AMENDMENT DEED TO THE CALL OPTION
EXHIBIT 16
AMENDMENT DEED TO THE CALL OPTION
This Amendment Deed to the Call Option is entered into on 28 October 2009
BY AND BETWEEN
| 1. | TELEFÓNICA, S.A., a Spanish company with registered office at 28013, Xxxxxx, Xxxx Xxx x. 00,
Xxxxx (“TE”); |
and
| 2. | TELCO, S.P.A., an Italian company with registered office at 20121, Milano, Xxx Xxxxxxxxxxxxxx
x. 0, Xxxxx (“Telco”); |
(collectively the “Parties” and each, individually, a “Party”)
WHEREAS
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 governance of
O, (iii) the appointment of directors in TI, (iv) the transfer of the Telco’s shares and the O and
TI’s shares directly or indirectly owned by Newco and (v) 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 “Shareholders
Agreement”).
Pursuant to Clause 11, the Shareholders Agreement, shall expire on the third anniversary as of the
signing date (the “Expiry Date”).
Pursuant to Clause 8.5(a) of the Shareholders Agreement, on 6 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, O and TI shares held by Telco. Pursuant to Clause 4.1, the Call Option
Agreement shall expire on the Expiry Date of the Shareholder’ Agreement.
On 28 October 2009, SINTONIA S.A., a Luxembourg company with registered office at I, Place x’Xxxxx,
L. 1136 Luxembourg (“SI”) has 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 parties to the Shareholders Agreement, with the exception of SI, have agreed to renew the
Shareholders Agreement (the “New Shareholders Agreement”) for a further period of 3 (three) years
as of 28th April 2010 until 27th April 2013 (which will be deemed as the new
“New Expiry Date” of the New Shareholders Agreement), and the renewal agreement (the “Renewal
Agreement”) has been undersigned on the date hereof.
According to the New Shareholders Agreement, the parties to such agreement are granted with a Right
to Withdraw from the New Shareholder’ Agreement (the “Right to Withdraw”) and to require the other
parties to cause the non-proportional de-merger of Telco (the “De-Merger”).
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 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 April 27, 2013. |
|
| 2. | In the event that (i) following any Alternative Exiting Modality which is agreed by all
Parties as an alternative way to permit SI to exit from Telco pursuant to Article 1 of the
Renewal Agreement, or (ii) 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 SI or to the Party having exercised the
Right to Withdraw (as the case may be), 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 thereunto duly authorized, all in the place and as of the
date first above written.
* * * * *
TELEFONICA S.A.
[/s/ Authorised Signatory] |
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TELCO S.P.A. |
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[/s/ Authorised Signatory] |
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