Exhibit 99.98
AMENDMENT TO SHAREHOLDERS AGREEMENT AND TO BYLAWS
This agreement is entered into on 19 November 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 Germany 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; (ASSICURAZIONI GENERALI S.p.A, and its four exclusively
controlled subsidiaries, ALLEANZA A.SSICURAZIONI, S.p.A., INA ASSITALIA S.p.A.,
VOLKSFURSORGE DEUTSCHE LEBENVERSICHERUNG A.G., and GENERALI VIE S.A.,
hereinafter collectively, "AG");
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 registed office at Xxxxxxxxx Xxxxxx
x. 0, Xxxxxx, Xxxxx ("MB");
(collectively the "PARTIES" and each, individually, a "PARTY")
WHEREAS
With an agreement dated April 28, 2007 (the "CO-INVESTMENT AGREEMENT"),
basically the Parties established the terms and conditions for (i) their
participation in 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"), (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.
(the "ACQUISITION") of 100% of the share capital of a 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 (iii) the capitalization and
funding of Newco in connection with the Acquisition.
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, (iv) the transfer of the Newco'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").
After having obtained the necessary previous regulatory authorities approvals,
including the decision announced by the Brazilian telecommunications regulator -
ANATEL on 23 October 2007 and subsequently published on November 5th, 2007 as
ANATEL'S Ato no 68.276, of October 31, 2007 (the "ANATEL APPROVAL"), the Parties
have proceeded with Closing of the Acquisition and performed the capitalization
and funding of Newco in connection with the Acquisition.
On 25 October 2007, the Parties entered into an Amendment to the Co-investment
and Shareholders' Agreement (a copy of which is attached hereto) in which, INTER
ALIA, the Parties acknowledge the content of the ANATEL Approval and each of the
Parties have undertaken, for so long as it lies within their respective powers,
to implement the content thereof through appropriate legal measures and actions.
The Parties now wish, in furtherance of that undertaking, to amend the
Shareholders Agreement and the By-laws of Newco, so as to implement the clauses
contemplated in the ANATEL Approval.
Now, therefore, in consideration of the foregoing premises the Parties hereby
AGREE AND COVENANT
as follows:
1. The Parties hereby agree to amend the Shareholders Agreement by adding the
following provisions thereto, as its Paragraph 5 BIS:
"5 BIS. SPECIFIC PROVISIONS RELATING TO TI AND TE'S TELECOMMUNICATION
SERVICES PROVIDERS IN BRAZIL
Specifically with respect to TI's Brazilian telecommunication operations,
the Parties have agreed as follows:
(A) While applicable regulatory restrictions and limitations exist:
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(i) TE shall neither directly or indirectly participate in, nor vote or
veto at shareholders' meetings held by Newco, O and TI or by any other
company directly or indirectly controlled by TI, at which and when there
will be discussed or proposed resolutions relating to any matters
concerning the activities of any such companies directly or indirectly
controlled by TI in the rendering or their telecommunication services in
the Brazilian market;
TE shall cause that the persons designated by TE as members to the Boards
of Directors, as members to Boards of Officers, as Officers or as members
of other corporate bodies having equivalent duties of Newco, O, and TI
shall neither participate in, nor vote or veto at meetings held by any such
corporate bodies or at meetings of corporate bodies of any other company
directly or indirectly controlled by TI, at which and when there will be
discussed or proposed resolutions relating to any matters concerning the
activities of any such companies in the rendering of their
telecommunication services in the Brazilian market;
(ii) TE shall not designate any member to the Board of Directors, Board of
Officers, or any Officer or member of any other corporate bodies having
equivalent duties, of companies located in Brazil directly or indirectly
controlled by TI and that provide telecommunication services in the
Brazilian market, as well as to the Board of Directors, Board of Officers,
or any Officer or member of any other corporate bodies having equivalent
duties, of companies located in Brazil directly or indirectly controlling
any such telecommunication services providers;
(iii) TE shall prohibit the companies directly or indirectly controlled by
TE which render telecommunication services in the Brazilian market from
participating in any of the following relationships with companies directly
or indirectly controlled by TI which render telecommunication services in
the Brazilian market, when the terms and conditions thereof differ from
those contemplated in the Brazilian rules applicable to telecommunication
services: (a) significant financing transactions of any kind whatsoever,
either as lenders or borrowers; (b) the granting of guaranties or
collateral of any kind whatsoever; (c) the transfer of assets under terms
or conditions or at prices different from market conditions and prices; (d)
the transfer of strategic technological know-how; (e) the provision of
telecommunication services or related services under more favorable or
privileged conditions; (f) operational agreements stipulating more
favorable or privileged conditions; (g) the common use of resources,
whether material, human or technological; (h) the joint contracting of
goods or services; (i) the execution of legal instruments designed to
permit the transfer or the assignment of shares or stocks among such
telecommunication services providers, or the assignment of rights of first
refusal with regard to the reciprocal transfer of shares or stocks; (j) the
adoption of a common trademark or marketing and advertising strategy;
(iv) The Parties shall renew and/or continue to observe the restrictions
and limitations contained in this paragraph 5 bis upon expiration of the
term or termination of the Shareholders Agreement for any other reason, as
well as in the event of any merger or consolidation between O and Newco, in
case Newco is not the surviving entity, such
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instruments shall he submitted to the Brazilian telecommunications
regulator for its prior approval.
(v) TE shall not exercise direct or indirect control of any company
directly or indirectly controlled by TI in Brazil, as per the definition of
control under the Brazilian telecommunications regulations in force, even
if TE exercises the right to acquire shares of Newco, in the case of a
unilateral withdrawal provoked by another shareholder of Newco;
(vi) The Parties shall instruct the members of the Boards of Directors of
Newco and O appointed by each of them, as well as the members of the Board
of Directors of TI appointed by Newco and/or O to take such actions and
make such deliberations as shall be necessary (a) to direct the preparers
of the agendas for meetings of the Boards of Directors and/or the Chairmen
of the respective Boards of Directors, as the case may be, of Telco, O, TI,
and Telecom Italia International N.V. ("TII") or any other company located
outside Brazil directly or indirectly controlled by TI with investments in
the Brazilian telecommunications sector, to divide the topics into separate
agendas as follows: (i) one agenda for the meeting in which TI's
participation, through the Board members that it designated in the
respective company, is allowed, and (ii) another agenda for the meeting in
which the participation of Board members designated by TI in such company
is not allowed and in which the topics dealt with shall necessarily pertain
to matters that deal with subjects related to the activities of the
companies directly or indirectly controlled by TI in rendering
telecommunication services in the Brazilian market and to directly related
topics, these latter being, necessarily, connected to the main topics as
regards competition strategy, such as budgets for marketing campaigns and
investment plans in product development, assets (LATO SENSU), instruments,
all that, in sum, is directed towards the development of activities related
to the activities of the companies directly or indirectly controlled by TI
in the rendering of telecommunication services in the Brazilian market; and
(b) to cause to be delivered, under appropriate terms of confidentiality,
to designated officers of XXX Celular S.A. and XXX Xxxxxxxx S.A., within
thirty (30) days counted from the holding of the meetings of the Boards of
Directors of Telco, O, TI, TII or any other company located outside Brazil
directly or indirectly controlled by TI with investments in the Brazilian
telecommunications sector, a copy of the Agendas and of the Minutes of the
meetings referred to in item (a)(ii), above (with a translation into
Portuguese), for delivery by them to the Brazilian telecommunications
regulator within such term of thirty (30) days and under a requirement of
confidentiality as to which they are entitled pursuant to the sole
paragraph of article 39 of the Brazil's General Telecommunications Law (Law
no 9.472/97), article 64 of Brazil's Decree no 2.338/97 and article 36 (VI)
of Resolution no 270/01 of the Brazilian telecommunications regulator.
(B) TE acknowledges and agrees that the restrictions and limitations
imposed on TE, as contemplated in this Paragraph 5 bis (A) (i), (ii)
and (iv) through (vi) above, shall survive and the prohibitions of
(iii), above, be maintained in the event of a De-merger of Newco as
provided in Articles 1.2 and 11 hereof, as long as applicable
regulatory restrictions and limitations exist at the time of such
De-merger;
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2. The Parties further agree to amend the Bylaws of Newco to add the following
provisions (to be number as Paragraph 5.1.1 and Paragraph 16.3, respectively):
"5.1.1. While and as long as applicable regulatory restrictions and
limitations exist in Brazil, the holder(s) of Class B shares will not be
entitled to voting rights with respect to any matters concerning the
activities of companies directly or indirectly controlled by Telecom Italia
S.p.A. rendering telecommunication services in Brazil, and, accordingly,
the participation of such Class B shareholder(s) shall be prohibited at the
shareholders meeting when any such resolution is discussed and taken.";
"16.3 As long as applicable regulatory limitations and restrictions exist
in Brazil, in accordance with the principles underlying article 2391 of the
Civil Code, no director chosen from the list submitted by the Class B
shareholders shall be entitled to participate to the discussion and
consequently to the vote on any item of the agenda of the meetings of the
board of directors - or of any internal committee - regarding activities
carried out or to be carried out in the Brazilian telecommunications market
by companies directly or indirectly controlled by Telecom Italia S.p.A."
3. Except as provided in Sections 1 and 2 above, all other provisions, terms and
conditions set forth in the Shareholders Agreement and in the By-Laws attached
thereto (as Annex 9) shall remain unchanged and are hereby expressly ratified
and confirmed by the Parties.
* * * * *
TELEFONICA, S.A.
_____________________
ASSICURAZIONI GENERALI S.p.A.
_____________________
ALLEANZA ASSICURAZIONI S.p.A.
_____________________
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INA ASSITALIA S.p.A.
_____________________
VOLKSFURSORGE DEUTSCHE LEBENVERSICHERUNG A.G.
_____________________
GENERALI VIE S.A.
_____________________
SINTONIA S.A.
_____________________
INTESA SANPAOLO S.p.A
_____________________
MEDIOBANCA S.p.A.
_____________________
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