UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
| Telecom Italia S.p.A. |
(Name of issuer)
| Ordinary shares, nominal value euro 0.55 par value each |
(Title of class of securities)
| 87927W10 |
(CUSIP number)
| Consuelo Barbé Capdevila Telefónica, S.A. Ronda de la Comunicación s/n 28050 Madrid, Spain Telephone: (+34) 91 4823733 |
(Name, address and telephone number of person authorized to receive notices and communications)
| February 29, 2012 |
(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-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
SCHEDULE 13D/A
| CUSIP No. 87927W10 | Page 2 of 7 Pages |
| (1) | Names of reporting persons
TELEFÓNICA, S.A. | |||||
| (2) | Check the appropriate box if a member of a group (see instructions) (a) x (b) ¨
| |||||
| (3) | SEC use only
| |||||
| (4) | Source of funds (see instructions)
WC, BK | |||||
| (5) | Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
¨ | |||||
| (6) | Citizenship or place of organization
THE KINGDOM OF SPAIN | |||||
| Number of shares beneficially owned by each reporting person with: |
(7) |
Sole voting power
[None] | ||||
| (8) |
Shared voting power
3,003,586,907* | |||||
| (9) |
Sole dispositive power
[None] | |||||
| (10) |
Shared dispositive power
3,003,586,907* | |||||
| (11) |
Aggregate amount beneficially owned by each reporting person
3,003,586,907* | |||||
| (12) |
Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
| (13) |
Percent of class represented by amount in Row (11)
22.4% | |||||
| (14) |
Type of reporting person (see instructions)
CO | |||||
| * | 3,003,586,907 is the total number of Telecom Italia S.p.A. shares owned by Telco S.p.A., representing approximately 22.4% of Telecom Italia S.p.A.’s share capital. However, Telefónica, S.A. only owns 46.18% of Telco S.p.A. |
| Page 3 of 7 Pages |
SCHEDULE 13D
This Amendment No. 5 (this “Amendment”) amends the statement on Schedule 13D, dated October 31, 2007, as subsequently amended (the “Schedule 13D”), filed by Telefónica, S.A., a corporation organized under the laws of the Kingdom of Spain (“Telefónica”), with respect to the ordinary shares, euro 0.55 par value per share, of Telecom Italia S.p.A. (the “Telecom Italia Shares”), a company incorporated under the laws of the Republic of Italy (“Telecom Italia”). Except as expressly provided, this Amendment does not modify any of the information previously reported in the Schedule 13D. Capitalized terms used in this Amendment without definition have the meanings ascribed to them in the Schedule 13D.
Introduction
As previously described in Amendment No. 2 and No.3 to Schedule 13D (filed on November 23, 2009 and December 29, 2009 by Telefónica), the terms of SI’s exit were approved on November 26, 2009, and the SI Exit Transaction was concluded on December 22, 2009. In addition, as previously described in Amendment No. 4 to Schedule 13D (filed on January 26, 2010, by Telefónica), on January 11, 2010 Telco refinanced its existing financial indebtedness maturing through the New Refinancing Facility with the Senior Lenders.
On October 6, 2010, Telefónica, Intesa Sanpaolo, Mediobanca, and Generali (collectively, the “Existing Shareholders”), Telco, certain companies controlled by Telefónica, Telecom Italia and certain companies controlled by Telecom Italia entered into a “compromiso” (the “Compromiso”) in order to terminate certain administrative and judicial proceedings in Argentina related to the Telco investment in Telecom Italia. The Compromiso was required in order for the Argentinean authorities to approve the Telco investment in Telecom Italia and it was accepted by the competent Argentinean authorities on October 13, 2010. Pursuant to a deed of amendment dated as of December 10, 2010 (the “2010 Amendment Deed”), the Existing Shareholders implemented the Compromiso by inserting an additional clause into the Shareholders’ Agreement (with such amendments and integrations from time to time agreed, the “Prior Shareholders’ Agreement”) related to the governance of Telco and Telecom Italia with respect to the operations of Telecom Italia, Telefónica and their respective group companies which offer telecommunications, Internet, data, radio, media and substitute services in Argentina (the “Activities in the Argentinean Market”). A copy of the 2010 Amendment Deed is filed as Exhibit 23 hereto.
On February 29, 2012, the Existing Shareholders entered into a renewal agreement (the “Second Renewal Agreement”) in which the parties agreed to terminate, effective the date of the Second Renewal Agreement, the Prior Shareholders’ Agreement and enter into a new shareholders agreement for a period of three years on the same terms and conditions set out in the original Shareholders’ Agreement dated as of April 28, 2007 between the Existing Shareholders and Sintonia S.A., as subsequently amended and supplemented in 2007, 2009, 2010 and pursuant to the 2010 Amendment Agreement, subject to the amendments and integrations set forth therein (the “New Shareholders’ Agreement”). Further, on February 29, 2012, the call option granted to Telefónica to purchase shares of Telecom Italia held by Telco pursuant to Clause 8.5(a) of the Prior Shareholders’ Agreement was extended to February 28, 2015 pursuant to an amendment deed to the Option Agreement (the “Telefónica Option Amendment Deed”) entered into between Telefónica and Telco. A copy of the Second Renewal Agreement is filed as Exhibit 24 hereto and a copy of the Option Amendment Deed is filed as Exhibit 25 hereto.
Page 4 of 7 Pages
In addition, on February 29, 2012, the Existing Shareholders undertook to take actions to ensure the refinancing of Telco’s financial indebtedness through appropriate financial instruments, contractual agreements and/or corporate transactions in proportion to their respective shareholdings of Telco. A copy of the Telco press release related to these events, dated February 29, 2012, is filed as Exhibit 26 hereto.
Items 5, 6 and 7 of the Schedule 13D are hereby amended and supplemented to add the following:
Item 5. Interest in Securities of the Issuer.
Telefónica together with the Italian Investors, through Telco, may be deemed to beneficially own 3,003,586,907 Telecom Italia Shares, representing approximately 22.4% of the outstanding Telecom Italia ordinary shares and approximately 15.4% of the total outstanding Telecom Italia shares. Telefónica 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 Italia Shares. However, Telefónica only owns 46.18% of Telco.
Item 6. Contracts, Agreements, Understandings or Relationships with Respect to Securities of the Issuer.
2010 AMENDMENT DEED
The description of the 2010 Amendment Deed in the Introduction to this Amendment No. 5 is incorporated herein by reference.
As a result of the 2010 Amendment Deed, Telefónica and any person designated by Telefónica in Telco and/or any other company directly controlled or participated by Telco or Telecom Italia are prohibited from participating in, or voting with respect to, or vetoing decisions related to, deliberations in connection with the Activities in the Argentinean Market. In addition, Telefónica is prohibited from naming any person to the management, board of directors or board of auditors in companies directly or indirectly controlled by Telecom Italia and its controlled companies that undertake Activities in the Argentinean Market. Further, Telefónica is prohibited from appointing in Telco and Telecom Italia, any person that is simultaneously a member of the board of directors or an employee of Telefónica de Argentina S.A. or Telefónica Móviles Argentina S.A. Finally, Telefónica is prohibited from exercising direct or indirect control on any company controlled by Telecom Italia which carries out Activities in the Argentinean Market, including pursuant to the provisions of the Shareholders’ Agreement.
The provisions described above related to the Compromiso as well as prohibitions with respect to relationships between the companies controlled by Telefónica and Telecom Italia carrying out Activities in the Argentinean Market will remain in full force and effect in the event of a de-merger of Telco. The 2010 Amendment Deed also amends and integrates the by-laws of Telco to establish certain procedural devices to prohibit Telefónica’s participation in decisions related to Telecom Italia’s Activities in the Argentinean Market.
The foregoing summary of certain material provisions of the 2010 Amendment Deed does not purport to be a full and complete description of such document and is entirely qualified by reference to the full text of such document attached as Exhibit 23 hereto.
Page 5 of 7 Pages
SECOND RENEWAL AGREEMENT
The description of the Second Renewal Agreement in the Introduction to this Amendment No. 5 is incorporated herein by reference.
Pursuant to the Second Renewal Agreement the parties agreed to terminate, effective the date thereof, the Prior Shareholders’ Agreement and enter into the New Shareholders’ Agreement for a period of three years as of February 29, 2012. The expiry date of the New Shareholders’ Agreement is February 28, 2015 (the “New Expiry Date”). The terms of the New Shareholders’ Agreement are substantially the same as the terms of the Prior Shareholders’ Agreement, except for the following modifications.
Each of the Existing Shareholders’ right to require that the other Existing Shareholders proceed with the non-proportional de-merger of Telco pursuant to Article 11 of the New Shareholders’ Agreement will only be exercisable by each of the Existing Shareholders by sending a de-merger notice between August 1, 2014 and August 28, 2014 (the “Final Notice Period”). Following such notice, the de-merger must be completed within a reasonable timeframe, but in no case later than six months following the later of (i) the receipt of the notice or (ii) the receipt of any required authorizations. In the event that one or more Existing Shareholders gives such written notice of de-merger in the last five days of the Final Notice Period, then such period will be extended until September 3, 2014. In the event that one of the Existing Shareholders requires the de-merger of Telco (the “Exiting Party”), the New Shareholders’ Agreement will 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 and (b) with respect to the other Existing Shareholders, that will not have exercised such right to require the de-merger until the New Expiry Date.
In addition to the foregoing right to require the de-merger of Telco pursuant to Article 11 of the New Shareholders’ Agreement, each Existing Shareholder will also have the right to withdraw from the New Shareholders’ Agreement (the “Right to Withdraw”) and require the other Existing Shareholders to cause the non-proportional de-merger of Telco pursuant to Article 11(b) of the New Shareholders’ Agreement by sending a notice between September 1, 2013 and September 28, 2013 (the “Anticipated Notice Period”). Following such notice, the de-merger must be completed within a reasonable timeframe, but in no case later than six months following the later of (i) the receipt of the notice or (ii) the receipt of any required authorizations. In the event that one or more Existing Shareholders give such written notice of de-merger in the last five days of the Anticipated Notice Period, then such period will be extended until October 3, 2013. In the event that one of the Existing Shareholders require the de-merger of Telco, the New Shareholders’ Agreement will 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 and (b) with respect to the other Existing Shareholders not having exercised the Right to Withdraw, not having exercised the right to require the de-merger until the New Expiry Date.
The foregoing summary of certain material provisions of the Second Renewal Agreement does not purport to be a full and complete description of such document and is entirely qualified by reference to the full text of such document attached as Exhibit 24 hereto.
TELEFÓNICA OPTION AMENDMENT DEED
The description of the Telefónica Option Amendment Deed in the Introduction to this Amendment No. 5 is incorporated herein by reference.
Page 6 of 7 Pages
In addition to the extension of the Telefónica Option Agreement to the New Expiry Date, the Telefónica Option Amendment Deed confirmed that in the event that (i) all Existing Shareholders agree to an alternative method for a relevant Exiting Party to exercise its Right to Withdraw, and (ii) the Telco board of directors resolves to transfer Telecom Shares to such Exiting Party, then the Telecom Shares subsequently transferred to such Exiting Party pursuant to such board resolution will no longer be subject to the Option Agreement.
The foregoing summary of certain material provisions of the Option Amendment Deed does not purport to be a full and complete description of such document and is entirely qualified by reference to the full text of such document attached as Exhibit 25 hereto.
Item 7. Materials to be Filed as Exhibits.
| Exhibit 23: | Amendment Deed, 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. | |
| Exhibit 24: | 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. | |
| Exhibit 25: | Amendment Deed to Call Option Agreement, dated February 29, 2012, between Telefónica and Telco | |
| Exhibit 26: | Telco S.p.A. press release, dated February 12, 2012 | |
Page 7 of 7 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: March 12 , 2012
| TELEFÓNICA, S.A. | ||
| By: | /s/ María Luz Medrano Aranguren | |
| Name: María Luz Medrano Aranguren | ||
| Title: Group General Vice Counsel | ||
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.* | |
| 99.5 | 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 Telecom Italiamunications Agency (Anatel) related to the Transaction, dated October 23, 2007 (unofficial English translation).* | |
| 99.10 | By-laws of Telco S.p.A. prior to November 19, 2007 (See exhibit 99.13) (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., Generali Lebensversicherung A.G.), 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 | Purchase and Sale Agreement, dated December 22, 2009 by and between Telco S.p.A. and Sintonia S.A. (unofficial English translation).* | |
| 99.19 | Telco S.p.A. press release, dated December 22, 2009.* | |
| Exhibit No. |
||
| 99.20 | 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.* | |
| 99.21 | 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.* | |
| 99.22 | Telco S.p.A. press release, dated January 11, 2010. * | |
| 99.23 | Amendment Deed, 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. | |
| 99.24 | 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. | |
| 99.25 | Amendment Deed to Call Option Agreement, dated February 29, 2012, between Telefónica and Telco | |
| 99.26 | Telco S.p.A. press release, dated February 12, 2012 | |
| * | Previously filed. |
Exhibit 99.23
AMENDMENT TO SHAREHOLDERS AGREEMENT
This agreement is entered into on 10th December 2010
BY AND BETWEEN
| • | TELEFÓNICA S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”); |
| • | ALLEANZA TORO S.p.A. (formerly Alleanza Assicurazioni S.p.A.), an Italian company with registered office at Torino, via Giuseppe Mazzini n. 53, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.; |
| • | INA ASSITALIA S.p.A., an Italian company with registered office at Roma, Corso d’Italia n. 33, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.; |
| • | GENERALI LEBENSVERSICHERUNG A.G. (formerly Volksfürsorge Deutsche Lebensversicherung A.G.), a German company with registered office at Hamburg (Germany), an der Besenbinderhof n. 43, 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 n. 11, 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 Piazza Duca degli Abruzzi n. 2, Trieste, Italy (“AG” on its own behalf and in the name and behalf of its subsidiaries ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A., GENERALI LEBENSVERSICHERUNG A.G. and GENERALI VIE S.A.); |
| • | INTESA SANPAOLO S.p.A., an Italian company with registered office at Piazza San Carlo n. 156, Torino, Italy, share capital Euro 6,646,547,922.56, registration number on the Torino Company Register and fiscal code 00799960158, VAT number 10810700152, included in Registry of Banks with n. 5361 and Parent Company of banking group “Intesa Sanpaolo” included in the National Register of Banking Groups (“IS”); |
| • | MEDIOBANCA S.p.A., an Italian company with registered office at Piazzetta Cuccia n. 1, Milano, Italy (“MB”); |
(hereinafter collectively referred to as the “Parties” and, individually, as a “Party”)
WHEREAS:
| A. | The Parties jointly own the whole share capital of Telco S.p.A., with registered office at via Filodrammatici n. 3, Milan, Italy, fiscal code n. 05277610969 (“Telco”), which owns 3,003,586,907 shares of Telecom Italia S.p.A., with registered office at Piazza degli Affari 2, Milan, Italy, fiscal code n. 00488410010 (“TI”), equivalent to approximately 22.45% of the ordinary share capital of TI, according to the following proportion: |
| • | TE owns no. 820,569,068 Class B shares of Telco representing approximately 46.18% of Telco’s share capital; |
| • | AG no. 543,364,315 Class A shares of Telco representing approximately 30.58% of Telco’s share capital; |
| • | IS owns no. 206,464,495 Class A shares of Telco representing approximately 11.62% of Telco’s share capital; |
| • | MB owns no. 206,464,495 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. entered into a co-investment agreement (the “Co-investment Agreement”) for the incorporation of Telco and the acquisition by Telco of 100% of the share capital of Olimpia S.p.A. which in turn held 17,99% of the ordinary share capital of TI and a shareholders’ agreement (the “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 the transfer of the TI’s shares owned by Telco, and (iv) the autonomous 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 transaction contemplated in the Co-investment Agreement and Shareholders’ Agreement, the “Telco Transaction”). |
| C. | On 25 October 2007, the Parties and Sintonia S.A. entered into an amendment to the Co-investment Agreement and to the Shareholders’ Agreement in which, inter alia, the Parties acknowledged the content of the decision announced by the Brazilian telecommunications regulator—ANATEL on 23 October 2007 and subsequently published on 5 November 2007 as ANATEL’s Ato no. 68.276, of 31 October 2007 (the “ANATEL Approval”). |
| D. | On 19 November 2007, the Parties and Sintonia S.A. further agreed to amend the Shareholders’ Agreement and the by-laws of Telco (the “Telco By-Laws”) in order to implement the provisions of the ANATEL Approval. |
| E. | On 28 October 2009 the Parties agreed to renew the Shareholders’ Agreement for an additional period of three years (i.e. as of 28 April 2010 until 27 April 2013). |
| F. | On 11 January 2010 the Parties entered into an agreement by which they agreed to support Telco and, in particular, to make available to Telco the funds necessary to avoid or cure any possible default under a new facility which was provided to Telco in the same context by primary financial institutions. |
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| G. | In order to terminate certain administrative and judicial proceedings in connection with the Telco Transaction, on 6 October 2010 the Parties, Telco, certain companies controlled by TE, TI, Telecom Italia International NV and certain other companies controlled by TI entered into a “compromiso” (the “Compromiso”). Such Compromiso was accepted by Resolution Nº 148 of the Secretaría de Política Económica of the Ministerio de Economia y Finanzas Publicas on 13 October 2010 (upon corresponding proposal by the Argentinean antitrust authority, the Comisión Nacional de Defensa de la Competencia (the “CNDC”)), which approved the Telco Transaction, subject to the irrevocable and effective compliance of the Compromiso. |
| H. | For the same reasons indicated in letter G. above, but without prejudice to the Parties’ position that the Telco Transaction does not represent an “economic concentration” pursuant to articles 6 and 8 of the Argentinean Law 25.156, the Parties now wish to amend the Shareholders’ Agreement and the Telco By-Laws, in accordance with provisions of the Compromiso. |
Now, therefore, in consideration of the foregoing premises the Parties hereby
AGREE AND CONVENANT
as follows.
1. The Shareholders’ Agreement is amended by adding thereto a new Paragraph 5 ter, in the following terms:
“5 ter. Specific provisions relating to TI and TE’s telecommunication services providers in the Argentinean market
TE controls companies (including Telefónica de Argentina S.A.) that carry out in Argentina activities that are the same or similar to those respectively carried out by Sofora Telecomunicaciones S.A., Nortel Inversora S.A., Telecom Argentina S.A., Telecom Personal S.A., Telecom Italia Sparkle S.p.A., Telecom Italia Sparkle Luxembourg S.A., Lan Med Nautilus Ltd. and Latin American Nautilus Argentina, S.A.
Specifically with respect to such activities that, in Argentina, are carried out concomitantly, in the markets of telecommunications, Internet, data, radio, media and substitute services in accordance with the Argentinean antitrust regulation by (i) TE or its controlled companies, and (b) TI, 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 S.A. or Telecom Personal S.A. (the “Activities in the Argentinean Market”), and as far as the Compromiso is in force in accordance with its Clause Nine (Vigencia), the Parties agree that:
3
(i) TE, with respect to the shareholders’ meetings, as well as any person designated by TE as member respectively of the boards of directors, the boards of managers, the boards of auditors/control and/or any person designated by TE as officer or member of any other corporate body with similar duties of Telco and/or of any other company directly or indirectly controlled or participated by Telco or TI, including Sofora Telecomunicaciones S.A., Nortel Inversora S.A., Telecom Argentina S.A. and Telecom Personal S.A., shall be prohibited from participating in, voting or vetoing with respect to any matters related to these companies concerning their relevant Activities in the Argentinean Market. “Participating in” in this paragraph means that TE may not be present, whether directly or indirectly, in person or, through its legal representatives or its employees, or by any means of communication such as telephone conferences and/or other electronic or telematic means.
(ii) TE shall be prohibited from designating any member of the board of directors, manager, member of the board of auditors/control, as well as any officer or any member of any other corporate body having similar duties, in companies which carry out Activities in the Argentinean Market, directly or indirectly controlled by TI and its controlled companies;
(iii) in the event of a de-merger of Telco, the conditions imposed on TE towards TI and its controlled and controlling companies (if any), as well as the prohibition with respect to the relationships between the companies controlled by TE and TI which carry out Activities in the Argentinean Market, shall remain in full force and effect;
(iv) any amendment to the Shareholders’ Agreement or to Telco’s By-Laws which relates to the Compromiso and/or which has impact on the Argentinean market shall be submitted to the prior approval of CNDC;
(v) TE shall be prohibited, in accordance with the Argentinean legislation, from exercising directly or indirectly control on any company controlled by TI which carry out Activities in the Argentinean Market, even in the event of exercise by TE of the rights referred to in articles 6 and 8.5 of the Shareholders’ Agreement;
(vi) Telco’s By-Laws shall be amended in order to provide that in the event, and to the extent, that the Telco’s board of directors has to review any matter regarding the Activities in the Argentinean Market, the persons in charge of preparing the board meetings’ agendas and the chairman of the board of directors of Telco shall divide the topics of the agenda as follows: (i) one agenda for the meeting in which the participation of TE, through the board members designated by TE, is allowed, and (ii) another agenda for the meeting in which the board members designated by TE are not allowed to participate. The meetings in which TE’s members of the board of directors are not allowed to participate shall be those relating to the Activities in the Argentinean Market of TI and of companies directly or indirectly controlled by TI;
(vii) TE shall be prohibited from appointing in Telco and in TI persons who are at the same time either members of the board of directors or employees of Telefónica de Argentina S.A. or of Telefónica Móviles Argentina S.A.
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2. The Parties further agree to integrate the Telco By-Laws by adding thereto a new Paragraph 5.1.2 and a new Paragraph 16.4, the contents of which are attached hereto as Annex “A”.
3. Except as provided for in Sections 1 and 2 above, all the other provisions, terms and conditions set forth in the Co-investment Agreement, the Shareholders’ Agreement and the Telco By-Laws, all such documents as subsequently amended and restated, shall remain unchanged and are hereby expressly ratified and confirmed by the Parties.
* * * * *
TELEFÓNICA, S.A.
ASSICURAZIONI GENERALI S.p.A. (for its own account and in the name and the behalf of ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A, GENERALI LEBENSVERSICHERUNG A.G. e GENERALI VIE S.A.)
INTESA SANPAOLO S.p.A.
MEDIOBANCA S.p.A.
5
Annex A
NEW CLAUSES FOR INCLUSION IN THE BY-LAWS OF TELCO S.P.A., IN IMPLEMENTATION OF THE TERMS OF THE COMPROMISO AND THE DEED OF AMENDMENT:
“5.1.2 For so long as the limitations and restrictions that have been assumed towards the Argentinian authorities remain effective and in force, the holders of Class B Shares shall not be entitled to vote in relation to any matter that regards the activities of companies directly or indirectly controlled by Telecom Italia Spa that carry out Activities in the Argentinean Market, including Sofora Telecomunicaciones S.A., Nortel Inversora S.A., Telecom Argentina S.A. and Telecom Personal S.A., and consequently the holders of Class B Shares shall not be entitled to participate in shareholders’ meetings at the moment when such resolutions must be discussed and/or voted upon.
For purposes of this clause 5.1.2 and clause 16.4 Activities in the Argentinean Market shall mean such activities that, in Argentina, are carried out concomitantly, in the markets of telecommunications, Internet, data, radio, media and substitute services in accordance with the Argentinean antitrust regulation by (i) holders of Class B Shares or their controlled companies, and (b) 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 S.A. or Telecom Personal S.A.”
“16.4 For so long as the limitations and restrictions that have been assumed towards the Argentinian authorities remain effective and in force, in accordance with the principles established by article 2391 of the Italian Civil Code, the directors appointed from the list submitted by the holders of Class B Shares, and the officers appointed at the request of holders of Class B Shares, shall not be entitled to participate in discussions regarding Activities in the Argentinean Market carried out or to be carried out by Telecom Italia S.p.A., Telecom Italia International N.V. or companies directly or indirectly controlled by Telecom Italia S.p.A. or Telecom Italia International N.V. that conduct Activities in the Argentinean Market, including Sofora Telecomunicaciones S.A., Nortel Inversora S.A., Telecom Argentina S.A. and Telecom Personal S.A., and, consequently they shall not be entitled to vote, or to veto, any matters on the agenda of meetings of the Board of Directors, or of any internal committee or other corporate body with similar responsibilities, regarding such topics.
For the purposes of this clause 16.4, and for so long as the limitations and restrictions that have been assumed towards the Argentinean authorities remain effective and in force, prior to any meeting of the Company’s Board of Directors, and to the extent the Board of Directors has to review any matter regarding the Activities in the Argentinean Market, the President of the Board of Directors, or such other person as may be responsible for preparing the agenda, shall have the obligation of preparing two separate agendas as follows: (i) one agenda for the meeting in which the directors appointed from the list presented by the holders of Class B Shares are allowed to participate; and (ii) another agenda for the meeting in which the directors appointed from the list presented by the Class B shareholders are not allowed to participate. The meetings in which the directors appointed from the list presented by the holders of Class B Shares are not allowed to participate shall be those relating to the Activities in the Argentinean Market of Telecom Italia S.p.A. and of companies directly or indirectly controlled by Telecom Italia S.p.A. that carry out Activities in the Argentinean Market.”
Exhibit 99.24
This renewal agreement (the “Second Renewal Agreement”) is entered into on 29 February 2012
BY AND BETWEEN
| • | TELEFÓNICA S.A., a Spanish company with registered office at 28013, Madrid, Gran Via n. 28, Spain (“TE”); |
| • | ALLEANZA TORO S.p.A., an Italian company with registered office at Torino, via Giuseppe Mazzini n. 53, Italy, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.; |
| • | INA ASSITALIA S.p.A., an Italian company with registered office at Rome, Corso d’Italia n. 33, Italy, for the purposes of this agreement represented by Assicurazioni Generali S.p.A.; |
| • | GENERALI LEBENSVERSICHERUNG A.G., a German company with registered office at Hamburg, an der Besenbinderhof n. 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 n. 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 n. 2, Italy (“Generali”), on its own behalf and in the name and on behalf of its subsidiaries ALLEANZA TORO S.p.A., INA ASSITALIA 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 n. 156, Italy (“IS”); |
| • | MEDIOBANCA S.p.A., an Italian company with registered office at Milan, Piazzetta Cuccia n. 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 n. 3, Italy, fiscal code n. 05277610969 (“Telco” or “Newco”) 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 n. 00488410010 (“TI”), equivalent to approximately 22.39% of the ordinary share capital of TI, according to the following proportion: |
| • | TE owns no. 820,569,068 Class B shares of Telco representing approximately 46.18% of Telco’s share capital; |
| • | AG owns no. 543,364,315 Class A shares of Telco representing approximately 30.58% of Telco’s share capital; |
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| • | IS owns no. 206,464,495 Class A shares of Telco representing approximately 11.62% of Telco’s share capital; |
| • | MB owns no. 206,464,495 Class A shares of Telco representing approximately 11.62% of Telco’s share capital. |
| B. | On 28th 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 shareholders’ agreement—as subsequently amended and supplemented with the first deed of amendment dated 25th October 2007 and with the second deed of amendment dated 19th November 2007—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 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 (with the amendments and integrations from time to time agreed, as indicated in recital D. below, the “Shareholders’ Agreement”). |
| C. | On 28th October 2009, SI required the non-proportional de-merger of Telco, pursuant to Article 11(b) of the 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 Shareholders’ Agreement. The exit of SI from the Shareholders’ Agreement and Telco’s shareholding (the “SI Exit”) was then agreed with an alternative modality and completed on 22 December 2009. |
| D. | On 28th October 2009, by means of the first renewal agreement (the “First Renewal Agreement”) the Parties agreed to amend and renew the Shareholders’ Agreement for an additional period of 3 (three) years, starting from 28th April 2010 until 27th April 2013 and, following completion of SI Exit, entered into further deeds of amendment dated 11th January 2010 and 10th December 2010 (the Shareholders’ Agreement as a result of the aforesaid amendments and renewal is hereby referred to as the “Existing Shareholders’ Agreement”). |
| E. | The Parties now wish to enter into a new shareholders’ agreement, while terminating the Existing Shareholders’ Agreement, for a period of 3 (three) years as of the date hereof, at the same terms and conditions of the Existing Shareholders’ Agreement, except for the further amendments and integrations set forth below. |
| F. | Unless differently provided herein, the terms and expressions used with initials in capital letter in this Second Renewal Agreement shall have the same meaning attributed to them in the Existing Shareholders’ Agreement. |
Now, therefore, in consideration of the foregoing premises the Parties hereby
AGREE AND CONVENANT
as follows.
1. The Parties hereby agree (x) to terminate as of the date hereof the Existing Shareholders’ Agreement and (y) to enter into, for a period of 3 (three) years starting from the date hereof, a new shareholders’ agreement, at the same terms and conditions set out in the Existing Shareholders’
2
Agreement (i.e. at the terms and conditions of the Shareholders’ Agreement as subsequently amended and supplemented in 2007, 2009, 2010), to be considered hereby incorporated and transcribed, with the further amendments and integrations indicated in the following points (i), (ii) and (iii) (the “New Shareholders’ Agreement”):
| (i) | The New Shareholders’ Agreement shall expire on 28 February 2015 (the “New Expiry Date”). |
| (ii) | Each of the Parties’ right to require in writing to the other Parties the non-proportional de-merger of Telco not later than 6 (six) months prior to the New Expiry Date pursuant to Article 11 of the New Shareholders’ Agreement, will only be exercisable by each of the Parties by sending the de-merger notice in the period between 1 August 2014 and 28 August 2014 (the “Final Notice Period”), upon which the Parties shall be bound to cause Telco to complete the 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 New Shareholders’ Agreement. It is hereby agreed and understood that in the event the de-merger were required by one or more Parties during the last 5 (five) days of the Final Notice Period, then the Final Notice Period shall be extended to 3 September 2014. In case the de-merger of Telco were required, then the New 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; (b) with respect to the other Parties not having exercised the right to require the de-merger, until the New Expiry Date. |
| (iii) | In addition and without prejudice to what is already provided for in Article 11 of the New Shareholders’ Agreement in relation to each Party’s right to require the de-merger prior to the New Expiry Date (as confirmed and clarified under (ii) above), each of the Parties shall also have the right to withdraw from the New Shareholders’ Agreement (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 New Shareholders’ Agreement by sending the relevant notice in the period between 1 September 2013 and 28 September 2013 (the “Anticipated Notice Period”) upon which the Parties shall be bound to cause Telco to complete the de-merger within a reasonable 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 New Shareholders’ Agreement. It is hereby agreed and understood that in the event the de-merger were required by one or more Parties during the last 5 (five) days of the Anticipated Notice Period, then the Anticipated Notice Period shall be extended to 3 October 2013. In case the de-merger of Telco were required, the Right to Withdraw shall be effective for the Exiting Party as of the completion of the de-merger, provided that the New 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, and (b) with respect to the other Parties not having exercised the Right of Withdraw, until the New Expiry Date. |
2. Except as provided for in Sections 1 above, all the other provisions, terms and conditions set forth in the Existing Shareholders’ Agreement—including, for the avoidance of doubts, TE’s Call Option under Article 8.5(a) of the Existing Shareholders’ Agreement, as implemented in the Call
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Option Agreement entered into by and between TE and Telco on 6th November 2007 and subsequently amended and supplemented—shall remain unchanged in the New Shareholders’ Agreement and are hereby expressly ratified and confirmed by the Parties.
* * * * *
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., INA ASSITALIA S.p.A, GENERALI LEBENVERSICHERUNG A.G. and GENERALI VIE S.A.)
____________________________
INTESA SANPAOLO S.p.A.
____________________________
MEDIOBANCA S.p.A.
____________________________
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Exhibit 99.25
This Amendment Deed to the Call Option is entered into on 29 February 2012
BY AND BETWEEN
| 1. | TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Madrid, Gran Vía n. 28, Spain (“TE”); |
And
| 2. | TELCO, S.P.A., an Italian company with registered office at 20121, Milano, Via Filodrammatici n. 3, Italy (“Telco”); |
(collectively, the “Parties” and each, individually, a “Party”)
WHEREAS
| A. | On 28th April 2007, TE, ASSICURAZIONI GENERALI S.p.A., SINTONIA S.A., INTESA SANPAOLO S.p.A., MEDIOBANCA S.p.A., entered into a shareholders’ agreement – as subsequently amended and supplemented with the first deed of amendment dated 25th October 2007 and with the second deed of amendment dated 19th November 2007 – by means of which they established the principles relating inter alia to (i) the corporate governance of Telco, (ii) the appointment of directors in TI, (iii) the transfer of the Telco’s shares and indirectly of the TI’s shares owned by Telco and (iv) the autonomous 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 (hereinafter, with the amendments and integrations from time to time agreed, as indicated in recital E. below, the “Shareholders’ Agreement”). |
| B. | Pursuant to Clause 11, the Shareholders’ Agreement shall expire on the third anniversary as of the signing date (the “Expiry Date”). |
| C. | Pursuant to Clause 8.5(a) of the Shareholders’ Agreement, on 6th November 2007 Telco and TE signed a call option agreement (the “Call Option”) granting to TE the right to purchase, at the conditions set forth therein, TI shares held by Telco. Pursuant to Clause 4.1, the Call Option shall expire on the Expiry Date of the Shareholders’ Agreement. |
| D. | On 28th October 2009, SINTONIA S.A.(“SI”) required the non-proportional de-merger of Telco, pursuant to Article 11(b) of the Shareholders’ Agreement, thereby becoming an Exiting Party in relation thereto. The exit of SI from the Shareholders’ Agreement and Telco’s shareholding (the “SI Exit”) was then agreed with an alternative modality and completed on 22nd December 2009. |
| E. | The parties to the Shareholders’ Agreement, with the exception of SI, agreed on 28th October 2009, by means of the first renewal agreement (the “First Renewal |
| Agreement”) to amend and renew the Shareholders’ Agreement for an additional period of 3 (three) years as of 28th April 2010 until 27th April 2013 and, following completion of SI Exit, entered into further deeds of amendment dated 11th January 2010 and 10th December 2010 (the Shareholders’ Agreement as a result of the aforesaid amendments and renewal is hereby referred to as the “Renewed Shareholders’ Agreement”). |
| F. | On the same 28th October 2009, TE and Telco by means of an amendment deed to the Call Option agreed, inter alia, to extend the effectiveness of the Call Option, at the same terms and conditions set out therein, until the new expiry date of the Renewed Shareholders’ Agreement, falling on 27th April 2013. |
| G. | On the date hereof, by means of a second renewal agreement (the “Second Renewal Agreement”), the parties to the Renewed Shareholders’ Agreement agreed (x) to terminate as of the date hereof the Renewed Shareholders’ Agreement and (y) to enter into a new shareholders’ agreement, at the same terms and conditions set out in the Renewed Shareholders’ Agreement, except for the further amendments and integrations set forth in the Second Renewal Agreement (the “New Shareholders’ Agreement”) for a period of 3 (three) years as of 29 February 2012 until 28 February 2015 (which will be deemed as the new “New Expiry Date” of the New Shareholders’ Agreement). |
| H. | According to the New Shareholders’ Agreement, the parties to such agreement are granted with a Right to Withdraw from the New Shareholders’ Agreement (the “Right to Withdraw”) and a right to require the other parties to cause the non-proportional de-merger of Telco (the “De-Merger”). |
| I. | Unless differently provided herein, the terms and expressions with initials in capital letters shall have the same meaning as the one they are given in the New Shareholders’ Agreement and in the Call Option. |
Now, therefore, in consideration of the foregoing premises, the Parties hereby
AGREE AND COVENANT
as follows:
| 1. | The Parties hereby irrevocably acknowledge and agree (i) to partially amend Clause 4.1 of the Call Option currently in force and, as a consequence, (ii) that the Call Option shall remain in full force and effect at the terms and conditions set out therein until the New Expiry Date of the New Shareholders’ Agreement, falling on 28 February 2015. |
| 2. | In the event that following an alternative way which has been agreed by all Parties to permit a Party that has exercised the Right to Withdraw to exit from Telco, the Board of Directors of Telco resolves to transfer TI shares to the Party having exercised the Right to Withdraw, then in such case the Call Option shall not apply to such TI Shares being the object of such Board resolution. |
| 3. | Except as otherwise expressly provided for herein, no other amendments or supplements to the Call Option are made. |
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment Deed to be executed by their respective officers or representatives thereto duly authorized, all in the place and as of the date first above written.
*****
TELEFÓNICA, S.A.
____________________________
TELCO S.P.A.
____________________________
Exhibit 99.26
TELCO S.p.A.
Share capital: euro 2.185.531.062,03 fully paid up
PRESS RELEASE
Telco S.p.A. informs that its shareholders (Assicurazioni Generali Group, Intesa Sanpaolo, Mediobanca and Telefonica) have agreed to renew the Shareholders’ Agreement for 3 years, that is, until 28 February 2015, replicating the existing terms and conditions, including:
| • | the right to request the pro-rata demerger by giving notice between 1 August and 28 August 2014; |
| • | the right to request early withdrawal and related pro-rata demerger, with notice to be given between 1 September and 28 September 2013, and execution to follow in the subsequent 6 months. |
Telco shareholders have also undertaken to refinance the entire amount of Telco’s debt falling due pro-rata to their stake in the company’s share capital in the most appropriate technical forms. The shareholders’ commitment shall be without prejudice to Telco’s access to alternative sources of financing from the credit markets, it being understood that in such case the shareholders’ commitment shall be reduced accordingly. In this respect Telco has resolved to initiate discussions with the banking system to agree the terms and conditions for a refinancing package.
Milan, 29th February 2012
Registered office: Via Filodrammatici 3, Milan, Italy
Tax identification code/VAT no. and Registration no. in Milan Companies’ Register no.: 05277610969