TO BE ENTERED INTO AS EXCHANGE OF CORRESPONDENCE] This option agreement (the "Agreement") is entered into on 11th January 2010 BY AND BETWEEN
Exhibit
24
[TO BE
ENTERED INTO AS EXCHANGE OF CORRESPONDENCE]
This
option agreement (the "Agreement") is entered into
on
11th
January 2010
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 Xxxxxx Xxx Xxxxx Xx. 000,
Xxxxxx, Xxxxx, registered with the Companies' Registry of Turin under No.
00799960158, in its quality as lender under the facility agreement entered into
on even date hereof 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 Xxxxxxxxx Xxxxxx Xx. 0, Xxxxxx,
Xxxxx, registered with the Companies' Registry of Milan under No. 00714490158, in its quality as lender under the
facility agreement entered into on even date hereof with Telco S.p.A. ("Mediobanca");
(3) UNICREDIT
CORPORATE BANKING S.P.A. Società per Azioni, with Sede Legale e Direzione renerale in
Verona, Xxx Xxxxxxxxx 0, Share Capital euro 6,604,173,696.00 registered with the
Companies' Registry of Verona, Tax Code and VAT Number n° 03656170960 - Cod. ABI
03226.8, a company with a sole shareholders enrolled in the register of banks
and belonging to the Gruppo Bancario UniCredito Italian enrolled in the register
of the banking groups under n. 3 135.1, member of the Fondo Interbancario xx
Xxxxxx dei Depositi (UCB");
(4) SOCIÉTÉ
GÉNÉRALE, a company incorporated under the laws of France, with registered
office in Paris, Boulevard Haussmann 29, acting through its Milan branch, with
its offices at Xxx Xxxxx 0, Xxxxx, registered with the Companies Registry of
Milan under number 0000000000, Xxxxx XXX number
748666, registered with the Banks Registry of the Bank of Italy under number
4858 ("SG")
(Intesa
Sanpaolo, Mediobanca, UCB and SG hereinafter collectively referred as
the "Lenders”);
AND
(5) TELÉFONICA,
S.A., a Spanish company with registered office at 28013, Xxxxxx, Xxxx Xxx
x. 00, Xxxxx ("TE”);
(6) ASSICURAZIONI
GENERAL1 S.p.A., an Italian company with registered
office at Xxxxxx Xxxx xxxxx Xxxxxxx x. 0, Xxxxxxx,
Xxxxx;
(7) ALLEANZA TORO
S.p.A., an Italian company with registered office at Torino, via Mazzini n.
53;
(8) INA ASSITALIA
S.p.A., an Italian company with registered office at Roma, Corso d'Italia n.
33;
1
(9) GENERALI
LEBENSVERSICHERUNG A.G., a German company with registered office at Hamburg
(Germany), an der Besenbinderhof n. 43;
(10) GENERAL1 VIE
S.A., a French company with registered office at Paris, Bld Xxxxxxxx
11;
(11) ASSICURAZIONI
GENERAL1 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 "GeneraIi Subsidiaries" and
together with Generali collectively "AG");
(12) INTESA
SANPAOLO S.p.A, an Italian company with registered office at Xxxxxx Xxx Xxxxx x.
000, Xxxxxx, Xxxxx, in its quality as shareholder of Telco S.p.A. ("IS");
(13) MEDIOBANCA -
BANCA DI CREDITO FINANZIARIO S.p.A.- Banca di Credito Finanziario, an Italian
company with registered office at Xxxxxxxxx Xxxxxx x. 0, Xxxxxx, Xxxxx, in its
quality as shareholder of Telco S.p.A ("MB");
(TE, AG,
IS and MB hereinafter collectively referred as the "Shareholders");
(the
"Parties).
BETWEEN THE PARTIES IT IS AGREED
as follows:
1.1 The
Facility Agent (as defined below) undertakes to copy the Shareholders in any of
the communications to be given to the Borrower in relation to Clause 1912 (Acceleration) of the
facility agreement entered into on even date hereof between inter alia the Lenders
and Telco S.p.A.
and Unicredit Corporate Banking S.p.A. - the “Facility Agent”- (the "New Banking Facility
Agreement"),
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
19.12 of the New Banking Facility Agreement, the following shall
apply.
1.2.1 The
Facility Agent shall copy the shareholders of Telco (each a "Shareholder") in
the notice enforcing the Share Pledge to be given to Telco pursuant to Clause
6.1 of the Share Pledge Agreement (the "Enforcement
Notice"). Together with the Enforcement Notice, 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 of the Share Pledge Agreement; and consequently (iii) the number of
pledged shares that the Lenders may have the
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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 and the appointment of a second investment bank pursuant to Clauses
6.3(i)(c) and 6.3(ii)(c) no appraisal is obtained within 65 Business Days from
the Enforcement Notice the Shareholders shall no longer have any right to
purchase 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") 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), and (ii) the amount
indicated in Clause 1.2.1 (i) 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 written notice (the "Exercise Notice"), no later
than 5 Business
Days (the "Exercise
Deadline") after receipt of the Calculation Notice, stating (i) its
unconditional and irrevocable offerr 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 given to Unicredit Corporate Banking S.p.A. in its capacity as
Facility Agent (or to any of its successors pursuant to the provisions of Clause
20.13 of the New Banking Facility Agreement), copy to 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
Shareholders.
1.2.6 The
Shareholders acknowledge that the Facility Agent shall:
3
(aa) verify that the Exercise
Notices comply with Clauses 1.2.2 and 1.2.3 above,
(bbb) 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 Shareholders), 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 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; 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 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.
In the
event an Exercising Shareholder is also a Lender and transfer of the
Appropriation Shares is to occur in respect of
all Exercising Shareholders in
4
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.
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 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. The Parties agree that any cost, taxes and expense
of the transfer of Appropriation Shares to my Exercising Shareholders in
accordance with this Agreement shall be borne by the Exercising Shareholders in
proportion of the Appropriation Shares acquired by each of them.
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 at the time of the Transfer Date.
1.2.1
1 For the avoidance of doubt 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 a11 actions required to give full implementation
to the rights and obligations set out in this 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
5
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, 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) 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 h m 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 ef repete will only apply to the
extent the legal advice under (ii) above has been obtained.
6
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 transfer 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 I406 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.
1.2.17 All
notices under this Agreement shall be sent by registered letter anticipated via
fax and email at the following addresses:
To the Unicredit Corporate
Banking S.p.A.
Filiale
Multinational Nord
xxx Xxxxx
000
00000
Xxxxx, Xxxxx
Fax: 000
00000000 or 57138146
To the
attention of: Xxxxxxxxxxx Xxxxxx/Xxxxxxxxxx Xxxxx/ Xxxxxxxxx
Xxxxxxxx
E-mail:
xxxxxxxxxxx.xxxxx@xxxxxxxxxxxxxx.xx, xxxxxxxxxx.xxx0x@xxxxxxxxxxxxxx.xx,
xxxx.xxxxx@xxxxxxxxxxxxxx.xx, xxxxxxxxx.xxxxxxxx@xxxxxxxxxxxxxx.xx.
To Assicurazioni
Generali:
Xxxxxx
Xxxx xxxxx Xxxxxxx x. 0
00000
Xxxxxxx, Xxxxx
Fax: x00
000 000000
To the
attention of: Xx. Xxxxxxxx Xxxxxxxxxxxx and Xx. Xxxxxxxx Pessi
E-mail:
xxxxxxxx_xxxxxxxxxxxx@xxxxxxxx.xxx and
xxxxxxxx_xxxxx@xxxxxxxx.xxx
To
Intesa:
lntesa
Sanpaolo S.p.A.
Xxxxxx
Xxxxx x. 0
00000
Xxxxxx, Xxxxx
Fax: x00
00 000 00000
To the
attention of: Xx. Xxxxxxx Xxxxxxxx and Xx. Xxxxxx Xxxxxx
7
E-mail:
xxxxxxx.xxxxxxxx@xxxxxxxxxxxxxx.xxx and
xxxxxx.xxxxxx@xxxxxxxxxxxxxx.xxx
To
Mediobanca:
Mediobanca
- Banca di Credito Finanziario S.p.A.
Xxxxxxxxx
Xxxxxx x. 0
00000
Xxxxxx, Xxxxx
Fax:
x00 00 0000
000
To the
attention of: Xx. Xxxxxxxx Rebecchini and Xx. Xxxxxxxxx Xxxxxx
E-mail:
mailto:xxxxxxxx.xxxxxxxxxx@xxxxxxxxxx.xx and
xxxxxxxxx.xxxxxx@xxxxxxxxxx.xx
To
Telefonica:
Telefonica
S.A.
C/Xxxxx de la Comunicacion, s/n, Xxxxxxxx X,
Xxxxxxxx Xxxxxxx, Xxxxxx 0x
00000
Xxxxxx, Xxxxx
Fax: x00
00 000 0000 and x00 00 000 0000
To the
attention of: Group General Counsel (Xxxxxx Xxxxxxx de Lerin) and
Xxxxx
Xxx
Xxxxxxx
E-mail:
xxxxxxxxxx.xxxxxxx@xxxxxxxxxx.xx and
xxxxxxxx@xxxxxxxxxx.xx
1.2.18 This
Agreement shall be governed by, and interpreted in accordance with, the laws of
the Republic of
Italy. The disputes arising out of or in connection with this
Amendment Agreement shall be submitted by the Parties to
arbitration. The venue of the arbitration shall be
Milan. The arbitration shall be conducted in the English language and
in accordance with ICC Rules.
|
INTESA
SANPAOLO S.p.A. (in its quality as Lender)
|
|
| /s/ Authorized Signatory | |
| MEDIOBANCA S.p.A. (in its quality as Lender) | |
| /s/ Authorized Signatory | |
| UNICREDIT CORPORATE BANKING S.P.A. | |
| /s/ Authorized Signatory | |
| SOCIÉTÉ GÉNÉRALE, Milan Branch | |
| /s/ Authorized Signatory | |
8
| TELEFÓNICA, S.A. | |
| /s/ Authorized Signatory | |
| ASSICURAZIONI GENERAL1 S.p.A. (for its own account and in the name and on behalf of the Generali Subsidiaries) | |
| /s/ Authorized Signatory | |
| INTESA SANPAOLO S.p.A. (in its quality as Shareholder) | |
| /s/ Authorized Signatory | |
| MEDIOBANCA S.p.A. (in its quality as Shareholder) | |
| /s/ Authorized Signatory | |
9
