EXHIBIT 81
SHAREHOLDERS' AGREEMENT
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:
-------------------------------------------------------------
% on
no. of ordinary ordinary
shares 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
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for Pirelli and Edizione. The Chairman of the Board (the "CHAIRMAN") is
designated by Olimpia.
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 what 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
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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.
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.
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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 do 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 of this Agreement shall be effective without the previous
unanimous writing 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
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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
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