SHAREHOLDERS’ AGREEMENT BETWEEN
Exhibit
1
BETWEEN
Pirelli
& C S.p.A., a company organised under the laws of Italy, having its
registered office in Milan, Xxx Xxxxxxx Xxxxx, 00, registered in the Register
of
Enterprises of Milan at no. 00860340157, as represented by its legal
representative Xxxxx Xxxxxxxxxx Provera ( "Pirelli");
AND
Edizione
Holding S.p.A., a company organised under the laws of Italy, having its
registered office in Xxxxxxx, Xxxxxxxxxxx 00, registered in the Register of
Enterprises of Treviso at no. 00778430264, as represented by its legal
representative Xxxxxxxx Xxxxxxxx ("Edizione
Holding"),
and
Edizione Finance International S.A., a company organised under the laws of
Luxembourg, currently owned by 100% of its share capital by Edizione Holding,
having its registered office in Luxembourg, Place x’Xxxxx 1, registered in the
Chamber of Commerce of Luxembourg at no. B77504, as represented by its legal
representative Xxxxxxx Xxxxxxx (individually "Edizione
Finance"
and
together with Edizione Holding, "Edizione");
AND
Olimpia
S.p.A., a company organised under the laws of Italy, having its registered
office in Milan, Xxxxx Xxxxx 000, registered in the Register of Enterprises
of
Milan at no. 03232190961, as represented by its Director Carlo Buora
("Olimpia");
AND
Assicurazioni
Generali S.p.A., a company organised under the laws of Italy, having its
registered office in Trieste, Piazza Xxxx degli Abruzzi 2, registered in the
Register of Enterprises of Trieste at no. 00079760328, as represented by its
legal representatives Xxxxxxxx Xxxxxxx e Xxxxxxx Xxxxxxxxxxxx ("Generali
");
AND
Mediobanca
S.p.A., a company organised under the laws of Italy, with registered office
in
Milan, Xxxxxxxxx Xxxxxx Xxxxxx 0, registered in the Register of Enterprises
of
Milano at no. 00714490158, as represented by its legal representatives Xxxxxxx
Xxxxx e Xxxxxx Xxxxxxxx ("Mediobanca");
For
the
purposes of this shareholder’s agreement (the "Agreement"),
hereinafter individually referred to as a "Party",
and
collectively as "Parties",
and
Pirelli and Edizione jointly indicated as "Olimpia
Shareholders".
WHEREAS
A Olimpia
Shareholders hold an interest in Olimpia, equal to 80% for Pirelli and equal
to
20% for Edizione; in particular, Edizione Holding holds an interest equal to
9,38%, which from the date of effectiveness of the partial demerger already
resolved but not yet executed shall be amalgamated into Sintonia S.p.A, which
shall undertake all the obligations provided for in this Agreement, and Edizione
Finance, which at the time of effectiveness of the demerger shall be controlled
by 100% by Sintonia S.p.A, holds an interest equal to 10,62%.
B Olimpia,
Generali e Mediobanca are shareholders of Telecom Italia S.p.A., a company
having its registered office in Milan, Xxxxxx xxxxx Xxxxxx x. 0, registered
in
the Register of Enterprises of Milan at no. 00488410010 ("Telecom"
or the
"Company"),
and
tie-up in this Agreement the ordinary shares of the Company as hereinafter
indicated:
no.
of ordinary shares
|
%
on ordinary
capital
|
|
Olimpia
|
2,407,345,359
|
17.99%
|
Gruppo
Generali
|
490,580,064
|
3.67%
|
Mediobanca
|
206,464,069
|
1.54%
|
Total
|
3,104,389,492
|
23.20%
|
C The
Parties intend to execute this Agreement which provisions, besides establishing
legally binding obligations, are founded and pursue mutual commitments of
honour.
Now
therefore,
IT
IS
HEREBY AGREED AS FOLLOWS
1. The
Parties intend to ensure continuity and stability of the proprietary structure
and governance of the Telecom Group. The objective is to sustain its industrial
development, both in Italy and abroad, in a context of economic and financial
equilibrium for the best creation of value for Telecom
shareholders.
2. This
Agreement is open to be joined by new parties sharing its spirit and objectives,
subject to the condition that such new parties own an interest of at least
0,5%
of Telecom ordinary share capital and it being understood that the acceptance
of
any such new parties shall be subject to the unanimous approval of all
Parties.
3. The
Telecom shares tied-up in this Agreement are those indicated in whereas B
(percentages are calculated, at the second decimal, against the number of
outstanding ordinary shares of the Company on the date of execution of this
Agreement). Any Telecom shares resulting from the exercise of option rights
or
from the conversion/exercise of financial instruments deriving from the exercise
of the option rights pertaining to the shares already tied-up shall also be
tied-up in this Agreement.
4. There
is
no person who, by virtue of this Agreement, exercises control on the Company
pursuant to article 93 of TUF.
5. This
Agreement is managed by a body (the "Board"),
in
office for the whole duration of the Agreement and made up of an even number
of
members, half of which are appointed by Olimpia and one (1) each by the other
Parties except for Pirelli and Edizione. The Chairman of the Board (the
"Chairman")
is
designated by Olimpia.
2
The
Chairman calls and chairs the meetings of the Board. The post of Secretary
of
the Board is assigned to a person designated by the Chairman approved by the
Parties. The Board shall meet, upon a call of the Chairman delivered with at
least (2) two-days of notice and, in case of urgency, with at least (24)
twenty-four-hours of notice:
-
|
prior
to each ordinary and extraordinary shareholders’ meeting of
Telecom;
|
-
|
on
the initiative of the Chairman or pursuant to a request of at least
two
Parties;
|
-
|
to
resolve upon the admission of new parties to the
Agreement;
|
-
|
to
resolve on the possible termination of the
Agreement.
|
The
Board
resolves on an unanimous basis.
The
Parties undertake to each other that they will cast the vote pertaining to
the
shares tied-up in this Agreement in accordance with the directions unanimously
adopted by the Board. Should any decision relating to matters falling within
the
power of the shareholders’ meeting of Telecom not be taken unanimously by the
Board, the dissenting Party shall have the discretion to exercise freely its
voting rights in Telecom shareholders’ meeting.
6. Save
for
the unanimous consent of all the Parties and for that provided under article
7,
for the duration of this Agreement each Party which has tied-up Telecom shares
to this Agreement as per article 3 undertakes that it shall not transfer (and
shall procure that no transfer is made) of any such Telecom shares except for
a
maximum of 20% of the holding tied-up in this Agreement by each of the Parties
at the time of its execution as per whereas B; save for the possibility to
repurchase any such Telecom shares (which shall be tied-up again to this
Agreement) within said 20% limit. For the purposes of this Agreement, "transfer"
shall mean (i) any sort of sale, both universal and singular, for free and
for
consideration, and (ii) any transaction, act or agreement, universal or
singular, for free or for consideration, by virtue of which it is achieved
directly or indirectly (also through the transfer of holdings in companies
which
hold directly or indirectly Telecom shares tied-up in this Agreement) the direct
or indirect transfer of the ownership (also by way of the execution of
derivatives or other kinds of agreements, which effect is to transfer to third
parties the financial exposure to the ownership of the tied-up shares) or of
any
other right arising out or anyway connected to such shares. It is understood
that any transfer and/or any subsequent repurchase of Telecom shares within
the
above-mentioned limits shall be promptly communicated to the Board and to the
Parties. It is also understood that Olimpia shall not be prevented by this
paragraph from creating a pledge on Telecom shares in fulfilment of obligations
already existing at the date of execution of this Agreement.
In
derogation of the previous paragraph, the transfer of the tied-up shares of
a
Party shall be permitted within the reference group of such Party, as long
as
the transferee is controlled directly or indirectly, by the transferor and
the
transferee undertakes the obligations provided in this Agreement. For the
purposes of this provision, control shall be deemed existing only in the case
provided for by article 2359, paragraph 1, no. 1), of the Italian Civil
Code.
In
further derogation of the first paragraph, should Olimpia intend to transfer
the
entire (and not part of the) interest held by same in Telecom to one or more
third party purchasers, acting in concert with each other, who have submitted
an
offer to buy, Olimpia shall allow that Generali and Mediobanca exercise a right
of first refusal on such interest, by notifying through registered mail to
Generali and Mediobanca the economic terms offered for the purchase of the
interest and the term (which shall in no event be prior to fifteen (15) days
from receipt of the notice) within which the right of first refusal can be
exercised.
3
Generali
and Mediobanca shall be entitled to exercise the right of first refusal jointly,
on a pro-rata
basis,
or individually for the entire participation held by Olimpia in Telecom and
at
the same economic terms offered by the third party purchaser/s, through
registered mail to be received by Olimpia within the term indicated by same
in
accordance with the previous paragraph.
The
closing of the purchase of the shares upon which Generali and/or Mediobanca
shall have exercised the right of first refusal shall be made within thirty
(30)
days from the date on which Olimpia has received the relevant notice of
exercise.
It
is
hereby understood that Generali and/or Mediobanca shall not be entitled to
exercise their right of first refusal where Olimpia shall have obtained that
the
third party purchaser/s commit to purchase, in addition to the Telecom shares
held by Olimpia, also the Telecom shares tied-up to this Agreement by Generali
and/or Mediobanca at the same terms and conditions offered to Olimpia. If such
event, Generali and/or Mediobanca shall be free to elect whether to transfer
the
Telecom shares tied-up by same to this Agreement to the third party purchaser/s,
at the conditions determined in the offer of the third party purchaser/s, or
rather to refuse the offer thus determining the final forfeiture of their right
of first refusal. The decision to accept or rather refuse the offer shall be
notified by Generali and/or Mediobanca to Olimpia through registered mail to
be
received by Olimpia within the term indicated by the latter in the notice
communicating the offer of the third party purchaser/s, which term shall never
be less than fifteen (15) days.
In
the
case of lack of exercise of the right of first refusal or of its forfeiture,
or
in the case of non performance of the obligation to purchase the shares on
which
the right of first refusal has been exercised by them (and save in the latter
case for the right of Olimpia to compensation for any damages), Olimpia shall
be
free to sell its interest to the third party purchaser/s at the conditions
determined in the offer.
In
case
of transfer of the interest of Olimpia to Generali and/or Mediobanca, or rather
to the third party purchaser/s, this Agreement shall be deemed terminated as
from the date of the relevant transfer.
7. Except
for what is provided for under article 6 with respect to the possible transfer
and subsequent repurchase of Telecom shares within the limit of 20% of the
shares tied-up to this Agreement, each of Generali and Mediobanca shall be
entitled to purchase, directly or indirectly, additional Telecom shares (which
shall also be tied-up to this Agreement for the period during which they are
owned) exclusively up to a maximum of 25% of the Telecom shares tied-up to
this
Agreement by each of them as per whereas B, and provided further that this
does
not result in exceeding the relevant thresholds under mandatory tender offer
statute as applicable from time to time. For the calculation of the aforesaid
25% limit, the Telecom shares owned by Mediobanca and Generali on the date
of
execution of this Agreement and not tied-up to same shall be accounted for.
Any
purchase of Telecom shares by any of the Parties shall be previously
communicated to the Board and to the Parties, whereas any transfer shall be
promptly notified to the Board and to the Parties. On the date of execution
of
this Agreement each Party shall communicate to the Board and to the other
Parties the amount of Telecom shares owned and not tied-up, or which may be
purchased pursuant to its own initiative, by virtue of option, conversion or
other kind of rights.
4
8. This
Agreement shall be effective as from the date of execution and shall remain
in
force for a period of three (3) years, and therefore until 18 October 2009
(the
"Three-year
Term").
Starting
from the expiring of the Three-year Term this Agreement shall be deemed to
be
tacitly renewed by three (3) further years and thereafter, unless any Party
has
previously delivered to the other Parties a notice of termination with three
(3)
months of notice.
9. Should
any third parties offer to enter into Olimpia share capital by way of
contribution in kind of an interest in Telecom, which where added to the
interest of the Parties would take the aggregate interest to exceed the
threshold provided for the triggering of a mandatory tender offer, Olimpia
shall
promptly consult with Generali and Mediobanca, which shall be entitled to either
(i) enter into Olimpia share capital by way of contribution in kind of their
Telecom shares at the same conditions offered by the third party, or rather
(ii)
reduce their interest at a level so as to avoid that the threshold for the
mandatory tender offer is passed. Should Generali and Mediobanca not confirm
their commitment to do any of the actions provided for under (i) and (ii) within
the reasonable term indicated by Olimpia, then Olimpia shall be entitled to
accept the offer of the third parties, and from the date of acceptance of the
offer this Agreement shall be terminated.
10. No
amendments to this Agreement shall be effective without the previous unanimous
written approval of all the Parties.
11. All
notices to be made pursuant to this Agreement shall be made in writing through
registered mail, anticipated by fax, to the following addresses or to those
subsequently communicated in writing at the same conditions by each Party to
the
others:
As
for as
Pirelli:
[omissis]
As
for as
Edizione:
[omissis]
Edizione
Finance International S.A.
[omissis]
As
for as
Olimpia:
[omissis]
As
for as
Generali:
[omissis]
As
for as
Mediobanca:
[omissis]
As
for as
the Board
c/o
Secretary of the Agreement
5
12. This
Agreement shall be construed and regulated under the laws of Italy. Any disputes
deriving from or relating to this Agreement shall be resolved by way of ritual
and de
jure
arbitration in accordance with the Regulation of the Chamber of National and
International Arbitration of Milan, which the Parties confirm to know and to
accept in their entirety.
13. This
Agreement does not affect or modify and leaves as they are the existing
agreements between Pirelli and Edizione and Olimpia and other Telecom
shareholders and their relevant rights and obligations, as disclosed in
conformity with applicable laws, which the Parties recognize to know; therefore,
the provisions of this Agreement shall not restrict in any manner the possible
transfer of Olimpia shares, save that Pirelli and Edizione shall communicate
promptly to Generali and Mediobanca any such transfer to third parties. It
is
understood that any amendments to the existing agreements between Pirelli and
Edizione and Olimpia and other Telecom shareholders shall be promptly
communicated to the Parties and the Board.
However,
it is hereby understood that should Pirelli, alone or jointly with Edizione,
intend to sell to one or more third party purchasers, acting in concert, who
have submitted an offer to purchase an interest in Olimpia exceeding 50%, the
provisions concerning the right of first refusal of Generali and/or Mediobanca,
its possible forfeiture and the termination of this Agreement provided for
with
reference to the Telecom shares under paragraphs from 3 to 8 of article 6,
shall
apply mutatis
mutandis
to said
interest in Olimpia.
Milan,
18
October 2006
Pirelli
Edizione
Holding
Edizione
Finance
Xxxxxxx
Xxxxxxxx
Mediobanca
6