of Telco representing approximately 30.58% of Telco’s share capital;

 

·                  IS owns no. 310,520,713 Class A shares of Telco representing approximately 11.62% of Telco’s share capital; and

 

·                  MB owns no. 310,520,713 Class A shares of Telco representing approximately 11.62% of Telco’s share capital.

 

B.                On 28 April 2007 the Parties and Sintonia S.A., a Luxembourg company with registered office at 1, Place d’Armes, L. 1136 Luxembourg (“SI”), entered into (a) a co-investment agreement (the “Co-investment Agreement”); and (b) a shareholders’ agreement - by means of which they established the principles relating inter alia to (i) the corporate governance of Telco, (ii) the preparation and presentation of the list for the shareholders’ meeting of TI having on the agenda the appointment of TI’s directors, (iii) the transfer of Telco’s shares and indirectly of the TI’s shares owned by Telco, and (iv) the autonomous

 

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and independent management of the TI and TE groups, including limitations on the participation of TE or its representatives in any decision-making processes relating to policies, management, and operations of companies directly or indirectly controlled by TI in countries where restrictions apply (the “Original Shareholders’ Agreement”).

 

C.                On 28 October 2009, SI required the non-proportional de-merger of Telco, pursuant to Article 11(b) of the Original Shareholders’ Agreement, thereby becoming an Exiting Party in relation thereto. As at the date hereof, SI is no longer a shareholder of Telco and is no longer bound by the Original Shareholders’ Agreement. The exit of SI from the Original Shareholders’ Agreement and Telco’s shareholding (the “SI Exit”) was then agreed with an alternative modality and completed on 22 December 2009.

 

D.                The Original Shareholders’ Agreement was then amended and renewed by the Parties as follows:

 

·                  amended and supplemented with the first deed of amendment dated 25 October 2007 and with the second deed of amendment dated 19 November 2007;

 

·                  amended and renewed by means of the first renewal agreement dated 28 October 2009 for an additional period of 3 (three) years, starting from 28 April 2010 until 27 April 2013;

 

·                  following completion of SI Exit, further amended by virtue of further deeds of amendment dated 11 January 2010 (the “Amendment Agreement”) and 10 December 2010; and

 

·                  lastly amended and renewed by means of the second renewal agreement dated 29 February 2012 (the “Second Renewal Agreement”) for an additional period of 3 (three) years, starting from 29 February 2012 until 28 February 2015, which entirely replaced the Original Shareholders’ Agreement as subsequently amended and renewed,

 

(the Original Shareholders’ Agreement as a result of the aforesaid amendments and renewal from time to time agreed is hereby referred to as the “Shareholders’ Agreement”).

 

E.                 The Parties now wish to agree upon further provisions regarding Telco and TI and, consequently, further amend the Shareholders’ Agreement and Telco’s By-Laws.

 

F.                  Unless differently provided herein, the terms and expressions used with initials in capital letter in this Agreement shall have the same meaning attributed to them in the Shareholders’ Agreement.

 

G.                For the purposes of this Agreement, the term “Business Day” means any day other than Saturdays or Sundays or any other day which is a legal holiday in Italy or in Spain or a day in which banking institutions in Milan or in Madrid are authorized to be closed.

 

Now, therefore, in consideration of the foregoing premises the Parties hereby agree and covenant as follows.

 

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1.                                     DEMERGER OF TELCO

 

1.1                               Article 11 of the Shareholders’ Agreement, as amended by Paragraph 1.(ii) of the Second Renewal Agreement, is entirely replaced by the following:

 

“(ii) Each of the Parties shall have the right (the “De-merger Option”) to require in writing to the other Parties the non-proportional de-merger of Telco (in either case, the “Final De-merger”) in the First De-merger Window, the Second De-merger Window, the Extended First De-merger Window, the Extended Second De-merger Window, as defined below (jointly, the “De-merger Windows”):

 

·                  from 15 June 2014 until 30 June 2014 (the “First De-merger Window”);

 

·                  from 1 February 2015 until 15 February 2015 (the “Second De-merger Window”),

 

provided further that:

 

(a)          should the First De-merger Window period occur while TE’s Call Option has been exercised but TE’s Closing has not occurred then (x) the De-merger Option shall be not exercisable by any of the Parties, until the TE’s Closing has occurred and (y) in the event that the TE’s Closing does not occur within the Long Stop Date (as defined in Article 5.11 below), the Parties shall be allowed to exercise the De-merger Option during the period starting from the Long Stop Date and ending the 15th (fifteenth) calendar day following the Long Stop Date (the “Extended First De-merger Window”); and

 

(b)          should the Second De-merger Window period occur while TE’s Call Option has been exercised but TE’s Closing has not occurred then (x) the De-merger Option shall be not exercisable by any of the Parties, until the TE’s Closing has occurred and (y) in the event that the TE’s Closing does not occur within the Long Stop Date (as defined below in Article 5.11 below), the Parties shall be allowed to exercise the De-merger Option during the period starting from the Long Stop Date and ending the 15th (fifteenth) calendar day following the Long Stop Date (the “Extended Second De-merger Window”);

 

(c)           if (x) the Extended Second De-merger Window falls after the New Expiry Date or (y) the De-merger procedure following the exercise of the De-merger Option falls after the New Expiry Date, then the Parties hereby agree to enter into prior to the New Expiry Date an extension of the Shareholders’ Agreement starting from the New Expiry Date, at the same terms and conditions set out in the Shareholders’ Agreement until completion of the Final De-merger; and

 

(d)          in any case of exercise of the De-merger Option by any of AG, IS or MB (whether during the First De-merger Window, the Second De-merger Window, the Extended First De-merger Window or the Extended Second De-merger Window, as the case may be), (x) the De-merger Option, while being perfectly valid, shall not be immediately effective and shall remain suspended until the 5th (fifth) Business Day following the end of the relevant De-merger Window in which the De-merger Option has been exercised, as extended (the 5 (five) Business Days after the end of the relevant De-merger Window, as extended, shall be hereinafter referred to as the “Waiting Period”) and (y) TE shall be allowed to exercise its TE’s Call Option pursuant to Article 5 vis-à-vis the

 

4

 

Party/Parties not having exercised the De-merger Option and if TE so does, then the De-merger procedure and the Call Option procedure shall continue in accordance with their respective terms for the Parties concerned and, with respect to the Party/Parties not having exercised the De-merger Option, the same rules provided for in sub-paragraphs 1.1(ii)(a) and 1.1(ii)(b) above shall apply mutatis mutandis.

 

(iii) The De-merger Option will be exercisable by each of the Parties by sending the de-merger notice in either the First De-merger Window or Second De-merger Window or the Extended First De-merger Window or the Extended Second De-merger Window (as the case may be) (the “Final Notice “), upon which (subject to the Waiting Period) the Parties shall be bound to cause Telco to complete the Final De-merger within a reasonably short timeframe, but in any case no later than 6 (six) months following the relevant notice or, if the transaction is subject to any authorizations by law or contract, within 6 (six) months following the obtaining of such authorizations, in accordance and in compliance with all the provisions set out in Article 11 of the Shareholders’ Agreement. It is hereby agreed and understood that, in the event the Final De-merger were required by one or more Parties during the last 5 (five) calendar days of any of the De-merger Windows, then such relevant window shall be extended for 5 (five) calendar days. In case the Final De-merger were required, then the Shareholders’ Agreement shall continue in full force and effect (a) with respect to the Exiting Party, until the earlier of the date of completion of the de-merger and the New Expiry Date, as extended from time to time; (b) with respect to the other Parties not having exercised the right to require the de-merger, until the New Expiry Date, as extended from time to time.”

 

1.2                               Paragraph 1.(iii) of the Second Renewal Agreement is entirely deleted; therefore, the Parties confirm and agree that none of the Parties has exercised, or will exercise, the Right to Withdraw and to require the other Parties to cause the non-proportional de-merger of Telco pursuant to Article 11(b) of the Shareholders’ Agreement by sending the relevant notice in the period between 1 September 2013 and 28 September 2013 (the “Anticipated Notice Period” as defined in the Second Renewal Agreement) and that such Right to Withdraw for the Anticipated Notice Period shall be deemed as irrevocably waived, without prejudice to paragraph 1.1 above.

 

2.                                      CAPITAL INCREASE OF TELCO

 

2.1                               The Parties undertake to exercise all their powers and rights to cause Telco’s shareholders’ meeting to be held on the date hereof, simultaneously to the execution of this Agreement, and to resolve upon and unanimously approve (i) a capital increase of Telco,  to be reserved to TE, for an overall amount of Euro 323.772.468 by issuance of no. 1.557.781.083 Class C shares (which will have the rights and characteristics indicated in article 3 below) (the “Reserved Capital Increase”), reaching thereby after the Reserved Capital Increase an overall stake in the total share capital of Telco (including voting and non-voting shares) equal to 66.0% (sixty-six per cent) while keeping, until conversion of the Class C shares pursuant to article 3.2 below, its current percentage of the voting share capital of Telco which is equal to 46.18% (forty-six point eighteen per cent); and (ii) the amendments of Telco’s By-Laws to provide for the Reserved Capital Increase, the Class C shares and TE’s Call Option, in the form attached hereto in Italian and English as Annex 2.4.

 

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2.2                               A. TE shall entirely subscribe the Reserved Capital Increase in cash on the date hereof in order to support and safeguard its investment in Telco without affecting the current governance structure of Telco and TI until conversion.

 

B. Subject to TE having received all necessary antitrust and telecommunication authorisations (including, if needed, in Brazil and in Argentina), (i) the Parties undertake to exercise all their powers and rights to cause Telco’s shareholders’ meeting to be held and to resolve upon and unanimously approve a further capital increase of Telco, to be reserved to TE, for an overall amount of Euro 117.227.532 by issuance of further no. 564.022.113 Class C shares (which will have the same rights and characteristics of the Class C shares issued pursuant to article 2.1 above, as indicated in article 3 below) (the “Second Reserved Capital Increase”); and (ii) TE shall be obliged to subscribe the Second Reserved Capital Increase in cash on the same date of the shareholders’ resolutions taken pursuant to sub-paragraph (i) above, reaching thereby after the Second Reserved Capital Increase an overall stake in the total share capital of Telco (including voting and non-voting shares) equal to 70.0% (seventy per cent) while keeping, until conversion of the Class C shares pursuant to article 3.2 below, its current percentage of the voting share capital of Telco which is equal to 46.18% (forty-six point eighteen per cent). In case any competent telecommunication or antitrust authority imposes, in connection with the Second Reserved Capital Increase, restrictions, limitations or other measures, then TE shall have, at its sole discretion, the right to either accept such restrictions, limitations or other measures, or decide not to proceed with the Second Reserved Capital Increase, provided that if TE proceeds with the Second Reserved Capital Increase, the restrictions, limitations or other measures imposed shall be entirely and exclusively undertaken by TE.

 

C. If and to the extent that the Second Reserved Capital Increase has not been subscribed by TE prior to exercise of the De-merger Option, then, upon completion of such de-merger procedure pursuant to the Shareholders’ Agreement, TE shall be obliged to pay to each beneficiary resulting from such de-merger which is either a holder of Class A shares or a company wholly owned by a Party which, before completion of such de-merger, was a holder of Class A shares (the “Beneficiary”) an amount — as compensation for the lower capitalisation of Telco — resulting from multiplying Euro 60,000,000 (sixty million) for the percentage of Class A shares held by such holder of Class A shares over the total number of Class A shares immediately prior to completion of such de-merger, provided that (i) no payment shall be due if the Second Reserved Capital Increase has been subscribed by TE at any time prior to completion of such de-merger, (ii) to the extent feasible, such de-merger process shall be structured so as to ensure that TE has the ability to subscribe the Second Reserved Capital Increase during, and until completion of, the de-merger process, (iii) payment shall be due only at completion of such de-merger and to the Beneficiary, (iv) the de-merger project shall be structured, to the extent possible, so as to ensure that, as a result of such de-merger, each Beneficiary receives, among its proportional part of Telco’s debts assigned, a proportional portion of the Euro 1,750,000,000.00 notes issued by Telco on 29 April 2013 and subscribed by each of the Parties (the “Notes”) which will be split by attributing to each Beneficiary the Notes held by the same (if the Beneficiary is a Party) or by its respective controlling shareholder (if the Beneficiary is a company wholly owned by a Party), and (v) TE (or if the Beneficiary is a company wholly owned by TE, the latter) shall be permitted to offset any amount due to each other Beneficiary pursuant to this article 2.2 C. with any debt which such

 

6

 

Beneficiary will have vis-à-vis TE, including in relation to the Notes held by TE as a result of such de-merger.

 

2.3                               The Parties undertake to duly fulfil all corporate and legal requirements aimed at approving and executing the Reserved Capital Increase and the Second Reserved Capital Increase and to cooperate in good faith in order to implement the changes provided herewith, unanimously waiving or amending, if necessary, any such requirements both at Telco’s By-Laws’ or Shareholders’ Agreement’s level, including clause 2, letter B, of the Shareholders’ Agreement.

 

2.4                               Telco’s By-Laws attached to the Shareholders’ Agreement under Annex 9.1 are entirely replaced by the new Telco’s By-Laws as amended by the shareholders’ meeting of Telco approving the Reserved Capital Increase and the introduction of Class C shares, attached hereto as Annex 2.4. It is agreed by the Parties that (i) the Italian version will prevail and that the Parties will implement the amendments, if any, which will be requested by the Notary Public to comply with mandatory provisions of Italian law, subject to the principle of fullest implementation of the principles of the Shareholders’ Agreement; and (ii) in case of conflict, the provisions of the Shareholders’ Agreement will prevail over the provisions of Telco’s By-Laws and the Parties shall conform their acting so as to implement such provisions.

 

2.5                               For the avoidance of doubt, the Parties acknowledge that the Reserved Capital Increase and the Second Reserved Capital Increase are not in any manner whatsoever considered a “Cash Injection” pursuant to article 2 of the Amendment Agreement.

 

3.                                      CLASS C SHARES

 

3.1                               Article 2 of the Shareholders’ Agreement is entirely replaced by the following:

 

“2. Class A, Class B and Class C Shares

 

The Parties agree that:

 

(a)                                 consistently with Telco’s By-Laws, the share capital of Telco shall be divided into three separate categories: the Class A, the Class B and the Class C shares,

 

(b)                                 unless otherwise agreed by all shareholders of Class A and Class B or as provided for herein, all the share capital increases for the duration of this Shareholders’ Agreement shall be resolved “in opzione” pursuant to article 2441, first paragraph, of the Italian Civil Code splitting the overall amount of shares so as to reflect the proportion from time to time existing between Class A, Class B and Class C shareholders,

 

(c)                                  except where otherwise provided in the Shareholders’ Agreement, TE shall receive and thereafter acquire (through share capital increases or exercise of the pre-emption right set forth in the Telco’s By-Laws) only Class B shares, Class C shares or, in case of exercise of the pre-emption right, Class A shares to be converted into Class B shares, while the other Parties, including the Italian Qualified Investors, if any, shall hold Class A shares, save for the possibility to acquire Class B and the Class C shares in case of exercise of the pre-emption right to be converted in Class A shares,

 

7

 

(d)                                 the Class B shares shall have exactly the same economic and administrative rights as the Class A shares, save as provided for herein and in the Telco’s By-Laws, and

 

(e)                                  the Class C shares shall have the same economic and administrative rights as the Class B shares, except that Class C shares (x) shall be non-voting shares and (y) shall be convertible in Class B shares, as provided for herein and in the Telco’s By-Laws.

 

3.2                               A new article 2-bis of the Shareholders’ Agreement is inserted as follows:

 

“2-bis. Conversion of Class C Shares

 

At any time after 1 January 2014, TE will have the right (but not the obligation), to convert all or part of its Class C shares into Class B shares up to an overall number of Class B shares representing no more than 64.9% (sixty-four point nine per cent) of the voting share capital of Telco, (i) in one or more slots, and (ii) with a conversion ratio of one Class B share for each Class C share held by TE.

 

For exercising the conversion right, TE — after having received all necessary antitrust and telecommunication authorizations (including, if needed, in Brazil and in Argentina) — shall send a written notice to Telco, copy to the other Parties, indicating its intention to exercise the conversion right as provided for in article 5.1.3 of Telco’s By-Laws. Upon receiving the notice, all Parties shall cooperate in good faith and do anything necessary or useful to allow the conversion as provided for in Telco’s By-Laws. If the conversion requires any antitrust and/or telecommunication authorisation, TE shall duly prepare and submit to the competent authorities the relevant filing as soon as diligently possible and the other Parties shall provide all information and reasonable cooperation for such filings. In case any competent telecommunication or antitrust authority imposes, in connection with the conversion, restrictions, limitations or other measures, then TE shall have, at its sole discretion, the right to either accept such restrictions, limitations or other measures or decide not to proceed with the conversion of Class C shares into Class B shares, provided that, if TE proceeds with the conversion of Class C shares into Class B shares, the restrictions, limitations or other measures imposed shall be entirely and exclusively undertaken by TE.”

 

3.3                               Upon completion of the conversion (to the extent that TE receives Class B shares in exchange for the Class C shares which, together with the Class B shares already owned by TE as the date hereof, exceed 50% (fifty per cent) of Telco’s voting capital) and until expiry of the Shareholders’ Agreement (as extended from time to time):

 

A.                           Article 1.1(b) of the Shareholders’ Agreement shall be deemed as amended and restated as follows:

 

“(b)                  Telco’s By-Laws shall contain a voting list system to ensure that:

 

(i)      the Parties holding the Class A shares will be entitled to appoint five directors, including the Chairman; for this purpose, it is hereby agreed between the Parties holding the Class A shares that: (x) they will concur in the presentation of one list; (y) the list shall be determined based on the principle of

 

8

 

proportionality by the Parties holding the Class A shares unanimously, failing which unanimity within the terms indicated in the By-Laws, the proportionality will be as follows: two directors will be indicated by AG, one director will be indicated by each of IS and MB, the Chairman will be indicated unanimously;

 

(ii)               TE, as holder of Class B shares, will be entitled to appoint five directors, including the Vice-Chairman.”.

 

B.                           Article 5, third paragraph, of the Shareholders’ Agreement shall be amended and restated as follows:

 

“For the entire term of the Shareholders’ Agreement, the board of directors of Telco shall approve the list to be submitted to the shareholders’ meeting of TI, for the appointment of the directors of TI pursuant to the following criteria:

 

(i)      the Class A shareholders which are Party to this Shareholders’ Agreement shall designate the first two members of the list to be presented by Telco and half of the remaining directors (excluding those to be appointed out of the TI’s minority shareholders list) to be appointed out of such list, provided that such directors will be selected as follows by the Class A shareholders: (x) 2 (two) members unanimously and (y) the remaining members in proportion to their respective stake in Telco; and

 

(ii)     TE — to the extent holding more than 50% (fifty per cent) of the Telco’s voting share capital — shall have the right vis-à-vis the other Parties to designate all the remaining directors (excluding those to be appointed out of the TI’s minority shareholders lists) to be indicated in the list to be presented by Telco. The members to be designated by TE will be placed in the positions of the list which are within the positions in the first 80% of the list. The Parties agree that TE shall be entitled to designate in any case at least 4 (four) members of the TI’s board of directors, provided that the total number of the members in TI’s board of directors is no lower than 13 (thirteen). For this purpose the Parties shall cause Telco to vote against any proposal brought to TI’s shareholders meeting in order to lower the members of the TI’s board of directors below 13 (thirteen).

 

For the avoidance of doubt, in case of 15 (fifteen) directors to be elected in the board of directors of TI, 3 (three) shall be reserved to the lists to be presented by the minority shareholders of TI while, as regards the list to be presented by Telco, 7 (seven) shall be indicated by the Class A shareholders and 5 (five) by TE.

 

The above criteria shall apply also in case of appointment pursuant to Article 2386, first paragraph, of the Italian Civil Code (“cooptazione”).”

 

3.4                               For the avoidance of doubt, the Parties agree and acknowledge that, for so long as TE does not convert a number of Class C shares, so that the overall number of its voting shares exceed 50% (fifty per cent) of Telco voting share capital, the principles referred to in the Shareholders’ Agreement prior to the execution of this Agreement, shall continue to apply without any of the changes referred to in Article 3.3, paragraphs A. and B.

 

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3.5                               A new article 8.2.4 of the Shareholders’ Agreement is inserted as follows:

 

“8.2.4 The shareholder who intends to transfer Class C shares (hereinafter the “Shareholder Transferring Class C shares”) to an acquiring third party, including a shareholder of Telco (hereinafter, a “Person Bidding for Class C shares”) must offer them in advance on equal terms to the other shareholders who hold Class C Shares, and subsequently, upon occurrence of the prerequisites respectively at points (ii) and (iii) below, to the shareholders who hold Class B shares and Class A shares. The holders of Class C shares may acquire the Class C shares offered exercising their Right of Pre-emption in proportion to the number of Class C Shares possessed by each of them compared with the total number of Class C Shares issued by Telco; the holders of Class B shares may purchase the shares offered to them exercising their Right of Pre-emption in accordance with the provisions at point (ii) below and in proportion to the number of Class B shares possessed by each of them compared with the total number of Class B shares issued by Telco; the holders of Class A shares may purchase the shares offered to them exercising their Right of Pre-emption in accordance with the provisions at point (iii) below and in proportion to the number of Class A shares possessed by each of them compared with the total number of Class A shares issued by Telco; the above mentioned procedure shall occur in compliance with the following mechanisms:

 

(i)            the Shareholder Transferring Class C shares must transmit a communication, by registered or certified mail with return receipt requested to the chairman of the board of directors of Telco and to the other shareholders holding Class C shares, specifying the number of Class C shares, the price and the other economic and contractual conditions of the transfer and the personal particulars of the Person Bidding for Class C shares (the “Transferring Notice of Class C shares”). Within 30 days of the date of receipt of the Transferring Notice of Class C shares (the “Term of Exercise of Class C shares”), the shareholders holding Class C shares who intend to avail themselves of the Right of Pre-emption must give the appropriate written communication to the chairman of the board of directors and to the Shareholder Transferring Class C shares (the “Acceptance Notice of Class C shares”). The shareholders holding Class C shares who exercise the Right of Pre-emption, provided that they make a contextual request in the Acceptance Notice of Class C shares, will have the right (hereinafter, the “Right of Increase of Class C shares”) to acquire the Class C shares remaining on sale once all the Acceptance Notices of Class C shares have been received (the “Remaining Class C shares”). Any Acceptance Notices of Class C shares shall specify the number of Remaining Class C Shares in relation to which the relevant shareholder holding Class C shares wishes to exercise the Right of Increase of Class C shares. The Remaining Class C shares shall be divided among the shareholders who have exercised the Right of Increase of Class C shares in proportion to the number of Class C shares held by each of them, provided that after the exercise of the above mentioned rights any shareholder holding Class C shares will not be entitled to acquire a number of Class C shares higher than the aggregate number indicated into the Acceptance Notice of Class C shares.

 

(ii)           If, after carrying out of the procedure in the preceding point (i), there are still any Remaining Class C shares, such Remaining Class C shares shall be offered without delay to the shareholders holding Class B shares by means of a

 

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communication made in the form specified in the preceding paragraph (i) of this Article 8.2.4. The Remaining Class C shares which become pre-empted by the shareholders holding Class B shares must be divided among the holders of Class B shares who pre-empted them — in proportion to the number of Class B shares held by each of them, provided that the Right of Increase of Class C shares included in Article 8.2.4(i) above shall apply mutatis mutandis. The exercise of the Right of Pre-emption by the shareholders holding Class B shares, potentially exercised in accordance with this article 8.2.4(ii), must be carried out within 15 (fifteen) days of the receipt of the notice of offering in pre-emption by means of an appropriate written communication to the chairman of the board of directors and the Shareholder Transferring Class C shares, specifying the number of shares requested in pre-emption.

 

(iii)          If, after carrying out of the procedure in the preceding point (ii), there are still any Remaining Class C shares, such Remaining Class C shares shall be offered without delay to the shareholders holding Class A shares by means of a communication made in the form specified in the preceding paragraph (i) of this Article 8.2.4. The Remaining Class C shares which become pre-empted by the shareholders holding Class A shares must be divided among the holders of Class A shares who pre-empted them — in proportion to the number of Class A shares held by each of them, provided that the Right of Increase of Class C shares included in Article 8.2.4(i) above shall apply mutatis mutandis. The exercise of the Right of Pre-emption by the shareholders holding Class A shares, potentially exercised in accordance with this article 8.2.4(ii), must be carried out within 15 (fifteen) days of the receipt of the notice of offering in pre-emption by means of an appropriate written communication to the chairman of the board of directors and the Shareholder Transferring Class C shares, specifying the number of shares requested in pre-emption.

 

(iv)          Should remain any Class C shares subject to the bid not acquired by Class C shareholders, Class B shareholders or Class A shareholders in the sense of the foregoing (the “Shares C not Purchased”) and the Person Bidding for Class C shares is accepting to buy the Shares C not Purchased, the Shares C not Purchased may be transferred from the Shareholder Transferring Class C shares to the Person Bidding for Class C shares, within but not later than 15 (fifteen) days, if the transfer in favour of the Person Bidding for Class C shares has not occurred within the aforesaid term, any later transfer of Class C shares and of the rights related thereto shall be subject again to the procedure specified in this article 8.2.4; any act of transfer carried out in violation of the provisions of this Article 8.2.4 shall be invalid and not opposable to Telco.

 

(v)           Should remain any Share C not Purchased and the Person Bidding for Class C shares is not accepting to buy only the Shares C not Purchased pursuant to the previous Article 8.2.4(iv), the Shareholder Transferring Class C shares shall be entitled to sell all the Class C shares object of the Class C Transferring Notice to the Person Bidding for Class C shares.”.

 

3.6                               Article 8.2.4 of the Shareholders’ Agreement is re-numbered into new article 8.2.5.

 

3.7                              Article 8.2.5 of the Shareholders’ Agreement is re-numbered into new article 8.2.6.

 

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3.8                               Article 8.2.6 of the Shareholders’ Agreement is re-numbered into new article 8.2.7.

 

3.9                               Any reference to the “share capital” of Telco in articles 1.1(b), 1.1(d), 1.1(e) and 3 of the Shareholders’ Agreement has to be deemed as, and therefore amended into, a reference to the “voting share capital” of Telco.

 

3.10                        Any reference to a “share” of Telco in article 1.1(b) of the Shareholders’ Agreement has to be deemed as, and therefore amended into, a reference to a “voting share” of Telco.

 

4.                                      USE OF PROCEEDS

 

The Parties agree that the total net proceeds deriving from (aa) the Reserved Capital Increase shall be applied to prepay (partially) the outstanding amount of the Telco’s Term Facility Agreement executed in May 28, 2012 (the “Telco’s Term Facility”) as soon as reasonably possible taking into account the notification periods for pre-payments provided for in the Telco’s Term Facility; and (bb) the Second Reserved Capital Increase shall be applied to  the partial repayment of the Notes, which shall be made promptly to all the noteholders, in proportion to the amount of Notes held and in any case not later than 5 (five) Business Days after the Second Reserved Capital Increase has been fully subscribed.

 

5.                                      TE’S CALL OPTION

 

5.1                               Grant of TE’s Call Option

 

Subject to the terms and conditions of this article 5, AG, IS and MB hereby irrevocably and unconditionally (i) grant TE with the right to purchase (the “TE’s Call Option”) all but not less than all the Class A shares held by each of AG, IS and MB in Telco’s share capital on the date hereof and all but not less than all other Class A shares that may be held by each of AG, IS and MB in Telco’s share capital prior to the exercise of the TE’s Call Option (as better described in Clause 5.3 below - the “Italian Telco Shares”) and (ii) provided that the TE’s Call Option is exercised in accordance with the terms and conditions of this article 5, agree to transfer their Italian Telco’s Shares for the TE’s Purchase Price as defined below. Anything to the contrary notwithstanding, the obligations of the Class A shareholders under the TE’s Call Option shall be several, provided for the sake of clarity that, should any of AG, IS and MB be in breach of its respective obligation to sell the shares under the TE’s Call Option, such breach shall not affect the other Parties’ respective rights and obligations in respect to the TE’s Call Option (including the ability of TE to acquire all but not less than all the Italian Telco Shares owned by each of such other Parties and the obligation of the latter to sell their respective Italian Telco Shares to TE).

 

5.2                               Consideration

 

The TE’s Call Option is hereby granted to TE by AG, IS and MB (and may not be exercised unless vis-à-vis all such three Parties, except as provided for in Clause 5.3 below) in consideration of the additional investment commitment in Telco undertaken by TE pursuant to this Agreement (including the obligation undertaken by TE to compensate AG, IS and MB pursuant to article 2.2 C. above) and taking into account the overall balance of the economic interests existing between all parties to the Co-Investment Agreement, the Shareholders’ Agreement and this Agreement.

 

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Accordingly, the Parties hereby acknowledge and agree that the TE’s Call Option on the Italian Telco Shares shall be deemed to be onerous and not gratuitous.

 

5.3                               Object of TE’s Call Option

 

Object of the TE’s Call Option shall be all (but not just part of) Telco’ shares held by AG, IS and MB at the time of the TE’s Call Option Notice. In any event where one or more of the current Class A shareholders of Telco ceases to be shareholders of Telco or exercises its De-merger Option, this will not affect the TE’s Call Option, which will remain valid in relation to the shareholdings of the other Class A shareholders.

 

5.4                               Purchase price

 

Subject to the exercise of the TE’s Call Option, the purchase price to be paid upon TE’s Closing (as defined below) by TE to the Class A shareholders that sell Class A Shares to TE by virtue of the TE’s Call Option (the “Sellers”) as consideration for the Italian Telco Shares held by the Sellers shall be equal to the adjusted net asset value of the Telco shares, calculated as follows:

 

	X =	(NE – B) + (S*P)
		N

 

where

 

X = the purchase price of each Italian Telco Share owned by the Sellers (the “TE’s Purchase Price”);

 

NE = the net equity (patrimonio netto) of Telco as shown in the Financial Statements (as defined below);

 

B = the book value of TI’s shares shown in the Financial Statements (as defined below);

 

S = the total number of TI’s shares owned by Telco as of the TE’s Closing date provided that in case of change between the number of TI’s shares held by Telco from  the date of reference of the Financial Statements and the TE’s Closing Date, the above formula shall be adjusted accordingly;

 

P = the higher of (i) Euro 1.10 (one point ten) and (ii) the average closing price of the TI’s shares registered on the Milan stock exchange during the 30 (thirty) trading days preceding the delivery of the TE’s Call Option Notice, provided that (i) and (ii) above shall be adjusted in the event of a split, reverse split, stock dividend, capital increases or similar transactions after the date hereof;

 

N = the total amount of Telco Shares (aggregate of Class A shares, Class B shares and Class C shares); and

 

Financial Statements = the financial statements as of the last day of the month prior to the TE’s Closing drafted in accordance with Italian GAAP, approved by the Board of Directors of Telco and, at the request of any of the Parties, audited without remarks by Telco’s auditors.

 

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The Parties (i) acknowledge that TE shall pay the TE’s Purchase Price in cash; and (ii) agree to cooperate in good faith in order to ensure that as of TE’s Closing the Financial Statements are promptly finalised and approved in order to determine the TE’s Purchase Price.

 

5.5                               Time of exercise

 

TE will have the right to exercise the TE’s Call Option at any time (including during any Waiting Period, as provided above) starting from 1 January 2014 until expiry of the Shareholders’ Agreement (as extended from time to time), provided however that:

 

(i)                                    if the TE’s Call Option has not been exercised on or prior to 31 May 2014, then (x) TE shall not be entitled to exercise the TE’s Call Option until the end of the First De-merger Window and (y) if the De-merger Option is exercised by any of the Parties during the First De-merger Window, TE shall not be entitled to exercise the TE’s Call Option with respect to such Party having exercised the De-merger Option until completion of the de-merger procedure, provided that if, after all the authorizations needed for such De-merger have been obtained, the De-merger process is not completed as a consequence of a decision directly and exclusively assumed by the Party having exercised the De-merger Option, then TE shall again be entitled to exercise the TE’s Call Option during the 5 (five) Business Days following the day on which the De-merger could have been completed in accordance with Article 11 of the Shareholders’ Agreement;

 

(ii)                                if the TE’s Call Option has been exercised on or prior to 31 May 2014 but the TE’s Closing does not occur prior to the Long Stop Date, then (x) TE shall not be entitled to exercise the TE’s Call Option until the end of the Extended First De-merger Window and (y) if the De-merger Option is exercised by any of the Parties during the Extended First De-merger Window, TE shall not be entitled to exercise the TE’s Call Option with respect to such Party having exercised the De-merger Option until completion of the de-merger procedure, provided that if, after all the authorizations needed for such De-merger have been obtained, the De-merger process is not completed as a consequence of a decision directly and exclusively assumed by the Party having exercised the De-merger Option, then TE shall again be entitled to exercise the TE’s Call Option during the 5 (five) Business Days following the day on which the De-merger could have been completed in accordance with Article 11 of the Shareholders’ Agreement;

 

(iii)          if the TE’s Call Option has not been exercised on or prior to 15 January 2015, then (x) TE shall not be entitled to exercise the TE’s Call Option until the end of the Second De-merger Window and (y) if the De-merger Option is exercised by any of the Parties during the Second De-merger Window, TE shall not be entitled to exercise the TE’s Call Option with respect to such Party having exercised the De-merger Option until completion of the de-merger procedure, provided that if, after all the authorizations needed for such De-merger have been obtained, the De-merger process is not completed as a consequence of a decision directly and exclusively assumed by the Party having exercised the

 

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De-merger Option, then TE shall again be entitled to exercise the TE’s Call Option during the 5 (five) Business Days following the day on which the De-merger could have been completed in accordance with Article 11 of the Shareholder’s Agreement;

 

(iv)                             if the TE’s Call Option has been exercised on or prior to 15 January 2015 but the TE’s Closing does not occur prior to the Long Stop Date, then (x) TE shall not be entitled to exercise the TE’s Call Option until the end of the Extended Second De-merger Window and (y) if the De-merger Option is exercised by any of the Parties during the Extended Second De-merger Window, TE shall not be entitled to exercise the TE’s Call Option with respect to such Party having exercised the De-merger Option until completion of the de-merger procedure, provided that if, after all the authorizations needed for such De-merger have been obtained, the De-merger process is not completed as a consequence of a decision directly and exclusively assumed by the Party having exercised the De-merger Option, then TE shall again be entitled to exercise the TE’s Call Option during the 5(five) Business Days following the day on which the De-merger could have been completed in accordance with Article 11 of the Shareholders’ Agreement;

 

(v)                                 if, in any of the events referred to in subparagraph 5.5 (i), (ii), (iii) and (iv) above, any of the Parties exercises its De-merger Option and TE exercises the TE’s Call Option with respect to the other Parties that are still Class A shareholders of Telco, then the Party or Parties having exercised the De-merger Option (to the extent the De-merger has yet to be completed) will be entitled to withdraw from such de-merger and to become one of the Sellers under the TE’s Call Option, to the extent it notifies such decision in writing within 5 (five) calendar days following delivery of the TE’s Call Option Notice referred to in subparagraph 5.6 below. In any such case, TE shall be obliged to purchase, at the terms and conditions referred to in this Article 5, also the Italian Telco Shares and the outstanding Notes held by the Party withdrawing from the de-merger.

 

5.6                               Notice of exercise

 

(a)                                 The TE’s Call Option shall be exercised in writing by means of a written notice to the Sellers, copy to Telco, (the “TE’s Call Option Notice”) indicating confirmation that all necessary antitrust and telecommunication authorisations have been duly requested, including, if needed, those required under any Brazilian and Argentinean applicable antitrust and telecommunications rules (the “Necessary Authorisations”).

 

(b)                                 In the event that TE’s Call Option is exercised while any of the Parties has exercised its De-merger Option as referred to in the last paragraph of Clause 5.5 above, then the TE’s Call Option Notice shall be also sent in copy to such Party which has exercised the De-merger Option.

 

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5.7                               Closing

 

5.7.1                     Following the exercise of the TE’s Call Option, the completion of the acquisition of the Italian Telco Shares held by the Sellers by TE (the “TE’s Closing”) shall take place, unless otherwise agreed in writing, at the time and place indicated by TE on the 15th (fifteenth) Business Day following:

 

(a)                                 the TE’s Call Option Notice, or

 

(b)                                 the granting of the last Necessary Authorisation.

 

5.7.2                     At the TE’s Closing:

 

(a)                                 TE shall pay to the Sellers the TE’s Purchase Price, as well as any applicable stamp duty and transfer charges;

 

(b)                                 the Sellers shall deliver the Italian Telco Shares to TE crediting them in the account which shall be indicated by TE in due advance, free and clear from any lien, option, charge, or encumbrances of any kind, or any right in favour of third parties;

 

(c)                                  the Sellers shall perform any other action required to be performed before or at the TE’s Closing in order to implement the endorsement and registration of the Italian Telco Shares in the name of TE.

 

5.8                               Transfer limitations

 

The Parties acknowledge that the provisions under article 8.2 of the Shareholders’ Agreement and under article 7 of Telco’s By-Laws shall not apply to the transfer of the Italian Telco Shares from the Sellers to TE pursuant to this article 5.

 

To the extent necessary for the performance of the obligations under this article 5, the Parties undertake to cooperate in good faith and exercise all their powers and rights to cause Telco’s shareholders’ meeting convened pursuant to article 2.1 above to amend Telco’s By-Laws so to exclude the application of article 7 of Telco’s By-Laws to the transfer of the Italian Telco Shares from the Sellers to TE pursuant to this article 5, unanimously waiving or amending, if necessary, any such requirements both at Telco’s By-Laws’ or Shareholders’ Agreement’s level.

 

5.9                               Outstanding Notes

 

With respect of the Notes, it is agreed that, following exercise of the TE’s Call Option, TE shall be committed to (i) either cause Telco to repay in full the outstanding Notes (except, for the sake of clarity, for the proportional part of the Notes held by a Party, if any, which has exited Telco following the exercise of the de-merger pursuant to the Shareholders Agreement) on or immediately after TE’s Closing, or (ii) purchase at TE’s Closing from each of the noteholders which are Sellers all the outstanding Notes held by each of them, provided in this latter case that TE shall pay the consideration for such Notes, 50% (fifty per cent) in cash and 50% (fifty per cent) in cash or TE’s shares or mix of cash and TE’s shares, at TE’s sole discretion, provided that TE’s shares shall be used as consideration of the Notes based on the lower of (i) the closing quoted price on the Madrid stock exchange on the day before the TE’s Closing and (ii) the average closing quoted prices on the Madrid stock exchange of the 30 (thirty) trading days preceding the TE’s Closing, and provided that the TE’s shares which will

 

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be attributed to the Sellers in payment of the Notes so purchased will be subject to the lock-up undertaking and the other transfer limitations indicated in article 6 below. If TE decides to pay any portion of the Consideration for the Notes in TE’s shares it shall so communicate in writing to the Sellers at least 3 (three) calendar days prior to the TE’s Closing date.

 

5.10                        Termination of the Shareholders’ Agreement

 

Simultaneously with the acquisition of the Italian Telco Shares by TE, the Parties will terminate the Shareholders’ Agreement and any other agreements among them providing for the governance and investment rules in Telco and TI.

 

5.11                        Authorisations

 

If the TE’s Closing requires any antitrust and/or telecommunication authorisation, TE shall duly prepare and submit to the competent authorities the relevant filing as soon as diligently possible and the other Parties shall provide all information and reasonable cooperation for such filings, provided that, if such authorisations are not granted within 180 (one hundred and eighty) calendar days from the date of the TE’s Call Option Notice or from expiry of the 5 (five) calendar days term referred to in Article 5.6 (b), as applicable (the “Long Stop Date”), the TE’s Call Option Notice will cease to have effect and the Parties will no longer be obliged to transfer the Italian Telco Shares under such Notice, provided that, to the extent TE is again entitled to deliver a new Call Option Notice in accordance with the provisions of this Agreement, it shall not affect its right to do so. In case any competent telecommunication or antitrust authority imposes, in connection with the Call Option, restrictions, limitations or other measures, then TE shall have, at its sole discretion, the right to either accept such restrictions, limitations or other measures, or decide not to proceed with the TE’s Closing, provided that, if TE proceeds with the TE’s Closing, the restrictions, limitations or other measures imposed shall be entirely and exclusively undertaken by TE.

 

6.                                      LOCK-UP AND TRANSFER LIMITATIONS OF TE’S SHARES

 

6.1                               In the event AG, IS and MB receive any TE’s shares pursuant to Article 5.9 of this Agreement, any such TE’s shares shall be subject to the following limitations:

 

6.1.1                     Lock-up

 

The lock-up provided for in this article 6.1.1 will be applicable during the 15 (fifteen) trading days following the date on which AG, IS and MB have received TE’s shares (the “Lock-Up Period”). During the Lock-Up Period AG, IS and MB undertake to TE that they will not, without the prior written consent of TE, directly or indirectly:

 

(a)                                 Transfer of TE’s shares:

 

(i)                                     offer or sell any TE’s shares;

 

(ii)                                  contract to sell any TE’s shares;

 

(iii)                               issue or sell any option or contract to purchase any TE’s shares;

 

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(iv)                              purchase any option or contract to issue or sell any TE’s shares;

 

(v)                                 grant any option, right or warrant to purchase any TE’s shares;

 

(vi)                              transfer, pledge, lend or otherwise dispose of any TE’s shares; or

 

(vii)                           enter into any agreement to do any of (i) to (vi) above;

 

(b)                                 Rights to TE’s shares: issue or offer any securities which confer a right to TE’s shares (or any interest therein), including any right to exchange, or convert into, TE’s shares, or enter into any agreement to do so;

 

(c)                                  Economic ownership of TE’s shares: enter into any agreement which transfers or might transfer any of the economic consequences of ownership of the TE’s shares (including, but not limited to, stock lending, derivative or hedging transactions and swap transactions);

 

(d)                                 Other share transactions: propose or, if proposed by others, vote, or implement capital increases, or issues of bonds that are convertible into or exchangeable for TE’s shares or issues of any instrument in each case of TE that has the aim or effect of delivery or transferring, directly or indirectly, the ownership of TE’s shares or the right to acquire any TE’s shares or any securities which are convertible into or exchangeable for TE’s shares or which carry rights to acquire TE’s shares or such securities (or any interest in any TE’s shares or such securities) to one or more third parties.

 

6.1.2                     Other transfer limitations

 

After expiry of the Lock-Up Period, AG, IS and MB undertake:

 

(i)            not to carry out any of the transactions referred to in article 6.1.1 above during the following black-out periods preceding the announcement of TE’s financial results (each a “Black Out Period”): (a) for the 15 (fifteen) trading days preceding 8 November 2013 (included), or the different date which is notified in writing by TE, and (b) for the following Black Out Periods, for the 15 (fifteen) trading days preceding the date (included) which will be notified in writing to AG, IS and MB by TE from time to time at least 15 (fifteen) calendar days prior to the beginning of any such Black Out Periods;

 

(ii)           not to sell (including, but not limited to, with respect to any type of transactions regarding derivatives, options, swaps, futures, collaterals or securities lending), directly or indirectly, on any market on which the TE’s shares are traded, any TE’s shares in an amount in excess of the following parameters:

 

(A)          in the case of AG, in the aggregate 7,5% (seven point five per cent) per Business Day of the total number of TE’s shares sold on the Madrid Stock Exchange on the immediately preceding trading day;

 

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(B)          in the case of IS, in the aggregate 3,75% (three point seventy-five per cent) per Business Day of the total number of TE’s shares sold on the Madrid Stock Exchange on the immediately preceding trading day; and

 

(C)          in the case of MB, in the aggregate 3,75% (three point seventy-five per cent) per Business Day of the total number of TE’s shares sold on the Madrid Stock Exchange on the immediately preceding trading day.

 

7.                                      STAND STILL

 

7.1                               A new paragraph is inserted after the current third paragraph of Article 7 (Stand Still) of the Shareholders’ Agreement, as follows:

 

“In derogation to the preceding paragraph:

 

(i)          for the entire duration of the Shareholders Agreement, as extended from time to time, TE will not be permitted to purchase TI Voting Shares (through any transaction, including without limitation, derivatives, warrants, options, lending of shares or rights, acquisition of pre-emptive rights or any other similar transaction);

 

(ii)         however the limitation under (i) above shall not apply to TE in the event that any person or entity (whether acting alone or in concert with other Connected Entities and whether directly or indirectly) acquires or announces its intention to acquire or undertakes to acquire TI Voting Shares, or the right to acquire or vote TI Voting Shares, for 10% (ten per cent) or more of TI’s voting share capital (taking into account the TI voting shares held by any Connected Entity acting in concert with such person or entity), including, without limitation, through derivatives, warrants, options, lending of shares or rights, acquisition of pre-emptive rights or any other similar transaction;

 

(iii)        without prejudice to point (iv) below, the provisions referred to in the preceding third paragraph of this Article 7 shall only apply to the Class A shareholders, provided that, for the avoidance of doubt, this shall not be interpreted so as to allow to the Class A shareholder to acquire any additional TI Voting Shares exceeding the amount of TI Voting Shares they were entitled to acquire before the date hereof (when Article 7 of the Shareholders’ Agreement was also applicable to the Class B shareholders);

 

(iv)       in the event under (ii) above, the provisions of the preceding third paragraph of this of this Article 7 shall become again applicable also to TE.”

 

7.2                               In addition and without prejudice to the provisions referred to above, TE undertakes not to purchase TI Voting Shares, in case the Demerger Option is exercised by TE, for a period of 1 (one) year after the completion of such de-merger, provided however that this limitation shall not apply in the event that any person or entity (whether acting alone or in concert with Connected Entity and whether directly or indirectly) acquires or announces its intention to acquire or undertakes to acquire TI Voting Shares, or the right to acquire or vote TI Voting Shares, for 10% (ten per cent) or more of TI’s voting

 

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share capital (taking into account the TI voting shares held by any Connected Entity acting in concert with such person or entity), including, without limitation, through derivatives, warrants, options, lending of shares or rights, acquisition of pre-emptive rights or any other similar transaction.

 

7.3                               Within 15 (fifteen) calendar days from the execution of this Agreement, each Party shall communicate to the other Parties in writing the number of TI Voting Shares it owns, directly and indirectly (taking into account all holdings which are relevant for the purpose of disclosure of interests pursuant to applicable Italian laws and regulations).

 

8.                                      OTHER AMENDMENTS TO THE SHAREHOLDERS’ AGREEMENT AND THE CO-INVESTMENT AGREEMENT

 

8.1                               The Parties agree that the last two paragraph of Article 5 of the  Shareholders’ Agreement shall be eliminated and substituted by the two following new paragraphs:

 

“The Parties agree that if any competent antitrust or regulatory authorities in any country shall impose on TE or on TI any burden or divestment finally confirmed by the competent authorities (the “Burden”) resulting from the completion of the Second Reserved Capital Increase, the conversion of Class C shares in Class B shares (referred to in Article 3 above) and the TE’s Call Option (the “Subsequent Transactions”), then TE (in case the Burden is imposed on TE) or each of the Parties (in case the Burden is imposed on TI) will have the right to request a De-merger as provided for in Article 1.2(cc) of this Shareholders’ Agreement, provided that such right to request the De-merger can only be exercised if (i) TE decides to continue with the relevant Subsequent Transaction, despite of such Burden; and (ii) such right to request the De-merger is exercised within 15 (fifteen) days from the day on which such Burden is finally confirmed by the competent authorities.

 

The Parties agree that in the event that a Subsequent Transaction is subject to conditions precedent by competent antitrust or regulatory authorities which require TE to reduce its prerogatives and rights in terms of governance in Telco and/or in TI and, notwithstanding such conditions precedent, TE decides to proceed with such Subsequent Transaction, then TE shall be bound to satisfy such conditions precedent and the Parties shall agree in good faith the amendments to this Shareholders’ Agreement which, while preserving the fulfilment of such conditions precedent, shall preserve as much as possible the overall spirit underlying this Shareholders’ Agreement.”

 

8.2                               Article 10 (Confidentiality) of the Shareholders’ Agreement is re-numbered in article 12 (Confidentiality).

 

8.3                               Article 11 (Cost and expenses) of the Shareholders’ Agreement is re-numbered in article 13 (Cost and expenses).

 

8.4                               Article 12 (Notices) of the Shareholders’ Agreement is re-numbered in article 14 (Notices) and any reference to the previous article 11 contained therein becomes references to new article 14.

 

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8.5                               The address and contacts of IS indicated in new article 14 (Notices) are amended as follows:

 

INTESA SANPAOLO S.p.A.

Via Montedi Pietà, 8

20121 Milano

To the attention of Chief Governance Officer

Fax no. +39 0287962376

 

8.6                               Article 14 (Variations) of the Shareholders’ Agreement is re-numbered in article 15 (Variations).

 

8.7                               Article 15 (Severability) of the Shareholders’ Agreement is re-numbered in article 16 (Severability).

 

8.8                               Article 16 (Entirety of Agreement) of the Shareholders’ Agreement is re-numbered in article 17 (Entirety of Agreement).

 

8.9                               Article 17 (No waiver and further assurances) of the Shareholders’ Agreement is re-numbered in article 18 (No waiver and further assurances).

 

8.10                        Article 18 (Governing law/Exclusive Jurisdiction) of the Shareholders’ Agreement is re-numbered in article 19 (Governing law/Exclusive Jurisdiction).

 

8.11                        In light of the provisions of this Agreement, the Parties agree that the Co-investment Agreement is amended accordingly, if and where necessary.

 

9.                                      SHAREHOLDERS’ AGREEMENT

 

9.1                               Except as provided for in articles 1, 3, 7 and 8 above, all the other provisions, terms and conditions set forth in the Shareholders’ Agreement - including, for the avoidance of doubts, the Call Option under Article 8.5(a) of the Shareholders’ Agreement, as implemented in the Call Option Agreement entered into by and between TE and Telco on 6 November 2007 and subsequently amended, supplemented and renewed - shall remain unchanged and are hereby expressly ratified and confirmed by the Parties.

 

9.2                               In relation to the amendments of the Shareholders’ Agreement provided for in articles 1, 3, 7 and 8 of this Agreement, the Parties shall cooperate for the timely performance of all the applicable disclosure requirements in relation thereto.

 

10.                               CONFIDENTIALITY

 

10.1                        The Parties shall timely agree upon the content of all the public announcements to be made by each Party upon execution of this Agreement.

 

10.2                       Except as provided for in articles 9.2 and 10.1 above, the Parties shall not, without the prior written consent of all the other Parties, disclose to any person, or make a public announcement, of the existence of this Agreement or of any of the terms or other conditions of this Agreement.

 

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10.3                        Where a disclosure or announcement is required by law or regulation or by any other competent authority to which a Party is subject, the disclosure or announcement shall, to the extent permitted by law or regulation and provided that it is reasonably feasible, be made after consultation by any such Party with the other Parties.

 

10.4                        If, for any reason whatsoever, a Party is unable to consult with the other Parties before the disclosure or announcement has been made pursuant to article 10.3 above, such Party shall, to the extent permitted by law or regulation, (i) inform the other Parties of the circumstances, timing, content and manner of the disclosure or announcement immediately after such disclosure or announcement has been made; and (ii) limit the disclosure or announcement to that part (and that part only) of the Agreement which is legally necessary to be disclosed or announced.

 

11.                               GOVERNING LAW AND JURISDICTION

 

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

 

****   ****   ****   ****

 

For acceptance:
INTESA SANPAOLO S.p.A.
Name:
Title:

 

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Exhibit 99.34

 

JOINT PRESS RELEASE

 

Assicurazioni Generali S.p.A. (“AG”), Intesa Sanpaolo S.p.A. (“IS”) and Mediobanca S.p.A. (“MB” and together with AG and IS, the “Italian Shareholders”) inform that on the date hereof have entered into an amendment agreement with Telefónica S.A. (“TEF”) with respect to the shareholders agreement concerning Telco S.p.A. (“Telco”) for the purposes, among others, of the recapitalization and the refinancing of the company (the “Agreement”).

 

The Agreement, which will be published in abstract in accordance with the applicable laws and will be deposited with the Companies Register, provides for:

 

1)  a first phase, to be executed on the date hereof; and

 

2)  a second phase, to be executed subject to the obtainment by TEF of all the authorizations of the competent telecommunication and antitrust authorities.

 

The expiration date of the shareholders agreement remains unchanged as of 28th February 2015.

 

FIRST PHASE

 

A.  Share capital increase of Telco S.p.A.

 

On the date hereof, TEF will subscribe a share capital increase of Telco, for an overall amount of Euro 324 million, to be paid in cash, on the basis of an evaluation of the shareholding in Telecom Italia owned by Telco equal to Euro 1.09 per share.

 

For the purposes of such share capital increase, the company will issue exclusively Class C share without voting rights, which may be converted by TEF – subject to the conditions indicated under paragraph D. below – in voting shares, belonging to the same class of shares already owned by TEF (Class B shares).

 

Telco will use the proceeds arising from the share capital increase in order to immediately reimburse, for the same amount, the financial debt that will be due in November 2013.

 

The outstanding bank debt of Telco will be entirely refinanced up to maximum Euro 700 million by Mediobanca and Intesa Sanpaolo in the same portion, through a new loan at market conditions.

 

Following the entire subscription of the share capital increase by TEF, the share capital of Telco will be allocated as follows:

 

Shareholders		% share capital		% voting share capital
Generali Group		19.32%		30.6% represented by Class A shares
Intesa Sanpaolo		7.34%		11.6% represented by Class A shares
Mediobanca		7.34%		11.6% represented by Class A shares
TEF		66.00%		46.2% represented by Class B shares

 

 

Until the possible conversion of the non voting shares subscribed by TEF into voting shares, the governance rights of each of the parties will remain unchanged, as currently in force.

 

B.  Acquisition of a portion of the bonds owned by the shareholders

 

Simultaneously with the execution of the share capital increase, TEF will purchase, at their par value, from the Italian Shareholders – pro quota – a portion of the bonds issued by Telco, therefore the quota of the bonds owned by TEF after the acquisition will be equal to 70% of the entire amount, while the remaining 30% will be allocated among AG (17%), IS (6.5%) and MB (6.5%).

 

The consideration will be represented by ordinary shares of TEF (owned by the same TEF), listed at the stock exchange of Madrid, with an evaluation of Euro 10.86 per share. Such shares will be transferrable on the market, within certain agreed daily limits and after the expiration of a lock-up period of 15 days.

 

SECOND PHASE

 

C.                                    Further capital increase of Telco

 

TEF has undertaken to subscribe another capital increase of Telco, to be paid in cash, for an overall amount of Euro 117 million, by issuing shares without voting rights (Classe C shares) and subject to the terms and conditions of the first capital increase referred to under paragrapgh A. above.

 

Following the execution of this second capital increase, conditional upon the obtaining by TE of all regulatory and anti-trust authorizations, TEF’s shareholding in Telco will reach up to 70% of the capital, without amending the governance.

 

D.                                    Conversion of Class C shares and governancee

 

Starting from 1° January 2014, conditional upon the obtaining by TE of all regulatory and anti-trust authorizations (including those in Brazil and Argentina), TEF shall have the right to convert, also in more tranches up to a shareholding of 64.9% of the voting capital of the company - the Class C shares, without voting right, into Class B shares with voting right.

 

 

In case TEF’s shareholding - as a consequence of the conversion - exceeds the 50% of the voting rights, Telco’s and Telecom Italia’s governance shall be amended as follows:

 

(i)                                     as far as Telco is concerned:

 

·                                          the board of directors shall continue to be composed by 10 members,

 

·                                          the Italian Shareholders shall appoint 5 directors and TEF the remaining 5;

 

·                                          the quorum of the shareholders’ meeting set forth in the by-laws currently in force shall not be amended;

 

(ii)                                  as far as modalities for the filing of the list for the appointment of the directors of Telecom Italia, the parties agreed that number of directors to be appointed shall not be lower than 13 and that, excluding the directors to be appointed by the minority shareholders’ list, the Italian Shareholders shall have the possibility to indicate the first 2 names of the list, while the remaining directors shall be indicated half by the Italian Shareholders and half by TEF.

 

E.                                     Call Option

 

Starting from 1 January 2014, TEF shall have the right (Call Option) to purchase in cash all Telco’s shares owned by the Italian Shareholders, against a purchase price to be determined on the basis of the evaluation of Telco’s shares in Telecom Italia at the higher of (i) Euro 1.10 (one point ten) and (ii) the average closing price of the TI’s shares registered on the Milan stock exchange during the 30 (thirty) trading days preceding the exercise of the Call Option.

 

The exercise of the Call Option shall be conditional upon the obtaining by TEF of all regulatory and anti-trust authorizations.

 

In case of exercise of the Call Option, TEF shall be obliged to purchase, at a nominal value, all the outstanding bonds issued by Telco and owned by the Italian Shareholders against a purchase price to be paid 50% (fifty per cent) in cash and , at TEF’s discretion, 50% (fifty per cent) in cash and/or TEF’s shares, on the basis of the same terms set forth under paragraph B. above.

 

F.                                      Demerger

 

Each of Telco’s shareholders will maintain the right to have Telecom Italia’s shares attributed directly, thus withdrawing from the shareholders agreement, by the demerger of Telco, to be requested during a first window between 15 and 30 June 2014 and a second window between 1° and 15 February 2015.

 

Consistently with the shareholders agreement currently in force, also the demerger shall be conditional upon the obtaining of all regulatory and anti-trust authorizations.

 

Milan 24 September 2013