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UNITED STATES |
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SECURITIES AND EXCHANGE COMMISSION |
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Washington, D.C. 20549 |
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SCHEDULE 13D/A |
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Under the Securities Exchange Act of 1934
(Amendment No. 8)
TELECOM ITALIA S.p.A.
(Name of Issuer)
Ordinary Shares of euro 0.55 par value each
(Title of Class of Securities)
87927W10
(CUSIP Number)
Amedeo Nodari
Merchant Banking Department
Intesa Sanpaolo S.p.A.
Via Monte di Pietà 12
20121 Milan, Italy
(+39) 02 879 62552
With a copy to:
Jeffrey H. Lawlis, Esq.
Latham & Watkins
Corso Matteotti, 22
Milan 20121
Italy
(+39) 02 3046 2039
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 27, 2013
(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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CUSIP No. 87927W10 | |||||
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Names of Reporting Persons. Intesa Sanpaolo S.p.A. | |||
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Check the Appropriate Box if a Member of a Group (See Instructions) | |||
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(a) |
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SEC Use Only | |||
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Source of Funds (See Instructions) | |||
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o | |||
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Citizenship or Place of Organization | |||
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Number of |
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Sole Voting Power | |||
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Shared Voting Power | ||||
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9. |
Sole Dispositive Power | ||||
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Shared Dispositive Power | ||||
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11. |
Aggregate Amount Beneficially Owned by Each Reporting Person | |||
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o | |||
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13. |
Percent of Class Represented by Amount in Row (11) | |||
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14. |
Type of Reporting Person (See Instructions) | |||
This Amendment No. 8 (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 were 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 unofficial translation of the amendments to article 5 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.
As previously described in Amendment No. 7 to Schedule 13D (filed on October 7, 2013 by Intesa Sanpaolo), 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 Existing Shareholders agreed to recapitalize Telco and refinance certain indebtedness thereof, as more specifically described in Amendment No. 7 to Schedule 13D. In connection with this refinancing, Telco entered into a euro 700 million loan agreement on October 4, 2013 (the “2013 Refinancing Facility”) with Intesa Sanpaolo and Mediobanca, as lenders (collectively, the “2013 Lenders”) and Banca IMI Sp.A., as agent (the “2013 Facility Agent”) maturing on February 16, 2015. The 2013 Refinancing Facility is secured by a pledge (the “2013 Pledge”) in favor of the 2013 Lenders over 1,900,000,000 Telecom Shares held by Telco (including the former 2012 Pledged Shares that had secured the 2012 Refinancing Facility) (such shares subject to the 2013 Pledge, the “2013 Pledged Shares”). To facilitate this transaction, on November 27, 2013, the Existing Shareholders and the 2012 Lenders entered into contractual arrangements pursuant to which the 2012 Pledge was released and the 2012 Pledged Shares Option Agreement was terminated (the “Deed of Termination”). Concurrently, on November 27, 2013, a new pledged shares option agreement (the “2013 Pledged Shares Option Agreement”) was entered into between, inter alios, the Existing Shareholders and the 2013 Lenders to establish the terms and conditions which would govern the Existing Shareholders’ call option (the “2013 Call Option”) to acquire from the 2013 Lenders at the terms and conditions referred to therein, any 2013 Pledged Shares acquired by the 2013 Lenders pursuant to an enforcement of the 2013 Pledge. Except as described therein, the terms of the 2013 Pledged Shares Option Agreement and the 2013 Call Option are substantially consistent with the terms of the 2012 Pledged Shares Option Agreement and the 2012 Call Option, respectively.
The Deed of Termination and the 2013 Pledged Shares Option Agreement are filed hereto as Exhibits 35 and 36, respectively.
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.
In addition, Intesa Sanpaolo may be deemed to have sole power to vote or direct the vote of 74,090,420 Telecom Shares and sole power to dispose or direct the disposition of 63,914,584 Telecom Shares through its direct holdings and the holdings of various subsidiaries, representing approximately 0.6% and 0.5% 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
In addition to the description contained herein, the description of the Deed of Termination and the 2013 Pledged Shares Option Agreement in the Introduction to this Amendment No. 8 is incorporated herein by reference. The summaries of certain material provisions of the Deed of Termination and the 2013 Pledged Shares Option Agreement do not purport to be a full and complete descriptions of such documents and are entirely qualified by reference to the full text of such documents attached hereto as Exhibits 35 and 36, respectively.
THE 2013 PLEDGED SHARES OPTION AGREEMENT
On November 27, 2013, the Existing Shareholders and the 2013 Lenders entered into the 2013 Pledged Shares Option Agreement. Pursuant to the 2013 Pledged Shares Option Agreement, the 2013 Facility Agent (or any successor thereof under the 2013 Refinancing Facility) will provide written notice to the Existing Shareholders of any enforcement of the 2013 Pledge (the “Enforcement Notice”). Together with the Enforcement Notice, the 2013 Facility Agent will also deliver to the Existing Shareholders a written notice (the “Calculation Notice”) stating (i) the aggregate amount outstanding under the 2013 Refinancing Facility plus accrued and unaccrued interest and any other related costs and expenses, including enforcement costs under the 2013 Refinancing Facility; (ii) the price at which the 2013 Lenders are entitled to acquire the 2013 Pledged Shares by enforcing the 2013 Pledge (the “Enforcement Price”), and (iii) the number of the 2013 Pledged Shares that the 2013 Lenders would be entitled to appropriate by enforcing of the 2013 Pledge (the “Appropriation Shares”).
Each Existing Shareholder is entitled to acquire the Appropriation Shares from the 2013 Lenders at a price per Appropriation Share equal to the higher of (i) the aggregate amount outstanding under the 2013 Refinancing Facility plus accrued and unaccrued interest thereunder and any other related costs and expenses, including enforcement costs, and (ii) the Enforcement Price divided by the aggregate number of the Appropriation Shares (in either case, the “Purchase Price”).
The 2013 Call Option will be validly exercised only if it is exercised for the exact amount of Appropriation Shares, provided, however, that if there is a discrepancy in the aggregate number of Appropriation Shares reported on the Exercise Notice due to clerical error, the relevant Existing Shareholders are entitled to cure the clerical error within one business day. Each Existing Shareholder may exercise the 2013 Call Option by delivering to the 2013 Facility Agent and the other Existing Shareholders a written notice (the “Exercise Notice”) no later than five business days after receipt of the Calculation Notice, stating that the Exercise Notice (i) is an unconditional and irrevocable offer to purchase from the 2013 Lenders all or part of the Appropriation Shares at a price per share equal to the Purchase Price and (ii) complies with the Shareholders Agreement Amendment, as it may be further amended from time to time.
If the 2013 Call Option is not validly exercised and, therefore, the Existing Shareholders do not acquire the Appropriation Shares, any Existing Shareholder (such Existing Shareholder, a “Dissenting Shareholder”) who refuses to provide pro rata financial support to Telco (in compliance with the terms of the Shareholders Agreement Amendment, as it may be further amended from time to time) to avoid or cure a default under the 2013 Refinancing Facility and to avoid enforcement of the 2013 Pledge will be prevented from making any Share Disposal (as defined below) for a period of six months from receipt of the Calculation Notice (the “Lock-up Period”).
During the Lock-up Period, each Dissenting Shareholder agrees not to sell, transfer or in any way exchange any shares, convertible instrument or other equity or quasi-equity instruments of Telecom Italia (any such activity, a “Share Disposal”), provided, however, that such undertaking shall not apply (i) to Mediobanca and Intesa Sanpaolo when appropriating, buying or selling or otherwise transferring securities and other rights in
the context of the enforcement of the 2013 Pledge, and (ii) to Mediobanca, Intesa Sanpaolo and Generali when appropriating, buying, selling or otherwise transferring securities and other rights in the ordinary course of their trading activities either by taking principal positions resulting from client facilitation or, with respect to Generali, by making investments through separately managed accounts for backing technical reserves. Moreover, nothing in the 2013 Pledged Shares Option Agreement shall constitute a restriction, impediment or limitation whatsoever on any Existing Shareholder, whether a Dissenting Shareholder or not, to purchase or appropriate in any way shares, convertible instrument or other equity or quasi-equity instruments of Telecom Italia (any such activity, a “Share Acquisition”).
The Existing Shareholders further agreed that, during the Lock-up Period, following any enforcement of the 2013 Pledge, they will: (i) use their reasonable efforts to make Share Acquisitions (if any) from the 2013 Lenders in priority to any other market counterparty; and (ii) refrain from any trading activity or the making of any intentional, specific or negative communication (outside of the normal periodic or customary corporate communications of such entity) to either financial market counterparties or the press with respect to Telecom Shares, which would adversely affect any Share Disposal by the 2013 Lenders in the context of an enforcement of the 2013 Pledge.
Item 7. Materials to Be Filed as Exhibits
Exhibit 35: Deed of termination of the 2012 Pledged Shares Option Agreement dated November 27, 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., 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)
Exhibit 36: 2013 Pledged Shares Option Agreement dated November 27, 2013 between Telefónica, S.A., Assicurazioni Generali S.p.A., (on its own account and in the name of and on behalf of the following Generali’s subsidiaries Generali Vie, S.A., Alleanza Toro, S.p.A. Generali Italia, S.p.A. Generali Lebensversicherung AG ), Intesa Sanpaolo, S.p.A. (as shareholder), Mediobanca — Banca di Credito Finanziario, S.p.A. (as shareholder) and Intesasanpaolo, S.p.A. (as lender), Mediobanca- Banca di Credito Finanziario S.p.A. (as lender), Banca IMI S.p.A. (as facility agent).
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.
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Date: December 18, 2013 |
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INTESA SANPAOLO S.p.A. | ||
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By: |
/s/ Amedeo Nodari | |
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Name: |
Amedeo Nodari |
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Title: |
Head of Institutional Investments |
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.
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Name and surname |
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Position with Intesa |
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Present Principal |
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Telecom Shares |
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Gian Maria Gros-Pietro |
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Chairman |
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— |
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Marcello SALA |
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Senior Deputy Chairman of Management Board |
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— |
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— |
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Giovanni COSTA |
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Deputy Chairman of Management Board |
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Professor |
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4,243 (personally owned) |
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Carlo Messina |
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Managing Director and CEO |
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— |
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— |
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Carla Patrizia Ferrari |
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Member of Management Board |
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Executive |
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— |
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Piera Filippi |
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Member of Management Board |
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Attorney |
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— |
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Gaetano Miccichè |
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Member of Management Board |
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— |
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— |
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Francesco Micheli |
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Member of Management Board |
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— |
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— |
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Giuseppe Morbidelli |
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Member of Management Board |
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Professor |
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— |
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Bruno Picca |
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Member of Management Board |
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— |
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— |
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Giovanni Bazoli |
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Chairman of Supervisory Board |
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Professor |
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38,300 (personally owned) |
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Mario Bartolissi |
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Deputy Chairman of Supervisory Board |
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Professor |
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— |
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Gianfranco Carbonato |
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Deputy Chairman of Supervisory Board |
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Entrepreneur |
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— |
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Gianluigi Baccolini |
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Member of Supervisory Board |
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Entrepreneur |
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— |
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Francesco Bianchi |
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Member of Supervisory Board |
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Consultant |
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— |
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Rosalba Casiraghi |
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Member of Supervisory Board |
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Consultant |
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— |
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Carlo Corradini |
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Member of Supervisory Board |
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Consultant |
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320,000 (personally owned) |
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Franco Dalla Sega |
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Member of Supervisory Board |
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Professor |
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— |
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Piergiuseppe Dolcini |
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Member of Supervisory Board |
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Lawyer |
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— |
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Jean-Paul Fitoussi |
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Member of Supervisory Board |
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Professor |
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— |
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Edoardo Gaffeo |
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Member of Supervisory Board |
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Professor |
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— |
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Pietro Garibaldi |
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Member of Supervisory Board |
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Professor |
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— |
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Rossella Locatelli |
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Member of Supervisory Board |
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Professor |
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— |
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Giulio Stefano Lubatti |
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Member of Supervisory Board |
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Consultant |
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— |
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Marco Mangiagalli |
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Member of Supervisory Board |
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Consultant |
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— |
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Iacopo Mazzei |
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Member of Supervisory Board |
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Entrepreneur |
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— |
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Beatrice Ramasco |
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Member of Supervisory Board |
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Chartered Accountant |
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— |
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Marcella Sarale |
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Member of Supervisory Board |
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Professor |
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— |
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Monica Schiraldi |
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Member of Supervisory Board |
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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.
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Name of Intesa |
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Number of |
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Buy Volume |
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High/Low Buy |
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Number of |
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Sell Volume |
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High/Low Sell |
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Banca IMI S.p.A. |
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452 |
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14,644,383 |
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0.7635/0.5955 |
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680 |
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31,338,177 |
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0.747/0.5905 |
EXHIBIT INDEX
Exhibit No.
99.1 Co-Investment Agreement, dated as of April 28, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*
99.2 Amendment to the Co-Investment Agreement and the Shareholders’ Agreement, dated October 25, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*
99.3 Shareholders’ Agreement, dated as of April 28, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*
99.4 By-laws of Olimpia S.p.A. (unofficial English translation).*
99.5 Share Purchase Agreement, dated May 4, 2007, by and among the Investors, Pirelli and Sintonia.*
99.6 The Announcement of the Board of Commissioners of the Brazilian National Telecommunications Agency (Anatel) related to the Transaction, dated October 23, 2007 (unofficial English translation).*
99.10 By-laws of Telco S.p.A. (unofficial English translation).*
99.11 Call Option Agreement, dated November 6, 2007, between Telefónica and Telco.*
99.12 Amendment to Shareholders Agreement and to Bylaws, dated November 19, 2007, by and among Generali, Intesa Sanpaolo, Mediobanca, Sintonia S.A. and Telefónica.*
99.13 Amended and Restated By-laws of Telco (unofficial English translation).*
99.14 Letter of Adherence to the Call Option Agreement by Olimpia S.p.A., dated November 15, 2007.*
99.15 Renewal Agreement, dated October 28, 2009, by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. *
99.16 Amendment Deed to the Call Option, dated October 28, 2009, by and between Telefónica S.A. and Telco S.p.A. *
99.17 Joint press release, dated October 28, 2009, issued by Telefónica S.A., Assicurazioni Generali S.p.A, Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. *
99.18 Telco S.p.A. press release, dated November 26, 2009.*
99.19 Purchase and Sale Agreement, dated December 22, 2009 by and between Telco S.p.A. and Sintonia S.A. (unofficial English translation) *
99.20 Telco S.p.A. press release, dated December 22, 2009. *
99.21 Amendment Agreement, dated January 11, 2010, by and among Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca S.p.A. *
99.22 Option Agreement, dated January 11, 2010, by and among Intesa Sanpaolo S.p.A., Mediobanca -
Banca di Credito Finanziario S.p.A., Unicredit Corporate Banking S.p.A., Société Générale, as lenders, and Telefónica S.A., Assicurazioni Generali S.p.A. (on its own behalf and on behalf of its subsidiaries Generali Vie S.A., Alleanza Toro S.p.A., INA Assitalia S.p.A. and Generali Lebensversicherung AG), Intesa Sanpaolo S.p.A. and Mediobanca - Banca di Credito Finanziario S.p.A. as shareholders. *
99.23 Telco S.p.A. press release, dated January 11, 2010 *
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 *
99.35 Deed of termination of the 2012 Pledged Shares Option Agreement dated November 27, 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., 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)
99.36 2013 Pledged Shares Option Agreement dated November 27, 2013 between Telefónica, S.A., Assicurazioni Generali S.p.A., (on its own account and in the name of and on behalf of the
following Generali’s subsidiaries Generali Vie, S.A., Alleanza Toro, S.p.A. Generali Italia, S.p.A. Generali Lebensversicherung AG ), Intesa Sanpaolo, S.p.A. (as shareholder), Mediobanca — Banca di Credito Finanziario, S.p.A. (as shareholder) and Intesasanpaolo, S.p.A. (as lender), Mediobanca- Banca di Credito Finanziario S.p.A. (as lender), Banca IMI S.p.A. (as facility agent).
* Previously filed.
Exhibit 99.35
To the kind attention of:
Intesa Sanpaolo S.p.A., in its capacity as Lender (as defined below)
Piazza San Carlo n. 156
Torino, Italy
Mediobanca - Banca di Credito Finanziario S.p.A., in its capacity as Lender (as defined below)
Piazzetta Cuccia n. 1
Milan, Italy
UniCredit S.p.A.
CENTRO IB CORPORATE & MULTINATIONAL OVEST
Via Nizza n. 150
10126 Turin, Italy
Société Générale, Milan branch
Via Olona n. 2
Milan, Italy
HSBC Bank plc
8 Canada Square
Canary Wharf
London E14 5HQ
United Kingdom
Milan, 27 November 2013
Reference is made to your letter dated 27 November 2013, with which you propose to us the execution of a deed for the termination of the option agreement entered into between us on 31 May 2012, the contents of which we reproduce in full below:
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To the kind attention of:
Assicurazioni Generali S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries as defined below)
Piazza Duca degli Abruzzi n. 2
Trieste, Italy
Intesa Sanpaolo S.p.A. (in its capacity as Shareholder as defined below)
Piazza San Carlo n. 156
Torino, Italy
Mediobanca - Banca di Credito Finanziario S.p.a. (in its capacity as Shareholder as defined below)
Piazzetta Cuccia n. 1
Milan, Italy
Telefonica S.A.
Gran Via n. 28
28013 Madrid, Spain
Milan, 27 November 2013
Dear Sirs,
Following to our conversations, please find attached herebelow our agreement and understanding in relation to the following:
This deed of termination (the “Deed”) is entered into
BY AND BETWEEN
(1) INTESA SANPAOLO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazza San Carlo No. 156, Torino, Italy, registered with the Companies’ Registry of Turin under No. 00799960158, in its capacity as lender under the facility agreement entered into on 28th May 2012 with Telco S.p.A. (“Intesa Sanpaolo”),
(2) MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazzetta Cuccia No. 1, Milano, Italy, registered with the Companies’ Registry of Milan under No. 00714490158, in its capacity as lender under the
facility agreement entered into 28th May 2012with Telco S.p.A. (“Mediobanca”);
(3) UNICREDIT S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is in Rome at Via degli Specchi n. 16 and administrative office in Milan at Piazza Cordusio, share capital equal to euro 19,647,671,824.53, registered with the Companies’ Registry of Rome, Tax Code and VAT Number no. 00348170101 - Cod. ABI 02008.1, enrolled with the register of banks and member of the Fondo Interbancario di Tutela dei Depositi (“UniCredit”);
(4) SOCIÉTÉ GÉNÉRALE, a bank incorporated under the laws of France, with registered office in Paris, Boulevard Haussmann 29, acting through its Milan branch, with its offices at Via Olona 2, Milan, registered with the Companies’ Registry of Milan under number 8011215158, Milan REA number 748666, registered with the Banks Registry of the Bank of Italy under number 4858 (“SG”);
(5) HSBC Bank plc a company incorporated under the laws of the United Kingdom, with registered office in 8 Canada Square, Canary Wharf, London, E14 5HQ, London, United Kingdom (“HSBC”);
- (Intesa Sanpaolo, Mediobanca, UniCredit, SG and HSBC hereinafter collectively referred to as the “Lenders”);
AND
(6) TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”);
(7) ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at Piazza Duca degli Abruzzi n. 2, Trieste, Italy;
(8) ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Mazzini n. 53;
(9) INA ASSITALIA S.p.A., an Italian company with registered office at Roma, Via Leonida Bissolati, n. 23;
(10) GENERALI LEBENSVERSICHERUNG AG, a German company with registered office at Adenauerring 11, 81737 München, registered at the district court of München under number HRB 177657;
(11) GENERALI VIE S.A., a French company with registered office at Paris, Bld Hausmann 11;
(12) ASSICURAZIONI GENERALI S.p.A. (hereinafter “Generali”), for its own account and in the name and on behalf of the following Generali’s subsidiaries GENERALI VIE S.A., ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A., GENERALI LEBENSVERSICHERUNG A.G., (hereinafter the “Generali Subsidiaries” and together with Generali collectively “AG”);
(13) INTESA SANPAOLO S.p.A, an Italian company with registered office at Piazza San Carlo n. 156, Torino, Italy, in its capacity as shareholder of Telco S.p.A. (“IS”);
(14) MEDIOBANCA S.p.A., an Italian company with registered office at Piazzetta Cuccia n. 1, Milano, Italy, in its capacity as shareholder of Telco S.p.A (“MB”);
- (TE, AG, IS and MB hereinafter collectively referred to as the “Shareholders”);
(the “Parties).
WHEREAS
(A) On 31 May 2012 the Parties have entered into an option agreement (the “Option Agreement”) providing, inter alia, for the right of the Shareholders to call and acquire from the Lenders, at the terms and conditions referred to therein, any Telecom Italia S.p.A. ordinary shares that would have been appropriated by the Lenders in case of enforcement of the pledge (the “Share Pledge”) created under and pursuant to the share pledge agreement entered into on 31 May 2012 between Telco S.p.A., as pledgor, and the Lenders, as secured creditors (the “Share Pledge Agreement”).
(B) On the date hereof, Telco and the Lenders have entered into a deed of release pursuant to which the Share Pledge has been released and the Share Pledge Agreement terminated.
(C) By virtue of the above, the Parties hereby intend to terminate the Option Agreement and release each other from all their respective obligations thereunder.
NOW, THEREFORE
1. The Parties hereby agree and acknowledge that:
(a) the Option Agreement is terminated and no longer in force between themselves as of the date of execution of this Deed;
(b) as a result of the termination of the Option Agreement each Party is irrevocably and unconditionally discharged and released from any of its obligations thereunder.
2. The Parties agree that this Agreement may be disclosed and made public in accordance to applicable laws.
3. This Deed constitutes the entire agreement among the Parties and supersede in full any prior understandings, agreements or representations by or among the Parties, written or oral, with respect to the subject matter hereof.
4. This Deed shall be governed by, and interpreted in accordance with, the laws of the Republic of Italy. Any disputes arising out of or in connection with this Deed shall be submitted by the Parties to the Courts of Milan.
* * * * *
Should you agree with foregoing, please transmit to us a letter containing the above text, duly signed for acceptance.
Best regards,
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Société Générale, Milan Branch |
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HSBC Bank plc |
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We hereby notify you of our acceptance of the agreement set out above.
Best Regards,
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Intesa Sanpaolo S.p.A (in its capacity as Shareholder) | |
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Assicurazioni Generali S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries) | |
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Telefonica S.A. |
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Exhibit 99.36
OPTION AGREEMENT
To the kind attention of:
Intesa Sanpaolo S.p.A., in its capacity as Lender (as defined below)
Piazza San Carlo n. 156
Torino, Italy
Mediobanca - Banca di Credito Finanziario S.p.A., in its capacity as Lender (as defined below)
Piazzetta Cuccia n. 1
Milan, Italy
Banca IMI S.p.A
Largo Mattioli No. 3,
Milan, Italy
Milan, 27 November 2013
Reference is made to your letter dated 27 November 2013, with which you propose an offer for us to execute an Option Agreement, the contents of which we reproduce in full below:
<<
To the kind attention of:
Assicurazioni Generali S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries as defined below)
Piazza Duca degli Abruzzi n. 2
Trieste, Italy
Intesa Sanpaolo S.p.A. (in its capacity as Shareholder as defined below)
Piazza San Carlo n. 156
Torino, Italy
Mediobanca - Banca di Credito Finanziario S.p.a. (in its capacity as Shareholder as defined below)
Piazzetta Cuccia n. 1
Milan, Italy
Telefonica S.A.
Gran Via n. 28
28013 Madrid, Spain
Milan, 27 November 2013
Dear Sirs,
Following to our conversations, please find attached herebelow our agreement and understanding in relation to the following:
This option agreement (the “Agreement”) is entered into
BY AND BETWEEN
(1) INTESA SANPAOLO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazza San Carlo No. 156, Torino, Italy, registered with the Companies’ Registry of Turin under No. 00799960158, in its capacity as lender under the facility agreement entered into on 4 October 2013 with Telco S.p.A. (“Intesa Sanpaolo”),
(2) MEDIOBANCA - BANCA DI CREDITO FINANZIARIO S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Piazzetta Cuccia No. 1, Milano, Italy, registered with the Companies’ Registry of Milan under No. 00714490158, in its capacity as lender under the facility agreement entered into 4 October 2013 with Telco S.p.A. (“Mediobanca” and together with Intesa Sanpaolohereinafter collectively referred to as the “Lenders”);
(3) BANCA IMI S.P.A., a bank incorporated under the laws of the Republic of Italy, whose registered office is at Largo Mattioli No. 3, Milan, Italy, registered with the Companies’ Registry of Milan under No. 04377700150 (“IMI” or the “Facility Agent”);
AND
(4) TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”);
(5) ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at Piazza Duca degli Abruzzi n. 2, Trieste, Italy;
(6) ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Mazzini n. 53;
(7) GENERALI ITALIA S.p.A., an Italian company with registered office at via Marocchesa n. 14, Mogliano Veneto (TV);
(8) GENERALI LEBENSVERSICHERUNG AG, a German company with registered office at Adenauerring 11, 81737 München, registered at the district court of München under number HRB 177657;
(9) GENERALI VIE S.A., a French company with registered office at Paris, Bld Hausmann 11;
(10) ASSICURAZIONI GENERALI S.p.A. (hereinafter “Generali”), for its own account and in the name and on behalf of the following Generali’s subsidiaries GENERALI VIE S.A., ALLEANZA TORO S.p.A., GENERALI ITALIA S.p.A., GENERALI LEBENSVERSICHERUNG A.G., (hereinafter the “Generali Subsidiaries” and together with Generali collectively “AG”);
(11) INTESA SANPAOLO S.p.A, an Italian company with registered office at Piazza San Carlo n. 156, Torino, Italy, in its capacity as shareholder of Telco S.p.A. (“IS”);
(12) MEDIOBANCA S.p.A., an Italian company with registered office at Piazzetta Cuccia n. 1, Milano, Italy, in its capacity as shareholder of Telco S.p.A (“MB”);
· (TE, AG, IS and MB hereinafter collectively referred to as the “Shareholders”);
(the “Parties).
BETWEEN THE PARTIES IT IS AGREED as follows:
1.1 The Facility Agent undertakes to copy the Shareholders in any of the communications to be given to the Borrower in relation to Clause 19.13 (Acceleration) of the facility agreement (the “New Banking Facility Agreement”) entered into on 4 October 2013 between inter alios the Lenders, as lenders, Telco S.p.A., as borrower, and IMI, also as facility agent.
1.2 Without prejudice to 1.1 above, should the Lenders decide to enforce the share pledge created over Telecom Italia S.p.A. ordinary shares pursuant to the provision of the pledge agreement to be entered into pursuant to the New Banking Facility Agreement (the “Share Pledge” and the “Share Pledge Agreement” respectively) (a form of which is attached hereto as Schedule 1) following an acceleration pursuant to and in accordance with Clause 19.13 (Acceleration) of the New Banking Facility Agreement, the following shall apply.
1.2.1 The Facility Agent shall copy each of the Shareholders in the notice enforcing the Share Pledge to be given to Telco S.p.A. pursuant to Clause 6.1 (Escussione del pegno) of the Share Pledge Agreement (the “Enforcement Notice”). Together with the Enforcement Notice or as soon as possible thereafter when the relevant information become available, the Facility Agent will also deliver to the Shareholders a calculation notice (the “Calculation Notice”) stating (i) the aggregate amount outstanding under the New Banking Facility Agreement plus interest accrued and to accrue thereunder and all other costs and expenses, including enforcement costs, up to the Transfer Date (as defined below); (ii) the price at which the Lenders can appropriate the pledged shares pursuant to Clause 6.3 (Determinazione del valore dell’Oggetto del Pegno e delle Obbligazioni Garantite) of the Share Pledge Agreement; and consequently (iii) the number of pledged shares that the Lenders may have the right to appropriate pursuant to the Share Pledge Agreement (the “Appropriation Shares”). It is agreed and understood that, if Clause 6.3(i)(c) and/or Clause 6.3(ii)(c) of the Share Pledge Agreement apply, the Calculation Notice shall be sent after the Facility Agent having obtained the appraisal referred to thereunder. If notwithstanding the good faith efforts of the Facility Agent no appraisal is obtained within 20 Business Days from the Enforcement Notice, the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided in such case that upon enforcement of the pledge in accordance with the Share Pledge Agreement the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any sale process of the Appropriation Shares.
1.2.2 Each Shareholder shall be entitled to call and acquire from the Lenders (the “Right to Call”) the Appropriation Shares at the terms and conditions referred to herein and at a price
per Appropriation Share (the “Purchase Price”) equal to the higher of (i) the price indicated in Clause 1.2.1 (ii) above, and (ii) the amount indicated in Clause 1.2.1 (i) above divided by the aggregate total number of the Appropriation Shares. The Facility Agent shall include the Purchase Price in the Calculation Notice.
1.2.3 In order to exercise its Right to Call, each relevant Shareholder(s) shall deliver to the Facility Agent and the other Shareholders:
(a) a written notice (the “Provisional Exercise Notice”), by no later than 2 (two) Business Days after receipt of the Calculation Notice, stating its non binding offer to purchase from the Lenders all or part of the Appropriation Shares at a price per share equal to the Purchase Price, such Provisional Exercise Notice being delivered for information purpose only and to be confirmed by virtue of the definitive Exercise Notice (as defined in Clause 1.2.3 below).
(b) a written notice (the “Exercise Notice”), by no later than 5 (five) Business Days (the “Exercise Deadline”) after receipt of the Calculation Notice, stating (i) its unconditional and irrevocable offer to purchase from the Lenders all or part of the Appropriation Shares at a price per share equal to the Purchase Price, and (ii) that the Exercise Notice complies with the shareholders agreement in force between the Shareholders, as amended (the “Shareholders Agreement”).
1.2.4 The Exercise Notices shall be served upon IMI in its capacity as Facility Agent (or to any of its successors pursuant to the provisions of Clause 20.13 (Resignation of the Facility Agent) of the New Banking Facility Agreement), copying therein all the other Shareholders.
1.2.5 The Exercise Notices shall be valid and effective only if and to the extent they contain in aggregate offers to purchase the exact amount of the Appropriation Shares. If, instead, the Exercise Notices contain in aggregate offers to purchase a number of Appropriation Shares which is greater or lower than the number of Appropriation Shares, then, the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion. Provided further that, in the event the Exercise Notice(s) contain(s) in aggregate offers to purchase not the exact amount of the Appropriation Shares, the Facility Agent shall allow the Shareholders who have delivered valid Exercise Notice(s) 1 Business Day to cure the mistake by sending a further joint notice signed by all Shareholders that have delivered the Exercise Notice, stating the exact allocation of Appropriation Shares among the Shareholders.
1.2.6 The Shareholders acknowledge that the Facility Agent shall:
(a) verify that the Exercise Notices comply with Clauses 1.2.2 and 1.2.3 above,
(b) proceed with the allocation of the Appropriation Shares to the Shareholders who have delivered a valid Exercise Notice (the “Exercising Shareholders”) as per the indication provided in the relevant Exercise Notices only if and to the extent the
overall number of the Appropriation Shares indicated in the Exercise Notice(s) received is equal to the overall number of Appropriation Shares in accordance with the provisions of preceding Clause 1.2.5.
1.2.7 If the conditions under Clauses 1.2.5 and 1.2.6 above are satisfied, the Lenders shall appropriate the Appropriation Shares at a price per share equal to the Purchase Price under the Share Pledge Agreement on the 8th Business Days from the date of the Calculation Notice and shall then sell and transfer on the same day (the “Transfer Date”) all the Appropriation Shares to the Exercising Shareholders as per the indications received in the Exercise Notices, provided that the transfer of all Appropriation Shares shall occur simultaneously and be conditional upon (i) receipt of a legal opinion issued by reputable legal counsel (at the request of any Exercising Shareholder) confirming valid delivery of the Exercise Notice based on the Shareholders Agreement, validity and enforceability of the relevant transfer deed, no conflict with applicable law and capacity and authority of the Exercising Shareholder(s), and (ii) receipt in full of the Purchase Price multiplied by the number of the Appropriation Shares. If for any reason whatsoever (including for the avoidance of doubt, any order of authority, attachment, seizure or precautionary measure) appropriation under the Share Pledge Agreement or transfer to the Exercising Shareholders cannot take place, then the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided however in such case that (a) should the relevant order of authority, attachment, seizure, precautionary measure consist in an impediment to enforce the pledge (and consequently appropriation and transfer of the Appropriation Shares under this Agreement) (i) should it be removed or cured within 60 days, then the Lenders shall remain bound to this Agreement and shall deliver to the Shareholders a new Enforcement Notice and a new Calculation Notice and each Shareholder shall be entitled to exercised its Right to Call by delivering its Exercise Notice in accordance with this Agreement, (ii) should it NOT be removed or cured within 60 days, then the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any subsequent sale process of the Appropriation Shares provided that if the relevant order of authority, attachment, seizure or precautionary measure described above has been procured by a Shareholder who is also a Dissenting Shareholder (as defined below) , then the provisions of Clause 1.2.18 shall apply (save that the relevant period will commence from the end of the relevant authority, attachment, seizure or precautionary measure); and (b) should the relevant order of authority, attachment, seizure, precautionary measure impede appropriation and/or transfer of the Appropriation Shares under this Agreement but NOT enforcement of the pledge through other means, then the Exercise Notices shall be deemed ineffective and the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion but the Lenders shall ensure, to the maximum extent allowed by applicable laws, that the Shareholders are allowed to participate, pari passu with any other potential acquirer, in any subsequent sale process of the Appropriation Shares provided, that if the relevant order of authority, attachment, seizure or precautionary measure described
above has been procured by a Shareholder who is also a Dissenting Shareholder, then the provisions of Clause 1.2.18 shall apply (save that the relevant period will commence from the end of the relevant authority, attachment, seizure or precautionary measure).
In the event an Exercising Shareholder is also a Lender and the transfer of the Appropriation Shares is to occur in respect of all Exercising Shareholders in accordance with this Clause 1.2.7, then such Lender / Exercising Shareholder (a) shall only purchase a number of Appropriation Shares equal to the positive difference between (i) the number of Appropriation Shares for which it has delivered a valid Exercise Notice; and (ii) the number of Appropriation Shares corresponding to its quota in the Facility Agreement; or (b) shall only sell a number of Appropriation Shares equal to the positive difference between (i) the number of Appropriation Shares corresponding to its quota in the Facility Agreement; and (ii) the number of Appropriation Shares for which it has delivered a valid Exercise Notice.
For the purpose of this Agreement “Dissenting Shareholder” means a Shareholder that refuses to make available to Telco in proportion to its shareholding in Telco, through a modality complying with the relevant terms of the Shareholders Agreement, the fund necessary to Telco to avoid or cure the default under the New Banking Facility Agreement within the timeframe necessary to avoid the enforcement of the Shares Pledge Agreement.
1.2.8 If, as a result of the procedure set out in paragraphs 1.2.2 to 1.2.6 above, the Lenders have not received valid and effective Exercise Notices for all and no more or no less than the Appropriation Shares, the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion.
1.2.9 Any obligation assumed by a Shareholder under this Agreement or the Exercise Notice shall be assumed on a several basis (senza vincolo di solidarietà) with the other Shareholders. It remains understood and agreed that if on the Transfer Date any of Exercising Shareholder(s) does (do) not pay the purchase price pursuant to the relevant Exercise Notice, then the Lenders shall have no obligation to transfer the Appropriation Shares to that or to any other Exercising Shareholder(s), the Exercise Notices shall be deemed ineffective, the Shareholders shall no longer have any right to purchase the Appropriation Shares under this Agreement and the Lenders shall have the right to enforce the Share Pledge at their discretion, provided that the Facility Agent shall allow the Shareholder(s) who have/has not paid the purchase price 1 Business Day to cure its default and shall allow the Shareholder(s) to purchase their corresponding Appropriation Shares, in which case all transfers of Appropriation Shares shall take place one Business Day after the intended Transfer Date and after full payment for all Appropriation Shares has been received in full.
1.2.10 The obligations assumed by the Lenders under this Agreement shall be assumed by each Lender severally from the other Lender (senza vincolo di solidarietà) in proportion to
each respective loans and commitments under the New Banking Facility Agreement at the time of the Transfer Date.
1.2.11 For the avoidance of doubt (as between the Shareholders only) (i) any sale and purchase of Appropriation Shares made pursuant to this Agreement shall be deemed to be permitted under the Shareholders’ Agreement and each Shareholder commits to the other Shareholders to take any step and carry out all actions required to give full implementation to the rights and obligations set out in this Agreement, (ii) the standstill obligations set out in clause 7 (Stand still) of the Shareholders’ Agreement do not apply to any sale and purchase of the Appropriation Shares made pursuant to this Agreement, and (iii) any reference in the Shareholders Agreement to the New Refinancing Facility must be interpreted as a reference to the New Banking Facility Agreement.
1.2.12 The Parties agree that, for the sake of completeness, this Agreement shall be disclosed and made public in accordance to applicable laws.
1.2.13 Each Shareholder, to the maximum extent permitted by applicable laws and regulations and to the extent the Lenders and the Facility Agent have complied with their obligations under this Agreement, waives any and all rights, claims, objections and remedies it may have against the Facility Agent and the Lenders now or in the future in relation to the delivery and transfer of the Appropriation Shares pursuant to the Exercise Notices, the joint correction notice under Clause 1.2.5, the criteria and price on the basis of which the appropriation referred to in Clause 1.2.7 and the Purchase Price have or will be determined.
1.2.14 Each Exercising Shareholder, severally and not jointly and pro-quota in proportion to the percentage of the Appropriation Shares acquired, further undertakes to indemnify and keep harmless each Lender and the Facility Agent and their respective directors and employees (each an “Indemnified Party”), from any prejudices, expenses and damages or liabilities incurred or suffered as a result of an action or lawsuit or claim brought by Telco S.p.A., any of the Shareholders and/or any third party in connection with the delivery and transfer of the Appropriation Shares pursuant to the Exercise Notices and the appropriation of the Appropriation Shares pursuant to Clause 1.2.7. To this purpose (i) the Indemnified Party shall deliver to the Exercising Shareholders notice of the relevant action, claim or lawsuit, specifying reasonable details thereto, (ii) in the event of a claim brought by a third party, before making any payment or settlement, the Indemnified Party shall consult in good faith with the Exercising Shareholders for at least 10 Business Days, including taking advice from reputable international legal counsel, provided that if the payment is to be made earlier than 10 Business Days the consultation period shall be shortened accordingly, (iii) after the Indemnified Party having fulfilled its obligations under (i) and (ii) above, payment of the indemnity hereunder shall be made 1 Business Day prior to the date on which the relevant Indemnified Party declares that it is under an obligation to make a payment or post a collateral in favor of a third party, without raising any objection (solve et repete), (iv) the
Indemnified Party shall keep informed the Exercising Shareholders of the relevant action, lawsuit or claim and will consult and cooperate in good faith with the relevant Exercising Shareholders in pursuing any legal defense, against said action, lawsuit or claim, and (v) after payment by the Exercising Shareholders the Indemnified Party shall return to the relevant Exercising Shareholders any money paid by such Exercising Shareholders and recovered by the Indemnified Party from the third party or released from a collateral.
The Parties agree that (x) the above provisions will only apply to any indemnification which has an overall aggregate amount not exceeding Euro 260 million, while (y) in the event of an indemnification for an overall aggregate amount exceeding Euro 260 million the above provisions (including the “solve and repete” principle) would still apply, but no payment shall be demanded by the Indemnified Party unless such Indemnified Party has received a judgment or order of an authority (even if not final and conclusive) ordering it to pay such third party claim or requiring it to post a collateral.
Without prejudice to the solve et repete provision set forth above, no indemnity shall be payable to an Indemnified Party under this Clause 1.2.14 in relation to prejudices, expenses and damages or liabilities incurred or suffered as a result of such Indemnified Party gross negligence or willful misconduct (dolo o colpa grave), provided for the sake of clarity that the solve et repete will only apply to the extent the legal advice under (ii) above has been obtained.
If an Exercising Shareholder who is under an obligation to indemnify pursuant to this Clause 1.2.14 is also an Indemnified Party, then its indemnity obligation as Exercising Shareholder will be extinguished by way of confusione (pursuant to Article 1253 of the Civil Code) for an amount equal to the amount that it is entitled to receive as Indemnified Party.
1.2.15 The Parties acknowledge and agree that obligations under this Agreement are undertaken by each Party also by way of alea, pursuant to article 1469 of the Italian Civil Code.
1.2.16 The Parties acknowledge and agree that in case of a transfer or assignment from an Existing Lender to a New Lender pursuant to and in accordance with Clause 26.2 (Assignments and transfers by Lenders) of the New Banking Facility Agreement, the transferring Lender shall procure that the New Lender assumes all rights and obligations of the transferring Lender under this Agreement, by executing a letter of accession to this Agreement concurrently with the assignment or transfer pursuant to the New Banking Facility Agreement. The Parties grant the consent to such assumption of rights and obligation by the New Lender pursuant to article 1406 of the Italian Civil Code, with release pursuant to Article 1408 of the Italian Civil Code of the transferring Lender with respect to the portion of obligations hereunder which is assigned or transferred. The Parties further acknowledge and accept that any EIB/BdI/ECB Assignment under Clause 26.3 (Assignment to EIB, Bank of
Italy or to the European Central Bank) of the New Banking Facility Agreement may be made only to the extent that the right of the Shareholders to exercise the call option over all the pledged TI Shares under and pursuant to this Agreement is not prejudiced or impaired in any manner whatsoever.
1.2.17 All notices under this Agreement shall be sent by registered letter anticipated via fax and email at the following addresses:
To Banca IMI S.p.A.
Largo Mattioli no. 3
20121 Milan, Italy
Fax: + 39 02 7261 2333
To the attention of: Giuseppe Botto
E-mail: giuseppe.botto@bancaimi.com; agency.department@bancaimi.com
To Assicurazioni Generali:
Assicurazioni Generali S.p.A.
Piazza Duca degli Abruzzi n. 2
34132 Trieste, Italy
Fax: +39 040 671260
To the attention of: Mr. Giovanni Perissinotto and Mr. Oliviero Pessi
E-mail: giovanni_perissinotto@generali.com and oliviero_pessi@generali.com]
To Intesa:
Intesa Sanpaolo S.p.A.
Piazza Scala n. 6
20121 Milano, Italy
Fax: +39 02 879 43540
To the attention of: Mr. Gaetano Miccichè and Mr. Amedeo Nodari
E-mail: gaetano.micciche@intesasanpaolo.com and amedeo.nodari@intesasanpaolo.com]
To Mediobanca:
Mediobanca - Banca di Credito Finanziario S.p.A.
Piazzetta Cuccia n. 1
20121 Milano, Italy
Fax: +39 02 8829 943
To the attention of: Mr. Clemente Rebecchini and Mr. Francesco Coatti
E-mail: clemente.rebecchini@mediobanca.it and francesco.coatti@mediobanca.it]
To Telefonica:
Telefonica S.A.
C/Ronda de la Comunicacion, s/n, Distrito C, Edificio Central, Planta 1(a)
28050 Madrid, Spain
Fax: +34 91 727 1405 and +34 91 727 1400
To the attention of: Group General Counsel (Ramiro Sánchez de Lerín) and María Luz Medrano
E-mail: secretaria.general@telefonica.es and mmedrano@telefonica.es]
1.2.18 If the option hereunder is not validly exercised and no transfer of Appropriation Shares occurs, each Shareholder who is a Dissenting Shareholder hereby agrees and undertakes that for a period of 6 (six) months from receipt of the Calculation Notice (the “Lock-up Period”), it shall not sell, transfer, exchange either by way of a spot or forward contract or by any other derivative instruments or arrangements of any kind having a similar effect, any shares, convertible instrument or other equity or quasi-equity instruments of Telecom Italia S.p.A. (any such activity, a “Share Disposal”), provided however that such undertaking shall not apply (i) to Mediobanca and Intesa Sanpaolo when appropriating, buying or selling or otherwise transferring shares and other rights in the context of the enforcement of the Shares Pledge Agreement, and (ii) to Mediobanca, Intesa Sanpaolo and Generali when appropriating, buying or selling or otherwise transferring shares and other rights in the context of the ordinary course of their trading activities either by taking principal positions resulting from client facilitation or, as far as Generali is concerned, also by making investments through separately managed accounts (gestione separata) for backing technical reserves. For the avoidance of doubt, nothing in this Agreement shall constitute or be interpreted as a restriction, impediment or limitation whatsoever to the right of each Shareholder, whether a Dissenting Shareholder or not, to purchase or appropriate, either by way of a spot or forward contract or by any other derivative instruments or arrangements of any kind having a similar effect, any shares, convertible instrument or other equity or quasi-equity instruments of Telecom Italia S.p.A. at any time (any such activity, a “Share Acquisition”). The Shareholders agree that, during the Lock-up Period, following any enforcement of the Shares Pledge Agreement, they will: (i) use their reasonable efforts to make Share Acquisitions (if any) from the Lenders in priority to any other market counterparty; and (ii) refrain from any trading activity or the making of any intentional, specific, negative briefing (outside of the normal periodic or customary corporate communications of such entity) to either financial market counterparties or the press with respect to Telecom Italia S.p.A.’s shares, which would adversely affect any Share Disposal by the Lenders (or their relevant agents) in the context of an enforcement of the Shares Pledge Agreement.
1.2.19 This Agreement and all the schedules hereto constitute the entire agreement among the Parties and supersede in full any prior understandings, agreements or representations by or among the Parties, written or oral, with respect to the subject matter hereof.
1.2.20 This Agreement shall be governed by, and interpreted in accordance with, the laws of
the Republic of Italy. Any disputes arising out of or in connection with this Agreement shall be submitted by the Parties to the Courts of Milan.
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Should you agree with foregoing, please transmit to us a letter containing the above text, duly signed for acceptance.
Best regards,
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Intesa Sanpaolo S.p.A (in its capacity as Lender) |
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Mediobanca - Banca di Credito Finanziario S.p.A (in its capacity as Lender) | |
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Banca IMI S.p.A. |
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We hereby notify you of our acceptance of the agreement set out above.
Best Regards,
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Intesa Sanpaolo S.p.A (in its capacity as Shareholder) |
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Mediobanca - Banca di Credito Finanziario S.p.A (in its capacity as Shareholder) | |
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Assicurazioni Generali S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries) | |