EXHIBIT 99.92
AMENDMENT
TO THE CO-INVESTMENT AGREEMENT AND SHAREHOLDERS AGREEMENT
This agreement is entered into on 25 October, 2007
BY AND BETWEEN
TELEFONICA, S.A., a Spanish company with registered office at 28013, Xxxxxx,
Xxxx Xxx x. 00, Xxxxx ("TE");
ASSICURAZIONI GENERALI S.p.A., an Italian company with registered office at
Xxxxxx Xxxx xxxxx Xxxxxxx x. 0, Xxxxxxx, Xxxxx,
Alleanza Assicurazioni S.p.A., an Italian company with registered office at
Milano, viale Xxxxx Xxxxxx n. 35;
INA Assitalia S.p.A., an Italian company with registered office at Roma, Corso
d'Italia n. 33;
Volksfursorge Deutsche Lebenversicherung A.G., a German company with registered
office at Hamburg (Germany), an der Alster n. 57-63;
Generali Vie S.A., a French Company with registered office at Paris , Boulevard
Xxxxxxxx n. 11; (collectively "AG", and all such companies, other than
ASSICURAZIONI GENERALI S.p.A., hereinafter the "OTHER COMPANIES OF THE GENERALI
GROUP");
SINTONIA S.A., a Luxembourg company with registered office at 0, Xxxxx x'Xxxxx,
X. 0000 Xxxxxxxxxx ("XX");
INTESA SANPAOLO S.p.A, an Italian company with registered office at Xxxxxx Xxx
Xxxxx x. 000, Xxxxxx, Xxxxx ("IS");
MEDIOBANCA S.p.A., an Italian company with registered office at Xxxxxxxxx Xxxxxx
x. 0, Xxxxxx, Xxxxx ("MB");
(collectively the "PARTIES" and each, individually, a "PARTY")
WHEREAS
1. With an agreement dated April 28, 2007 (the "CO-INVESTMENT AGREEMENT"),
basically the Parties established the terms and conditions for (i) their
participation into Centrotrenta 4/6 S.r.l, an Italian company with registered
office at Xxxxxxxx xxx Xxxxx 0, Xxxxx, Xxxxx, fiscal code n. 05277610969, to be
subsequently transformed and renamed as Telco S.p.A. ("TELCO" or "NEWCO"), and
(ii) the presentation by the Parties also on behalf of Newco of an offer (the
"OFFER") for the acquisition by Newco from Pirelli&Co. S.p.A
and Sintonia S.p.A. and Sintonia S.A. of 100% of the share capital of an holding
company named Olimpia S.p.A ("O"), which in turn holds a stake of 17,99% of the
ordinary share capital of Telecom Italia S.p.A. ("TI") and the capitalization
and funding of Newco including the contribution to Telco of 5,6% of the ordinary
share capital of TI, MB and AG (the "ACQUISITION"). In accordance with such
Offer, the Parties and Pirelli&Co. S.p.A and Sintonia S.p.A. and Sintonia
S.A.entered into a Stock Sale Purchase Agreement on May 4th, , 2007 (the "SPA").
2. The Parties entered into a Shareholders Agreement on April 28, 2007, by means
of which basically they established the principles relating INTER ALIA to (i)
the corporate governance of Newco, (ii) the governance of O, (iii) the
appointment of directors in TI and (iv) the transfer of the Newco's shares and
the O and TI's shares directly or indirectly owned by Newco (the "SHAREHOLDERS
AGREEMENT").
3. On 23 October 2007, the Brazilian telecommunications regulator ("ANATEL")
published in its website a press release informing the approval of the
Acquisition with the request of fulfillment of certain actions aimed at ensuring
that the Brazilian activities of the Telefonica Group and the Telecom Italia
Group remain separate (the "ANATEL APPROVAL").
4. The Parties wish to enter into this amendment to the Co-investment Agreement
and Shareholders Agreement, so as to amend certain provisions in order to
clarify their application.
Now, therefore, in consideration of the foregoing premises the Parties hereby
AGREE AND CONVENANT
as follows:
1. Unless differently stated herein, terms in capital letters used in this
Second Amendment to the Co-Investment Agreement and the Shareholders'
Agreement shall have the same meaning as defined in the Co-Investment
Agreement, the Shareholders' Agreement on in the SPA, as the case may
be.
2. The Parties hereby agree to amend the Co-investment Agreement by
providing that the transformation of Telco into a SOCIETA PER AZIONI
shall occur at Closing, provided that Telco will be liquidated and each
Party (without prejudice of any other rights it may have under the
Co-investment Agreement in the event of any = breach by any Party)
shall receive back all its respective contributions, net of any
expenses occurred and taxes paid, should, for any reasons (i) the
Acquisition not be completed within 195 days following the execution of
the SPA or (ii) transformation not be registered, within 5 days from
payment of the Share Capital Increases. It is hereby agreed and
understood that the Parties shall in any case act in full respect of
the Shareholders Agreement pending the registration of the
transformation.
3. The Parties hereby agree to amend the Co-investment Agreement and the
Shareholders Agreement, by providing that:
(i) the AG portion of the First Share Capital Increase shall be
resolved for the benefit of and subscribed by AG and the Other
Companies of the Generali Group as specified in ANNEX A, provided
that, in case of subsequent change of control of any of said Other
Companies of the Generali Group, the Telco shares held by it shall
be transferred to AG before such change of control occurs. Each of
the Other Companies of the Generali Group hereby adheres to
Co-Investment Agreement and to the Shareholders Agreement, both as
amended and restated, and to the SPA.;
(ii) AG shall ensure that AG and the other companies of the Generali
Group becoming shareholders of Telco in accordance with point 3(i)
above shall act as a single Party vis-a-vis the other Parties and
fulfill all their obligations in accordance with the Co-Investment
Agreement and with the Shareholders Agreement, both as amended and
restated, and with the SPA; PROVIDED THAT, AG will be jointly and
severally responsible for any breach of such obligations -
excluding the obligations already fulfilled at Closing - by any of
the Other Companies of the Generali Group;
(iii) any references to AG in the Co-investment Agreement and the
Shareholders Agreement, shall be deemed as made to AG and the
other companies of the Generali Group for the respective
percentages and, where appropriate, as a single contractual Party
("UNICA PARTE COMPLESSA").
(iv) any notices to AG and the other companies of the Generali Group
becoming shareholders of Telco in accordance with point 1(i) shall
be made by each of the Parties directly to AG also on behalf of
such other companies of the Generali Group.
4. The Parties hereby agree to amend the Shareholders Agreement, by adding
the following provision at the bottom of the Clause 8.7:
"Without prejudice to the Standstill provision contemplated in Clause
7, which, in any case, remains in full force and effect, it is agreed
and understood that this Clause 8.7 shall not apply to any transactions
on TI shares falling in the scope of investment services - as defined
by article 1, paragraph 5, letters (b) to (e) of Legislative Decree no.
58/1998 - supplied by MB, AG, IS and, if any, by SI and/or any company
of their respective groups
to a Telecom Operator in the ordinary course of business, provided that
the relevant transaction does not involve TI Voting Shares in excess of
2% of TI Voting Share Capital."
5. The Parties acknowledge the content of the ANATEL Approval (a copy of
which is attached hereto) and each of the Parties undertakes, for so
long as it lies within its respective powers, to implement the content
thereof through appropriate legal instruments and actions.
6. Except as provided above, all the other provisions, terms and
conditions set forth in the Shareholders Agreement and the
Co-Investment Agreement shall remain unchanged and are hereby expressly
ratified and confirmed by the Parties.
* * * * *
TELEFONICA, S.A.
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ASSICURAZIONI GENERALI S.p.A.
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Alleanza Assicurazioni S.p.A.
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INA Assitalia S.p.A.
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Volksfursorge Deutsche Lebenversicherung A.G.
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Generali Vie S.A.
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SINTONIA S.A.
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INTESA SANPAOLO S.p.A.
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MEDIOBANCA S.p.A.
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