Exhibit 44
CONTRACT
Between PIRELLI S.P.A., with home offices in Milan, at viale Sarca 222, capital
of(euro)1,043,604,420.04, registered in the Milan Business Registry under tax
code and VAT no. 008690151, herein represented by Dr. Carlo Buora, holding the
necessary powers as granted by the Board of Directors on December 19, 2002;
EDIZIONE FINANCE INTERNATIONAL S.A., with home offices at Xxxxx x'Xxxxx 0,
X-0000, Xxxxxxxxxx, capital of(euro)1,000,000.00, registered with the Luxembourg
Chamber of Commerce under number B77504, herein represented by Dr. Xxxxxx De
Simoi and Xx. Xxxxxxx Xxxxxxx, holding the necessary powers pursuant to By-laws;
BANCA INTESA S.P.A (FORMERLY INTESA BCI S.P.A.), with home offices in Milan, at
Piazza Xxxxx Xxxxxxx 10, Administrative Offices at Xxx Xxxxx xx Xxxxx 0, capital
of (euro)3,561,062,849.24, registered in the Milan Business Registry under tax
code no. 00799960158 and VAT no. 108107000152, herein represented by Xx. Xxxxxxx
Xxxxxxxx, holding the necessary powers as granted by the Board of Directors on
December 17, 2002;
UNICREDITO ITALIANO S.P.A., with home offices in Genoa, at xxx Xxxxx 0, Xxxxxxx
Administration in Milan, Piazza Cordusio, capital of (euro)3,148,070,110.00,
registered in the Genoa Business Registry under tax code no. and VAT no.
00348170101, herein represented by Dr. Xxxxxxxxxx Xxxxxxx, holding the necessary
powers as granted by the Board of Directors on December 19, 2002; and
OLIMPIA S.P.A., with home offices in Milan, at Xxxxx Xxxxx 000, xxxxxxx
xx(xxxx)0,000,000,000.00, registered in the Milan Business Registry under tax
code no. and VAT no. 03232190961, herein represented by Xx. Xxxxx Xxxxxxxxxx
Provera, holding the necessary powers as granted by the Board of Directors on
December 19, 2002;
the party of the first part, and
HOPA S.P.A., with home offices in Brescia, at Xxxxx Xxxxxxxxxx 00, capital
of(euro)709,800,000.00, registered in the Brescia Business Registry under tax
code no. and VAT no. 03051180176, herein represented by Xx. Xxxxxx Xxxxxx,
holding the necessary powers as granted by the Board of Directors on December
17, 2002;
the party of the second part,
and
EDIZIONE HOLDING S.P.A., with home offices in Treviso, at Calmaggiore, capital
of(euro)47,160,256.00, registered in the Treviso Business Registry under number
13945, tax code no. and VAT no. 00778430264, herein represented by the Chairman
of the Board of Directors, Dr. Xxxxxxxx Xxxxxxxx, holding the necessary powers
as granted by the By-laws;
standing as guarantor for Edizione Finance,
whereas
(a) Olimpia (as defined in paragraph 1.22 below) is a holding company with
approximately 28.5% of the capital of Olivetti (as defined in
paragraph 1.23 below);
(b) Olivetti, an Italian corporation traded on the Italian Stock Exchange,
is an industrial holding company operating in the field of
telecommunications and in specific sectors of information technology
and communications, whose main subsidiaries, both direct and indirect,
are Telecom (as defined in paragraph 1.45 below), TIM (as defined in
paragraph 1.46 below), and Seat (as defined in paragraph 1.38 below);
(c) Pirelli, Edizione, Intesa, and Unicredito (as defined below in
paragraphs 1.31, 1.09, 1.17, and 1.48, respectively) hold 60%, 20%,
10% and 10% of the capital in Olivetti, respectively;
(d) Pirelli has signed with Edizione and with Intesa and Unicredito two
separate Paracorporate Pacts involving the relationship between
Pirelli and Edizione, and between Pirelli and Intesa and Unicredito,
as partners of Olimpia;
(e) Edizione Finance as a shareholder of Olimpia will replace Edizione
with regard to all rights and obligations of the latter pursuant to
the agreement (as subsequently modified) signed between Pirelli and
Edizione such as referred to in clause (d) above. Accordingly:
(i) Edizione Finance signs the present Contract as a party
thereto (as a partner of Olimpia); whereas
(ii) Edizione signs the present Contract only as guarantor for
Edizione Finance with regard to every obligation assumed by
the latter pursuant to the present Contract;
(f) Hopa (as defined in paragraph 1.15 below), through its fully-owned
subsidiary Holy (as defined in paragraph 1.14 below), on the date the
Merger (as defined in paragraph 1.11 below) enters into effect, inter
alia, will assume ownership of 163,558,339 Olivetti Bonds (as defined
in paragraph 1.21 below), 99,941,661 shares of Olivetti stock (as
defined in paragraph 1.01 below), and Holy holding in Holinvest (as
defined in paragraph 1.25 below);
(g) Current Olimpia Partners (as defined in paragraph 1.02 below) and
Olimpia, on the one hand, and Hopa, on the other, have jointly
expressed an interest in forming a partnership for strategic purposes,
pursuant to the terms and conditions of the present Contract, so as to
maximize the creation of value for their shareholders, and accordingly
have agreed to the following:
(i) the joining of Hopa capital to that of Olimpia through a
merger of Holy (which in turn owns Holy holding in
Holinvest) in Olimpia, and
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(ii) the concurrent formalizing of understandings of a
paracorporate type intended to govern the relations between
Current Olimpia partners and Hopa, as Olimpia partners, and
the relations between Olimpia and Hopa, as Holinvest
partners;
now therefore
the parties hereto do mutually covenant, stipulate and agree as follows:
Article I
DEFINITIONS
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1.01 "Olivetti Stock": common shares in with voting rights in Olivetti (as
defined in paragraph 1.23 below).
1.02 "Current Olimpia Partners": Pirelli, Edizione Finance, Unicredito and
Intesa, collectively.
1.03 "Hopa Controlling Companies": Fingruppo Holding S.p.A., Banca Monte dei
Paschi di Siena, S.p.A., Compagnia Assicuratrice Unipol S.p.A., Banca Popolare
di Lodi S.c.a.r.l. and other private individuals signatory to the syndication
pact with regard to Hopa.
1.04 "Standstill notice": shall have the meaning set forth in paragraph 8.04(d)
below.
1.05 "Accelerated standstill notice": shall have the meaning set forth in
paragraph 8.06(b)(i) below.
1.06 "Control", "to control", "Subsidiary," and "Controlling companies": other
than cases that expressly differ from the context herein, shall have the meaning
set forth in Article 2359, paragraph 1, no. 1 and no. 2 of the Civil Code.
1.07 "Relevant date": shall have the meaning set forth in paragraph 9.01 of the
present Contract.
1.08 "Agreement Term": shall have the meaning set forth in paragraph 6.00 below.
1.09 "Edizione": Edizione Holding S.p.A. as referred to in the heading of the
present Contract.
1.09bis "Edizione Finance": Edizione Finance International S.A., as referred to
in the heading of the present Contract.
1.10 "Experts": shall have the meaning set forth in paragraph 5.05 below.
1.11 "Merger": shall have the meaning set forth in paragraph 5.01 below.
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1.12 "Business Day": every calendar day other than Saturday, Sunday, and other
days when as a general rule the banks of Milan are not open for performing their
usual activities.
1.13 "Holinvest": Holinvest S.p.A., with home offices in Brescia, at Xxxxx
Xxxxxxxxxx 00, capital of(euro)700,000,000 and subscribed capital of
(euro)514,000,000.00, registered in the Brescia Business Registry under
registration no., tax code no. and VAT no. 03562710172.
1.14 "Holy": Holy s.r.l., with home offices in Brescia, at Xxxxx Xxxxxxxxxx 00,
capital of(euro)10,000.00, registered in the Brescia Business Registry under
registration no., tax code no., and VAT no. 03517530170.
1.15 "Hopa": Hopa S.p.A., as referred to in the heading of the present Contract.
1.16 "Net Financial Borrowing": unless otherwise specified with regard to
specific cases, shall be the algebraic consolidated sum (with the understanding
that for each case net financial borrowing for Olimpia, borrowing for Olivetti
and its subsidiaries will not be taken into account) of the following items
entered in the statement of assets and liabilities prepared pursuant to Art.
2424 of the Civil Code: "bonds (D1) = convertible bonds (D2) + due to banks (D3)
+ due to other financial backers (D4) + financial debts owed to unconsolidated
subsidiaries (D8) + financial debts owed to affiliates (D9) + financial debts
owed to controlling companies (D10) - amounts due from unconsolidated
subsidiaries ( C II 2) - amounts due from subsidiaries (C II 3) - amounts due
from controlling companies ( C II 4) - financial assets other than fixed assets
(C III) - liquid assets (C IV)." Any existing updated value must be added to
this amount, for financial leasing fees, if such are not included in the
aforementioned items.
1.17 "Intesa": Banca Intesa S.p.A (formerly Intesa BCI S.p.A), as referred to in
the heading of the present Contract.
1.18 "Relevant Subjects": shall have the meaning set forth in paragraph 6.02
below.
1.19 "Net Asset Value": shall mean the evaluation method used for calculating
increase in value, according to market practice and at current values, of
financial assets and liabilities.
1.20 "Xxxxxxx xxxxx": 1.5% Xxxxxxx xxxxx, 2001-2002, each of which is an
"Xxxxxxx xxxx."
1.21 "Olivetti Bonds": 1.5% convertible bonds, 2001-2010, convertible to
Olivetti Stock issued by Olivetti, each of which is an "Olivetti Bond".
1.22 "Olimpia": Olimpia S.p.A., as referred to in the heading of the present
Contract.
1.23 "Olivetti": Olivetti S.p.A., with home offices in Ivrea, at Viale Jervis
77, capital of(euro)8,845,456,658.00, registration number in the Turin Business
Registry and tax code no. 00488410010.
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1.24 "Extraordinary Operations": every merger or split involving Olivetti, on
the one hand, and one or more of its directly or indirectly controlled
companies, on the other.
1.24bis "Capital Transactions": such extraordinary transactions as may involve
Olivetti capital and which change the number of shares or which result in, by
way of example though not exclusively: stock split, reverse split, assignment of
Olivetti stock to partners for capitalization of capital.
1.25 "Holy holding in Holinvest": Holy holding of Holinvest capital, or 19.999%
of this capital.
1.26 "Hopa holding in Holinvest": Hopa holding of Holinvest capital, or 80.001%
of this capital.
1.27 "Olivetti holding": alternately:
(i) when there are no Extraordinary Operations, holding with
full voting rights equal to at least 25% of Olivetti capital
on the date the present Contract is signed, or
(ii) when there are Extraordinary Operations, the entire package
of Olivetti Stock and/or Financial Instruments (granting
equal voting rights) arising from the exchange of shares
with voting rights equal to at least 25% of Olivetti capital
that would be attained through Extraordinary Operations
executed prior to the Relevant Date.
1.28 "Parties": the current Olimpia Partners, Olimpia (which, in accordance with
the provisions of paragraph 12.10 below, must be considered as a single Party),
and Hopa.
1.29 "Net Assets": the difference - to be determined in accordance with
Accounting Principles - between assets and liabilities on the "civil" balance
sheets of a corporation where, upon drafting the resultant consolidated balance
sheet, it is understood that for purposes of determining Olimpia's Net Assets
the assets of Olivetti and its subsidiaries are not taken into account.
1.30 "Pacts": agreements of a paracorporate nature set forth in Articles VI and
VII of the present Contract.
1.31 "Pirelli": Pirelli S.p.A. as referred to in the heading of the present
Contract.
1.32 "Increase Premium": shall have the meaning set forth in paragraph 10.00
below.
1.33 "Accounting Principles": Accounting principles as provided by law, and when
not specifically stated therein, those set forth by the National Council of
Professional Accountants, or otherwise by the International Accounting Standards
Committee.
1.34 "Debt/equity ratio": the ratio between Net Assets (as defined in paragraph
1.29 above) and Net Financial Borrowing (as defined in paragraph 1.16 above).
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Possible derivative instruments (as defined in Decree Law 24.2.1998, no. 58 -
Xxxxxx Law, Article 1, paragraph 2), not for coverage (as defined by Banca
d'Italia Measure of July 30, 2002) created as of 11-30-02, must be valued at
cost or market price, whichever is less, and any necessary write-off must result
in a reduction in Net Assets. Possible derivative instruments for coverage must
be valued in a manner consistent with the asset or liability pertaining to the
coverage, with it understood that the so-called equity swap underwritten by
Olimpia on November 20, 2001, will be customarily valued at cost.
1.35 "Stipulated Exchange Rate": shall have the meaning set forth in paragraph
5.03(a)(ii) below.
1.36 "Split": shall have the meaning set forth in paragraph 9.01 below.
1.37 "Holinvest Split": shall have the meaning set forth in paragraph 9.05
below. 1.38 "Seat": Seat - Pagine Gialle S.p.A, with home offices at Xxx Xxxxxx
00/0, Xxxxx, registration number in the Milan Business Registry and tax code no.
12213600153.
1.39 "Holy Position": Financial statements of Holy at December 31, 2002, with
the accompanying reports, attached hereto as number 5.02(ii) which - in
accordance with the provisions of paragraph 5.02(ii) below - shall represent the
Holy financial position of reference for the Merger project.
1.40 "Olimpia Position": Financial statements of Olimpia at November 30, 2002,
with the accompanying reports, attached hereto as number 5.02(i) which - in
accordance with the provisions of paragraph 5.02(i) below - shall represent the
Olimpia financial position of reference for the Merger project.
1.41 "Olivetti Companies": Telecom, XXX, and Seat, collectively.
1.42 "Standstill": shall have the meaning set forth in paragraph 8.01 below.
1.42bis "Accelerated Standstill": shall have the meaning set forth in paragraph
8.06 below.
1.43 "Financial Instruments": every financial instrument (including Olivetti
Instruments as defined below) that directly or indirectly grants subscription
rights to Olivetti Stock (which, by way of example and not exclusively, includes
convertible bonds, forward contracts, call options, and prepaid swaps).
1.44 "Olivetti Instruments": instruments with the characteristics as set forth
in the document attached hereto as no. 1.44.
1.45 "Telecom": Telecom Italia S.p.A., with home offices at Xxxxxx xxxxx Xxxxxx
0, Xxxxx, registration number in the Milan Business Registry and tax code no.
00471850016.
1.46 "Initial Term": shall have the meaning set forth in paragraph 8.05 below.
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1.47 "XXX": Telecom Italia Mobile S.p.A., with home offices at Xxx Xxxxxxxx 0,
Xxxxx, registration number in the Turin Business Registry and tax code no.
06947890015.
1.48 "Unicredito": Unicredito Italiano S.p.A, as referred to in the heading of
the present Contract.
Article II
OBJECT OF CONTRACT
------------------
(a) Under the present Contract, the various operations governed
thereby and the Paracorporate Pacts contained herein, the Current Olimpia
Partners, Olimpia, and Hopa hereby agree on the terms and conditions for
creating a partnership with strategic connotations.
(b) The partnership referred to in the previous paragraph shall be
achieved by Hopa's joining its capital to that of Olimpia (by Holy's merger with
Olimpia) together with the Current Olimpia Partners, and the subsequent joining
of Olimpia's capital to that of Holinvest, together with Hopa.
(c) The following stipulations in the present Contract shall, inter
alia, govern:
(i) the steps taken to achieve the aforesaid situation (setting the
terms and conditions thereof), in particular with regard to the
provisions of Articles II, IV, and V below;
(ii) the rules of corporate governance and other provisions of a
paracorporate nature to which the Parties have agreed, in particular
with regard to the provisions of Articles VI and VII below;
(iii)
(A) the mechanisms for settling possible Standstills or Accelerated
Standstills such as may arise in the administration of Olimpia
(to include with regard to voting instructions as determined by
the Olivetti Extraordinary Shareholders' Meeting) and/or of
Holinvest; and
(B) the means of any possible breakup of the partnership carried out
under the present Contract, with regard to confirming a
Standstill or Accelerated Standstill, as well as to the failure
to renew Pacts upon their expiration;
with particular regard to the provisions of Articles VIII, IX, and X
below.
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Article III
PRELIMINARY OBLIGATIONS OF THE PARTIES
--------------------------------------
(a) Following the signing of the present Contract, and in any case no
later than February 28, 2003, Hopa, Holinvest, and the Hopa Controlling
Companies must divest themselves of all Olivetti Stock, and Olivetti Instruments
such as they may own, with the following exceptions:
(i) with regard to Hopa, Olivetti Instruments as referred to up to a
maximum of 40 million shares in Olivetti;
(ii) with regard to Holinvest, Olivetti Instruments, Olivetti Stock and
Olivetti Bonds as set forth in paragraph 4.01(ii)(A) below;
(iii)with regard to Holy, up to a maximum of 99,941,661 shares in Olivetti
and 163,558,339 Olivetti Bonds; and
(iv) with regard to the Hopa Controlling Companies, up to one (1) million
shares in Olivetti for each Company.
(b) In order to certify proper compliance with the obligations set
forth in the previous paragraph (a), and so that the actions taken under the
conditions precedent set forth in paragraphs 4.01 (i), 4.01 (ii), and 4.01 (iii)
can be verified by no later than February 28, 2003:
(i) Hopa and the Hopa Controlling Companies must furnish the Current
Olimpia Partners with declarations (signed by the authorized legal
representative, or in the case of individuals, by the individual from
the Hopa Controlling Company), from which full compliance with the
obligations set forth in the previous paragraph (a) can be inferred,
with regard to Hopa and each of the Hopa Controlling Companies,
respectively, and the consequent ownership of Olivetti Stock, Olivetti
Instruments, and Financial Instruments as permitted under the present
Contract, all based on the model attached under number 3(b), with it
being understood, to avoid any doubt, that:
(A) the declaration furnished by Hopa must include the Olivetti Stock
and/or Olivetti Instruments it holds, to include indirectly through
its Subsidiaries (including Holy and Holinvest); and
(B) determination of compliance with the obligation to divest set forth in
the previous paragraph 3(a) (and subsequently for properly preparing
the declaration under paragraph 3(b)(i), must also include all of the
rights of any type whatsoever regarding Olivetti Stock as prescribed
in the standards on Tender Offers currently in force);
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(ii) Hopa must furnish the Current Olimpia Partners with a declaration
(signed by the authorized legal representative), from which it can be
inferred that Holinvest meets the condition set forth in paragraph
4.01(ii) below.
(c) Following the signing of the present Contract, and in any case no
later than February 28, 2003, Olimpia, and the Current Olimpia Partners must
divest themselves of all Olivetti Stock such as they may own on that date, also
through their respective Subsidiaries, in excess of the limit set forth in
paragraph 4.01(iii) below, with it understood that the maximum amount of
Olivetti Stock that Hopa, its Subsidiaries and Hopa Controlling Companies can
own pursuant to the present Contract, as stipulated in paragraph 4.01, also
following verification of the Conditions Precedent referred to in Article IV,
must be determined in order to calculate this excess.
(d) In order to certify proper compliance with the obligations set
forth in the previous paragraph (c), and so that the actions with regard to the
Conditions Precedent set forth in paragraph 4.01(iii) below can be verified by
no later than February 28, 2003, Olimpia and the Current Olimpia Partners must
furnish Hopa with declarations (signed by the authorized legal representative),
from which full compliance with the obligations set forth in the previous
paragraph (c) can be inferred, and the consequent ownership of Olivetti Stock as
permitted under the present Contract, all based on the model attached under
number 3(d), with it being understood, to avoid any doubt, that:
(i) the declaration furnished by each of the Current Olimpia Partners must
also include the Olivetti Stock, the Olivetti Instruments and the
Financial Instruments (as prescribed in the standards on Tender Offers
currently in force) that each one holds, to include indirectly through
their Subsidiaries and/or which are owned by companies belonging to
the same groups managed by the Current Olimpia Partners;
(ii) determination of compliance with the obligation to divest set forth in
the previous paragraph 3(c) (and subsequently for properly preparing
the declaration under this paragraph 3(d), must include all of the
rights of any type whatsoever regarding Olivetti Stock as prescribed
in the standards on Tender Offers currently in force); and
(iii)when providing these declarations, Intesa and Unicredito may be
limited - in accordance with the commitments assumed with Pirelli in
the Paracorporate Pact governing their relationships as Olimpia
partners - to furnishing the amount of Olivetti Stock they own and the
additional circumstance whereby they could jointly hold additional
Olivetti Stock up to a maximum of 0.40% of the capital of this
company, with voting rights, with it being understood that such an
exception is to be considered in calculating any possible excess as
referred to in the previous paragraph (c).
(e) Hopa hereby declares and assures that the Hopa Controlling
Companies will modify, by February 28, 2003 at the latest (inserting provisions
in this regard to take immediate effect), the Paracorporate Pacts that bind
them, with a stipulation whereby if any of the Hopa Controlling Companies holds
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more than one (1) million shares in Olivetti, such shall be grounds for
immediately canceling the aforesaid Paracorporate Pacts regarding the Hopa
Controlling Company/Companies that has/have exceeded the limit.
(f) Understanding the commitment to divest under the present Article
III, the Parties - to include their Subsidiaries and Controlling Companies and
third parties with whom, while the present Contract is in effect, agreements
have been signed (by the Parties themselves and/or their Subsidiaries and or
Controlling Companies) relative to Olivetti Stock and/or Financial Instruments
and/or Olivetti Instruments - hereby agree and mutually acknowledge that, during
the entire time the present Contract and the Pacts contained herein are in
force, none of them will hold Olivetti Stock and/or Financial Instruments and/or
Olivetti Instruments of sufficient quantity such as to exceed, among the Parties
and with regard to Olivetti Stock and/or Financial Instruments and/or Olivetti
Instruments, the limit referred to in paragraph 4.01(iii) below.
Article IV
CONDITIONS PRECEDENT
--------------------
4.01 Specifications. The Parties agree that the effectiveness of the present
Contract is subject to the following conditions precedent:
(i) that by February 28, 2003 at the latest, the Hopa Controlling
Companies will dispose of all Olivetti Stock in excess of the
amount excepted under the preceding paragraph III(a) such as they
may hold, and will modify the Paracorporate Pacts binding on them
in accordance with item (e) of Article III above; and
(ii) that by February 28, 2003 at the latest, Holinvest will have:
(A) assets comprised of:
(1) 134,721,109 Olivetti Bonds as third-party loans;
(2) the right to obtain, by June 30, 2003, (i) 58,110,100 Olivetti
Bonds pursuant to the agreement signed with GPP International
S.A.; (ii), 39,203,282 Olivetti Bonds pursuant to the agreement
signed with Hopa, and (iii) 66,244,957 Olivetti Bonds resulting
from reimbursement for an equal number of Xxxxxxx Xxxxx, for a
total of 163,558,339 Olivetti Bonds, with the understanding that,
to avoid any doubt:
(x) Hopa will ensure that Holinvest exercises the above right,
and that GPP International S.A. meets the commitments
assumed vis-a-vis Holinvest so that the latter will obtain
the aforesaid Olivetti Bonds no later than June 30, 2003;
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(y) the sale of the Olivetti Bonds will not result in Net
Financial Borrowing by Holinvest in excess of the maximum
limit set forth in paragraph (D) below; and
(3) Olivetti Instruments tantamount to 486,500,000 shares in
Olivetti;
(4) 2,431 shares in Olivetti.
(B) the stipulated value of Net Worth (applying Net Asset Value and
using as a base for reference the stipulated per-share value of
Olivetti Stock of (euro)1.20), not less than
(euro)220,000,000.00;
(C) a debt/equity ratio of not more than 1:1; and
(D) Net Financial Borrowing of not more than (euro)721,750,000.00.
It is understood that calculation of Net Financial Borrowing and
the stipulated Net Assets referred to in paragraphs (B) and (D)
above must not take into account (1) accrued interest payable on
financial debt dating from December 19, 2002, or the effects of
the time lapsed during the normal management of the company and
the costs of belonging to the partnership set forth herein and of
purchasing Olivetti Instruments; and (2) the 100,000,000 Olivetti
Bonds owned by Holinvest involved in a loan to XX Xxxxxx Chase,
and 100,000,000 nonconvertible Olivetti Bonds owned by XX Xxxxxx
Chase loaned to Holinvest. Accordingly, Hopa assures that the
assets under the aforesaid loans, opposite in sign, have the same
value, and thus the sum of the respective values (and the
consequent effect of these operations on Holinvest) is at least 0
(zero).
(iii)that - gross of the exemption allowed for Hopa, Holinvest, Holy,
and the Hopa Controlling Companies as set forth in paragraph (a)
of Article III above - the totality of Olivetti Stock held by
Olimpia, the Current Olimpia Partners, Hopa, Holinvest, Holy, the
other Hopa Subsidiaries and the Hopa Controlling Companies (upon
conclusion of the operations referred to in Article III above)
will not exceed 30% of Olivetti capital with voting rights (it
being understood that for this calculation the provisions of
paragraphs (c) and (d) of Article III must be taken into
account); it is understood that accordingly all of the rights of
any type whatsoever regarding Olivetti Stock must be calculated,
as prescribed by the standards on Tender Offers currently in
effect.
4.02 Unilaterality and Other Pacts. The Parties agree that - in view of the
conditions set forth in paragraphs 4.01(i) and (iii) above - the condition set
forth in paragraph 4.01(ii) above is in the exclusive interest of Current
Olimpia Partners and Olimpia, and who may, upon unanimous agreement, waive same
by written communication sent to Hopa no later than March 10, 2003.
4.03 Effectiveness. (a) If the conditions set forth in paragraph 4.01 fail to
materialize by February 28, 2003 (or if the condition set forth in paragraph
4.01(ii) has not been waived by the above deadline set for the Current Olimpia
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Partners and Olimpia), this Contract shall be regarded as automatically without
effect and cancelled as of that date, and the Parties shall be released from any
remaining obligations arising from same, with the Current Olimpia Partners and
Olimpia having no claim whatsoever against Hopa, and vice versa, with paragraphs
12.03, 12.05, 12.08, 12.10, and Articles XI and XIII no longer applicable.
Article V
MERGER
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5.01 Type of Merger. The Parties agree to create a partnership among themselves
by a merger involving the incorporation of Holy into Olympia, with the
corresponding increase of capital of the incorporating company, to be earmarked
for Hopa as the sole partner of Holy (hereafter the "Merger").
5.02 Financial positions of reference. The Parties agree to utilize as the
financial statements for the Merger during the approval stage and as a deposit
for the Merger project, solely for Olimpia and Holy, respectively:
(i) for Olimpia, the statements at November 30, 2002, as shown in
Attachment 5.02(i) (hereafter, the "Olimpia Position");
(ii) for Holy, the statements at December 31, 2002, as shown in Attachment
5.02(ii) (hereafter, the "Holy Position")
5.03 Stipulated exchange rate. (a) The Parties mutually acknowledge:
(i) that each has, prior to the date of the present Contract, carried out
fact-finding investigations and verifications of the company involved
in the Merger and a subsidiary of the other Party, aimed at verifying
its asset, financial, economic, administrative, legal, and fiscal
position;
(ii) that each has - following the verifications referred to in paragraph
(i) above - determined the exchange rate for the Merger to be
297,637,360 shares of Olimpia stock at a par value of (euro)1.00 each,
for a single share of Holy at a par value of (euro)10,000.00
(hereafter the "Stipulated Exchange Rate");
(iii)that each has taken into account, in order to calculate the Stipulated
Exchange Rate, the financial statements of Holy and Holinvest referred
to in paragraph 5.10.1.2 below, as well as the pro forma financial
statements shown in the attachment under 5.03 (iii), as indicated in
paragraphs 5.03 (b), 4.01 (ii)(A)(2) and 4.01 (ii)(D).
(b) The Parties also acknowledge that - apart from verifications made
- the above ascertainments indicate:
(i) that the Olimpia and Holy Positions are accurately represented;
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(ii) that on the date the Merger becomes effective, Holy, by virtue of
owning:
(A) 163,558,339 Olivetti Bonds and 99,941,661 shares in Olivetti,
none of them encumbered in any manner whatsoever, entered in
their totality on the balance sheets at a value of
(euro)476,935,000.00;
(B) Holy holding in Holinvest, not encumbered in any manner
whatsoever, and entered on the balance sheet at a value of
(euro)385,400,000.00;
(C) net cash holdings of (euro)98,800,000.00, plus any dividends such
as may be distributed by Olivetti by the effective date of the
Merger, with regard to 98,975,110 shares in Olivetti;
will have a Net Worth of not less than (euro)961,135,000.00, and
with no debts or other liabilities. It is understood that, for
calculating the net cash holdings referred to in paragraph (C)
above, and the Net Assets, as of December 19, 2002, no
consideration should be given to the effects of the passing of
time for the normal management of the company, nor to the costs
of pertaining to the Merger herein referred to.
5.04 Directors' Report. (a) Current Olimpia Shareholders shall provide for the
Olimpia Board of Directors to prepare the Report under Article 2501 quater of
the Civil Code by or before February 28, 2003.
(b) Hopa shall provide for the governing body of Holy to prepare the
Report under Article 2501 quater of the Civil Code, as soon as possible after
execution of this Contract, and in any case no later than February 28, 2003.
(c) The Parties agree that the reports under Article 2501 quater of
the Civil Code, referred to in paragraphs (a) and (b) above, must be consistent
in structure.
5.05 Expert's report on exchange rate adequacy. (a) For the purpose of writing
the experts' report as prescribed under Article 2501 quinquies, subsection 1 of
the Civil Code, the Parties mutually recognize as follows:
(i) the President of the Court of Milan (at the request of Olimpia) has
indicated Milan-based Price Waterhouse & Coopers S.p.A. as expert,
according to the definition under Article 2501 quinquies, subsection
2, letter b) of the Civil Code, in charge of writing a report - in
Olimpia's interest - concerning the adequacy of the Merger exchange
rate; and
(ii) the President of the Court of Brescia (at the request of Holy) has
indicated Xxxx. Xxxxxxxx Xxxxxxxxxx, whose office is located in Milan,
Via dei Bossi 6, as expert according to the definition under Article
2501 quinquies, subsection 2, letter b) of the Civil Code, in charge
of writing a report - in Holy's interest - concerning the adequacy of
the Merger exchange rate;
13
(For the purposes of this Contract, Milan-based Price Waterhouse &
Coopers S.p.A. and Xxxx. Xxxxxxxx Xxxxxxxxxx are hereinafter collectively
referred to as the "Experts".)
(b) The Parties agree that, should the Experts find the Stipulated
Exchange Rate inadequate, Olimpia, each of the Current Olimpia Shareholders, and
Hopa, shall meet to resolve the matter amicably and in good faith, provided
however that, should Olimpia, each of the Current Olimpia Shareholders, and Hopa
fail to come to an agreement, to be formalized within thirty [30] calendar days
after the Experts have filed their report, this Contract shall be deemed
terminated to all intents and purposes, and neither Party shall have any
liability of whatever nature to the other Party by reason of such termination.
5.06 Merger Resolutions. (a) The Parties mutually agree, after undertaking the
corrective measures as described in paragraph 5.05(b) above, if required, and
after fulfilling all legal and regulatory requirements for the approval, filing,
publication and registration of the Merger project, to provide for the
following :
(i) call a Extraordinary Meeting of Olimpia Shareholders to approve the
Merger and pass all resolutions related and consequent thereto; and
(ii) call a Extraordinary Meeting of Holy Shareholders, to be held on the
following day, to approve the Merger and pass all resolutions related
and consequent thereto.
(b) The Parties shall provide for a new set of Olimpia by-laws (post
Merger) to be adopted as a part of the Merger project; such by-laws shall adhere
to the text attached hereto as Addendum 5.07(b), so as to adjust the company's
corporate governance according to the agreed stipulations, as described in
detail in Article VI below.
(c) It is understood that, for all accounting and tax purposes, the
Merger shall be effective as of January 1, 2003.
5.07 Merger Agreement. The Parties agree to provide for Olimpia and Holy to
execute the Merger Agreement, as soon as possible after the term required by
law.
5.08 Interim Management. (a) As of the date of this Contract and until the
effective date of the Merger, each Party agrees to provide for its subsidiary to
be merged, and in the case of Hopa, Holinvest, to abstain from performing,
without prior written consent from the other Party and subject to compliance
with express provisions contained herein, such acts as may produce significant
changes in its economic and financial structure, including direct or indirect
purchase of company stock or shares, except as required to fulfill the
obligations hereunder, as known to the Parties.
(b) Additionally, each Party agrees to provide for the companies to
be merged to abstain from issuing new shares, in order to avoid altering the
Stipulated Exchange Rate.
5.09 Olimpia and Holinvest post-Merger ownership. The Parties mutually recognize
that, on the basis of the Stipulated Exchange Rate:
14
(i) Olimpia post-Merger shall be owned as follows:
Pirelli : 50.40%;
Edizione : 16.80%;
Hopa : 16.00%;
Unicredito : 8.40%; and
Intesa : 8.40%.
(ii) Holinvest post-Merger shall be owned as follows:
Hopa : 80.001%; and
Olimpia : 19.999%.
5.10 Mutual Guarantees by the Parties. The Parties mutually guarantee and
represent as follows in relation to Holy and Holinvest (with respect to Hopa)
and Olimpia (with respect to Current Olimpia Shareholders), their financial
statements, financial position and operating results, as well as any other
circumstances concerning such companies, as indicated below.
5.10.1 Hopa's Guarantees
5.10.1.1 Capitalization and Title. (a) The capital of Holy and Holinvest
reflects, as to amount and structure, the relevant specifications contained in
Addendum 5.10.1.1.
(b) There are no:
(i) titles or rights of any type or nature which may be converted into
shares of or interests in Holy or Holinvest, nor any other rights of
third parties to obtain any shares of or interests in Holy or
Holinvest, presently or in the future;
(ii) credit rights of any nature, claimed against Holy or Holinvest by Hopa
- except as indicated in balance sheet situations described in
paragraph 5.10.1.2 below - or by any persons (whether individuals or
entities) who own, are owned by, or are under the same ownership as
Hopa.
5.10.1.2 Financial statement. Holy's financial statement, attached hereto as
Addendum 5.02(ii) and Holinvest's financial statement, attached hereto as
Addendum 5.10.1.2, have been written clearly and accurately, in compliance with
the requirements of all civil and tax laws and regulations as applicable from
time to time, and based on Accounting Principles applied consistently throughout
the years using prudent and constant evaluation criteria; such statements
constitute true and correct representations of Holy's and Holinvest's assets and
liabilities, financial position, and operating results in the indicated periods.
The positive and negative entries recorded in the financial statements are true
and real, and have been evaluated on the basis of prudent appreciation;
additionally, the provisions and reserves required to meet any possible
contingent liabilities of Holy and Holinvest have been duly allocated. With
reference to the date of such statements, no lower assets or greater liabilities
or any other causes or events exist which may affect the value of the Net Assets
15
indicated therein, nor are there any further debts or liabilities, of whatever
kind or nature, in addition to those entered in the financial statements,
regardless of whether such debts or liabilities require the allocation of a fund
or reserve.
5.10.1.3 Unrecorded Liabilities and Credits. (a) As of the effective date of the
Merger, Holy and Holinvest shall have no liabilities except those not yet paid
shown in the statements referred to in paragraph 5.10.1.2 above, as well as
those emerged after the statements' reference dates in connection with ordinary
business conducted by Holy and Holinvest after such effective date, according to
the stipulations under paragraph 5.08 above, as a result of acts performed by
said companies under this Contract, or as a result of costs related to the
Merger, or the partnership regulated hereunder, or - with respect to Holinvest -
the acquisition of Olivetti instruments, plus the interest expense accrued on
financial debt as of December 19, 2002.
(b) The credits shown in the aforesaid statements and those emerged
after the reference dates of such statements, until the effective date of the
Merger, are and shall be existent, certain, liquid, and collectible within the
terms agreed with the debtors, with the exception of the special adjustment fund
entered in the liabilities.
5.10.1.4 Interim Management. (a) Hopa guarantees and represents that in the
period following the reference date of the financial statements referred to in
paragraphs 5.10.1.2 and 5.10.1.3 above, and until the date of this Contract, the
business operations of Holy and Holinvest were managed and conducted in
accordance with the provisions under paragraph 5.08 above; (b) after the
reference date of the statements referred to in paragraphs 5.10.1.2 and 5.10.1.3
above, no situations or circumstances occurred which may significantly affect
Holy and/or Holinvest or their financial statements or financial positions,
assets, operating results, or future outlooks, except for any acts required to
fulfill the obligations hereunder.
5.10.2 Current Olimpia Shareholders' Guarantees
5.10.2.1 Capitalization and Title. (a) The capital of Olimpia reflects, as to
amount and structure, the relevant specifications contained in Addendum
5.10.2.1(a).
(b) With the exception of the details specified in the document
attached hereto as Addendum 5.10.2.1(b), there are no :
(i) titles or rights of any type or nature which may be converted into
shares of or interests in Olimpia, nor any other rights of third
parties to obtain any shares of or interests in Olimpia, presently or
in the future;
(ii) credit rights of any nature, claimed against Olimpia by Current
Olimpia Shareholders.
5.10.2.2 Financial statement. Olimpia' financial statement, attached hereto as
Addendum 5.02(i) has been written clearly and accurately, in compliance with the
requirements of all civil and tax laws and regulations as applicable from time
to time, and based on Accounting Principles applied consistently throughout the
16
years using prudent and constant evaluation criteria; such statement constitutes
a true and correct representation of Olimpia's assets and liabilities, financial
position, and operating results in the indicated periods. The positive and
negative entries recorded in the financial statements are true and real, and
have been evaluated on the basis of prudent appreciation; additionally, the
provisions and reserves required to meet any possible contingent liabilities of
Olimpia have been duly allocated. With reference to the date of such statements,
no lower assets or greater liabilities exist, or any other causes or events,
which may affect the value of the Net Assets as indicated therein, nor are there
any further debts or liabilities, of whatever kind or nature, in addition to
those entered in the financial statement, regardless of whether such debts or
liabilities require the allocation of a fund or reserve.
5.10.2.3 Unrecorded Liabilities and Credits. (a) As of the effective date of the
Merger, Olimpia shall have no liabilities except those not yet paid shown in the
statements referred to in paragraph 5.10.2.2 above, as well as those emerged
after the statements' reference dates in connection with ordinary business
conducted by Olimpia after such effective date, according to the stipulations
under paragraph 5.08, or as a result of costs related to the Merger, or the
partnership regulated hereunder, or the acquisition of Olivetti instruments,
plus the interest expense accrued on financial debt as of December 19, 2002.
(b) The credits shown in the aforesaid statements and those emerged
after the reference dates of such statements, until the effective date of the
Merger, are and shall be existent, certain, liquid and collectible within the
terms agreed with the debtors, with the exception of the special adjustment fund
entered in the liabilities.
5.10.2.4 Interim Management. Unless otherwise stated in Addendum 5.10.2.4 :
(i) in the period following the reference date of the financial statements
referred to in paragraphs 5.10.2.2 and 5.10.2.3 above, and until the
date of this Contract, the business operations of Olimpia were managed
and conducted in accordance with the provisions under paragraph 5.08
above;
(ii) after the reference date of the statements referred to in paragraphs
5.10.2.2 and 5.10.2.3 above, no situations or circumstances occurred
which may significantly affect Olimpia or its financial statement or
financial positions, assets, operating results or future outlooks,
except for any acts required to fulfill the obligations hereunder.
5.11 Indemnification obligations (a) Each Party - this term meaning, for the
purposes of this paragraph 5.11, Hopa, on one side, and Current Olimpia
Shareholders on the other, each in relation to the guarantees respectively given
herein - shall fully indemnify and hold harmless the other Party with respect
to:
(i) any liability (whether actual or potential) of its subsidiary to be
merged and/or of Holinvest, existing as of the reference dates of the
financial statements referred to in paragraphs 5.10.1. and 5.10.2
17
above, pertaining to such subsidiary or otherwise arising out of any
acts, omissions, circumstances, or facts existing at such date, and
which is not indicated in the relevant statement (regardless of
whether or not, under the Accounting Principles, the Party was allowed
to omit such liabilities in the aforesaid statement).
(ii) any loss or damage incurred by its subsidiary to be merged and/or by
Holinvest or by the other Party, which would not have been incurred,
had the Party's guarantees and representations contained in paragraph
5.10 above been accurate, true and correct, to the extent that such
loss or damage has not been indemnified under paragraph (i) above.
(b) The rights provided by this paragraph 5.11 shall survive until
the second (2nd) anniversary of the date of subscription of this Contract or
until the effective date of the Split, whichever is closer; provided, however,
that as long as the Split is not effective, Olimpia shall have the right to be
indemnified by Hopa with respect to the guarantee issued by Olimpia under
paragraph 4.01(ii), and shall maintain such right until expiration of said loan.
Article VI
AGREEMENTS BETWEEN SHAREHOLDERS CONCERNING OLIMPIA AND OLIVETTI COMPANIES
-------------------------------------------------------------------------
6.00 Agreements and Agreement Term. (a) The Parties mutually recognize that the
provisions in this Article VI, as well as those in Article VII below
(collectively, the "Agreements") shall be effective for the entire period
("Agreement Term") between the effective date of the Merger and either:
(i) the natural expiration of such Agreements, as regulated under
paragraph (b) below; or
(ii) the date on which, in compliance with the applicable provisions
herein, (A) - as a result of a Standstill, the Split and Holinvest
Split become effective; (B) as a result of an Accelerated Standstill,
the Current Olimpia Shareholders receive an Accelerated Standstill
notice.
(b) The Agreements shall have a term of three years as of the
effective date of the Merger, and upon expiration shall be deemed tacitly
extended [for an equal period], unless a notice of termination is served by
either Party to the other, subject to the provisions in paragraph (c) below.
(c) Subject to law requirements concerning particular cases, the
Parties may withdraw from the Agreements, effective on the earliest expiration
date, by written notice to the other Party 3 (three) months before such
expiration date.
6.01 Board of Directors of Olimpia. (a) For the entire Duration of the
Agreements, the Board of Directors of Olimpia will be made up of a fixed and
non-changeable group of 10 members, one of which will be appointed upon
designation by Hopa. The first Director appointed by Hopa will be Xxxxxx Xxxxxx.
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(b) In the event the Director appointed by Hopa should cease to be on
the Board, a replacement shall be designated within the next 20 (twenty) Work
Days, and it is understood that the designation of the replacement will be still
made by Hopa, with the consent of Pirelli, which shall not withhold it
unreasonably.
(c) Should Hopa wish to revoke one or more of the Directors it
designated, the Current Olimpia Partners will cooperate fully, in order for this
revocation to proceed as rapidly as possible. Hopa shall have the right to
designate - in accordance to what was set forth in the preceding paragraph (b) -
the Director to be appointed as a replacement for the Director who was revoked,
subject to the consent of Pirelli, which shall not withhold such consent
unreasonably.
(d) The Parties commit to holding each other harmless and to holding
Olimpia harmless from any onus or damage deriving from the revocation without
just cause of the Directors that each one of them from time to time designates,
pursuant to paragraph 6.01.
6.02 Relevant Subjects. (a) For the purposes of this contract and in particular
of subsequent Article VIII the following shall be considered to be Relevant
Subjects:
(i) In reference to the resolutions to be adopted by Olimpia's
Shareholders' Extraordinary Meeting in relation to any subject that
pertains to it, any time the resolution is adopted:
(A) In opposition to a proposal by Olimpia's Board of Directors passed
with the agreement of the Directors appointed by Olimpia's Current
Partners and by Hopa; or
(B) In agreement with a proposal by Olimpia's Board of Directors passed
without the agreement of the Director appointed by Hopa;
(ii) In reference to the resolutions to be adopted by Olimpia's Board of
Directors in relation to those pertaining to:
(A) The suggested vote to be cast during Olivetti's Shareholders'
Extraordinary Meeting;
(B) The purchase, sale and transfer of any security interest valued over
(euro)100,000,000.00 per transaction, or for multiple transactions
performed during the same calendar year, with the exception of that
which is provided for in the subsequent paragraph (b);
(C) Acts or initiatives that modify or will modify the debt/equity ratio
from a 1:1 ratio (while keeping open the option to remedy this
situation pursuant to the procedure outlined in subsequent paragraph
8.07(a)(ii) and with the understanding that in this case it will not
be considered to be a situation inducing stalling) and/or that concern
the definition of the terms and conditions for using outside sources
of financing;
19
(D) Proposals for resolutions to be submitted to Olimpia's Shareholders'
Extraordinary Meeting.
(b) The Parties reciprocally acknowledge that - in spite of being
slightly different from what was outlined in the preceding paragraph (a) (ii)
(B) - the following shall not be considered Relevant Subjects for the purposes
of this Contract: actions relating to the purchase or sale of Olivetti stock,
the conversion of convertible Olivetti bonds in to Olivetti stock or equivalent
financial instruments, as long as even after these transactions Olimpia's
debt/equity ratio remains below 1:1.
6.03 Board of Directors of Olivetti Companies. (a) For the entire Duration of
the Agreements the current Olimpia partners will do whatever is in their power
to ensure that, in the meetings of the Boards of Directors of the Olivetti
Companies, a director be appointed as a result of being designated by Hopa. The
first directors that Hopa designates to this end are those indicated in the
attached document by number 6.03(a).
(b) The new Boards of Directors of the Olivetti Companies, made up
according to the dispositions in the preceding paragraph (a), will be appointed
as soon as possible after the Merger and in any event within and no later than
60 Business Days after the effective date of the Merger itself.
(c) The dispositions in the preceding paragraphs 6.01(b) and (c) will
apply, mutatis mutandis, also regarding the meetings of the Board of Directors
of the Olivetti Companies.
6.04 Tender Offers on Olivetti Stock. Hopa commits itself to the fact that, in
the event Olivetti Stock is subject to a tender offer, the Director that it
designated in Olimpia's Board of Directors - if the Current Olimpia Partners
requests it in writing - will not oppose Olimpia's agreeing to such tender
offer.
6.05 Stand still. (a) Except for what set forth in the subsequent paragraph (b)
or expressly provided for by this Contract, the Current Olimpia Partners and
Hopa (also with respect to its respective controlling companies and affiliates)
commit themselves not to purchase Olivetti Stock for the Duration of the
Agreements, and agree to the fact that Olimpia - in partial derogation from this
limitation - notwithstanding what is set forth in subsequent paragraph 8.06,
will have the right to buy and sell Olivetti Stock as long as these transactions
do not cause the limits described in paragraph 4.01(iii) to be exceeded,
notwithstanding the fact that in order to calculate the threshold specified in
the aforementioned paragraph, one shall have to bear in mind the quantities
allowed by paragraph (a) of Article III.
(b) The following cases are exceptions to the Stand Still commitment
specified in paragraph 6.05(a):
(i) The exercise on Pirelli's part of the rights already acquired before
executing this Contract, in relation to the exercise of call options
and swap contracts relating to the purchase of Olivetti Stocks and
Bonds (which are described in detail in the attached document
designated by number 6.05(b)(i);
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(ii) For purchases of Olivetti Stock which were already allowed:
(A) From Unicredito and Intesa, by the current Paracorporate Pact agreed
to by these entities with Pirelli, which is described in the attached
document designated by number 6.05 (b) (ii) (A); and
(B) From Edizione, within the limits outlined by the current Paracorporate
Pact agreed to by this entity with Pirelli, which are described in the
attached document designated by number 6.05(b) (ii) (B).
(iii) The maximum number of Olivetti Stock that the Hopa Controlling
Companies are authorized to possess pursuant to paragraph 4.01.
(c) Notwithstanding the above mentioned rights, furthermore the
Parties reciprocally acknowledge that the purchase by one Side of convertible
bonds and/or warrants that grant the right to underwrite convertible bonds in to
Olivetti Stock and the exercise of the rights that go with it will be allowed
only following the consent of the other Party, consent that shall not be
unreasonably withheld, with the proviso that in the event of a request by Hopa
there will have to be the unanimous consent of all the Current Olimpia Partners
that at the time of this request are Olimpia partners.
6.06 Olimpia's Business Purpose. The Current Olimpia Partners commit themselves
not to change Olimpia's business purpose (as reflected in the sample Articles of
Incorporation which are found under Addendum 5.07 (b)) up to the latter of the
following dates (i) the date of the natural expiration of the Agreements as set
forth by paragraph 6 (b) of this Contract; and (ii) in the event of a Stall or
an accelerated Stall, the effective date of the Break-up and the Holinvest
Break-up.
6.07 Other Commitments Relating to Olimpia. The current Olimpia Partners commit
to make it so that, for the entire duration of the Agreements, Olimpia:
(i) Does not have other holdings or financial investments other than its
holding in Olivetti, Olivetti's bonds, Olivetti's instruments and the
holding by Olimpia in Holinvest possessed as a result of the merger;
(ii) Has a debt/equity ratio that does not exceed 1:1; and
(iii)Does not sell its holding in Olivetti to entities controlled by
Olimpia or that are parts of groups whose ownership can be ascribed to
the Current Olimpia Partners.
6.08 Co-sale Rights and Obligations. (a) Except when otherwise set forth in this
Contract and in particular in the following paragraph 8.06(b)(iii) and
8.07(b)(ii), for the entire Term of the Agreements - and in any case until the
effective date of the Spinoff and of the Holinvest Spinoff - if the holding of
Pirelli in the capital of Olimpia is reduced by transfer, contribution,
assignment (including by spinoff), or transfer of a portion thereof, directly or
indirectly, or a financial instrument that may be converted and/or which gives
right to a holding in the capital of Olimpia (hereinafter jointly the "Signed
21
Holding") for payment, free of charge, for cash, or for payment in kind, under
any status, including in several branches as compared to that held as of the
signing date of this Contract, Hopa will have the right to claim (and therefore
Pirelli will be obligated to cause) the buyer (hereinafter the "Third Party
Buyer") - pursuant to the applicable provisions of this paragraph 6.08:
(i) whenever, notwithstanding the transfer and/or assignment of the
Assigned Holding, Pirelli, together with Unicredito and Intesa,
maintains absolute majority in the capital of Olimpia by acquiring:
(A) a percentage of the holding of Holinvest equal to the percentage
between the Assigned Holding and 50.4% according to the following
formula:
PpiH : PiH = PC : 50.4%
Where:
PpiH: is the holding percentage of Hopa in Holinvest for which Hopa
may claim transfer to the Third Party Buyer;
PiH: is the total holding (expressed as a percentage of the capital of
Holinvest) of Hopa in Holinvest;
PC: is the Assigned Holding (expressed as a percentage of the capital
of Olimpia);
or, as an alternative
(B) a percentage of the Olivetti Instruments and/or of the Olivetti Shares
and/or of the Financial Instruments held by Holinvest on the date
Pirelli communicates its intent, equal to the percentages between the
Assigned Participation and 50.4% according to the following formula:
PSOH : SOH = PC : 50.4%
Where:
PSOH: is the portion of the Olivetti Instruments and/or Olivetti
Shares and/or of the Financial Instruments held by Holinvest on the
date Pirelli communicates its intent, for which Hopa may claim
transfer to the Third Party Buyer;
SOH: the total number of Olivetti Instruments and/or Olivetti Shares
and/or of the Financial Instruments on the date Pirelli communicates
its intent, held by Holinvest;
PC: is the Assigned Holding (expressed as a percentage of the capital
of Olimpia);
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and therefore
(C) a percentage of its own holding in Olimpia equal to the percentage
between the Assigned Holding and 50.4%:
PpiO : PiO = PC : 50.4%
Where:
PpiO: is the portion of Hopa's holding in Olimpia for which Hopa may
claim transfer to the Third Party Buyer;
PiO: the total holding held by Hopa in Olimpia;
PC: Assigned Holding (expressed as a percentage of the capital of
Olimpia);
(ii) whenever the assignment and/or transfer with price paid in kind
(contribution and/or spinoff) of the Assigned Holding implies the loss
of the absolute majority in the common capital of Olimpia by Pirelli
together with Unicredito and Intesa, acquiring the entire holding held
by Hopa in Olimpia and/or Holinvest;
(iii)whenever the assignment and/or transfer with the price paid in cash of
the Assigned Holding implies the loss of the absolute majority in the
common capital of Olimpia, by Pirelli, together with Unicredito and
Intesa, Hopa will also have the obligation to sell (and, respectively,
Pirelli will have the obligation and the right to cause Hopa to sell)
to the Third Party Buyer the entire holding of Hopa in Olimpia and/or
in Holinvest;
with the understanding that:
(x) for the purposes of this paragraph 6.08, the financial
instruments whose acquisition by the Third Party Buyer must be
imposed by Hopa exercising the alternative power set forth in
this paragraph 6.08(a), will be identified as "Instruments to be
Assigned";
(y) once Hopa communicates - pursuant to the following paragraph (c)
- to Pirelli that it wishes to exercise the co-sale right set
forth in this paragraph 6.08(a), Hopa will be obligated to sell
the Instruments to be Assigned under the terms and conditions set
forth in this paragraph 6.08 and, in particular, the following
paragraphs (d) and (e); and
(z) the choice between the options referred to in the previous
paragraph 6.08(a)(i) will be exercised discretionally by Hopa and
will be unavailable.
(b) In order to allow Hopa to exercise the rights set forth in the
previous paragraph (a), Pirelli undertakes to communicate to Hopa any intention
to sell, transfer, assign (including by spinoff) or otherwise transfer under any
status or part of its own holding in Olimpia, as soon as allowed by the
negotiations with the Third Party Buyer (taking into consideration possible
23
reasons of confidentiality), communicating to Hopa the nature of the Third Party
Buyer and the terms and conditions of the possible transfer transaction.
(c) Hopa, after receiving the communication about the transfer
project of the Assigned Holding by Pirelli, must communicate to Pirelli within
twenty (20) Business Days from receipt of the communication, whether or not it
intends to exercise its own co-sale right and whenever Pirelli's communication
refers to a transaction of the type indicated in the previous paragraph (a)(i),
which of the options set forth in Sections (A) through (C) of said paragraph
(a)(i) it intends to choose.
(d) Should Hopa exercise the co-sale right set forth in this
paragraph 6.08, the transfers of the Instruments to be Assigned to the Third
Party Buyer following such exercise must be perfected simultaneously with the
transfer of the Assigned Holding by Pirelli to the Third Party Buyer.
(e) The transfer price of the Instruments to be Assigned must be
established pursuant to the following provisions:
(i) whenever Hopa exercised the co-sale right set forth in its favor in
the previous paragraph 6.08(a)(i)(C) or 6.08(a)(ii), the latter in the
portion referring to the Olimpia holding, the price will be equal to
the same price for each Olimpia share obtained by Pirelli from the
assignment of the Assigned Holding;
(ii) whenever Hopa exercised the co-sale right in its favor pursuant to the
previous paragraph 6.08(a)(i)(A) or 6.08(a)(ii), the latter in the
portion referring to the holding in Holinvest, the price will be
established by considering the implicit value assigned by the Third
Party Buyer to the Olivetti securities and to any Financial Instrument
held by Olimpia evaluating Holinvest on this basis at Net Assets
Value;
(iii)whenever Hopa exercised the co-sale right in its favor pursuant to the
previous paragraph 6.08(a)(i)(B), the price of the Olivetti
Instruments will be established considering the implicit value
assigned by the Third Party Buyer to the Olivetti securities and to
any Financial Instrument held by Olimpia.
with the understanding that, for the purposes of this paragraph, the Net Asset
Value (referred to in the previous paragraph (ii)) and the price of the
Financial Instruments (referred to in the previous paragraph (iii)) will be
established pursuant to the previous paragraph (e) and, in the event of this
agreement between Pirelli and Hopa, by an audit firm included among the
so-called "Big Four" - appointed by the Parties by mutual agreement or, in the
absence of such agreement, by the Presiding Judge of the Court of Milan at the
request of the most diligent Party; with the understanding that - the
determinations made by audit firm will be unappealable and final.
(f) It is understood between the Parties that the obligations set
forth in this paragraph 6.08 must be considered exclusively at the charge of
Pirelli, excluding any joint liability of the Current Olimpia Shareholders.
24
6.08bis Co-sale Rights concerning Olimpia's assets. (a) For the entire Term of
the Agreements - and in any event until the effective date of the Spinoff and of
the Holinvest Spinoff - if the holding of Olimpia is reduced to a level below
25% of Olivetti's capital or, whenever it is so reduced, it is further reduced
by transfer, assignment (including by spinoff) or sale of a portion thereof for
payment, free of charge, for cash or by payment in kind, under any status,
including in several tranches (hereinafter, together, the "Assigned Olivetti
Holding"), Holinvest will have the right to claim (and therefore Olimpia will be
obligated to cause) the buyer (hereinafter the "Third Party Buyer of Olivetti
Instruments") - pursuant to the applicable provisions of this paragraph - to buy
a percentage of the Olivetti Shares (and/or Financial Instruments) held by it on
that date, equal to the percentage between the Assigned Olivetti Holding and
Olimpia's holding in Olivetti, held before the assignment of the Assigned
Olivetti Holding:
PAOH : AOH = POC : PO
Where:
PAOH: is the number of Olivetti Shares (and/or Financial
Instruments) held by it, for which Holivest [sic] may claim the
transfer to the Third Party Buyer;
AOH: is the total number of Olivetti Shares (and/or Financial
Instruments) held by Holinvest on the date Olimpia communicates
its intent to transfer the Assigned Participation;
POC: is the Assigned Olivetti Holding (expressed as a percentage
of the Olivetti Shares (and/or of the Financial Instruments) held
by Olimpia on the date Olimpia communicates its intent to
transfer Assigned Olivetti Holding);
PO: the total holding in Olivetti and/or all Financial
Instruments held by Olimpia before the assignment of the Assigned
Olivetti Holding;
with the understanding that:
(x) for the purposes of this paragraph 6.08bis, the Olivetti Shares
and/or Financial Instruments for which Holinvest must impose the
acquisition of the Olivetti Instruments by the Third Party Buyer
will be identified as "Olivetti Instruments to be Assigned";
(y) once Holinvest communicates - pursuant to the following paragraph
(c) - to Olimpia that it wishes to exercise the co-sale right set
forth in this paragraph 6.08bis, Holinvest will be obligated to
sell the Olivetti Instruments to be Assigned under the terms and
conditions set forth in this paragraph 6.08bis and, in
particular, the following paragraphs (d) and (e); and
(b) In order to allow Holinvest to exercise the rights set forth in the previous
paragraph (a), Olimpia undertakes to communicate to Holinvest any intention to
25
sell, transfer, assign (including by spinoff), or otherwise transfer under any
status or part of its own holding in Olivetti, as soon as allowed by the
negotiations of the Olivetti Instruments with the Third Party Buyer (taking into
consideration possible reasons of confidentiality), communicating to Holinvest
the nature of the Third Party Buyer of the Olivetti Instruments and the terms
and conditions of the possible transfer transaction.
(c) Holinvest, after receiving the communication about the transfer project of
the Assigned Olivetti Holding by Olimpia, must communicate to Olimpia within
twenty (20) Business Days from receipt of the communication, whether or not it
intends to exercise its own co-sale right.
(d) Should Holinvest exercise the co-sale right set forth in this paragraph
8.06(ii)[sic], the transfers of the Assigned Olivetti Instruments to the Third
Party Buyer of the Olivetti Instruments to be Assigned following such exercise
must be perfected simultaneously with the transfer by Olimpia to the Third Party
Buyer of the Olivetti Instruments of the Assigned Olivetti Holding.
(e) The transfer prize of the Olivetti Instruments to be Assigned will be equal
to the price for each Olivetti share (and/or Financial Instrument) obtained by
Olimpia from the transfer for the assignment of the Assigned Olivetti Holding.
(f) The Parties mutually take note and agree that - as a partial exception to
the provisions of this paragraph 6.08bis - whenever Holinvest exercises the
co-sale right referred to in this paragraph 6.08bis, the assignment of the
Assigned Olivetti Holding which - pursuant to the terms of the preceding
paragraph would include an event of Accelerated Standstill - it will not be
considered Accelerated Standstill.
6.09 Taking Note. The parties mutually take note that:
(i) the Agreements set forth in this Contract do not replace and therefore
do not impair the validity, efficacy and enforceability of the
Agreements referred to in the Paracorporate Pact executed on September
14, 2001 between Pirelli, Unicredito, and Intesa;
(ii) in light of the preceding paragraph (i), the exercise by Unicredito
and/or Intesa of the rights set forth in their favor in the
Paracorporate Pact referred to in the previous paragraph (i) may not
in any manner represent nonperformance of any commitments assumed by
Unicredito and Intesa (as Current Olimpia Shareholders) under this
Contract, nor cause under any other status any liability for
Unicredito and Intesa themselves;
(iii) whenever Unicredito and/or Intesa exercise the put right pursuant to
the Paracorporate Pact referred to in the preceding paragraph (i),
they will immediately be released from any obligation towards Hopa
arising from this Contract, regardless of the date of the actual
transfer of the Olimpia shares subject to the put, without prejudice
to the fact that Pirelli will be automatically obligated towards Hopa
to perform all such obligations towards Hopa itself;
26
(iv) for whenever Unicredito and/or Intesa exercise the put right referred
to in the previous paragraph (iii), Edizione Finance and Hopa waive,
as of now, exercising the preference right established in their favor
in the bylaws.
Article VII
PARACORPORATE PACTS CONCERNING HOLINVEST
----------------------------------------
7.01 Board of Directors of Holinvest. (a) For the entire Term of the Agreements,
the board of directors of Holinvest will be made up of a fixed, unchangeable
number of 7 members, one of whom will be appointed by Olimpia's designation.
(b) The provisions of the previous paragraphs 6.01(b), (c) and (d)
will apply, mutatis mutandis, to the Board of Directors of Holinvest.
7.02 Lock-up Commitments. (a) As of the date of this Contract and for a period
of twenty months from the effective date of the Merger, Hopa:
(i) undertakes not to:
(A) offer, constitute in pledge, sell, carry out preliminary sale steps,
lend or otherwise transfer or assign (including by contribution or
partial spinoff), directly or indirectly, Hopa's Holinvest Holding or
any financial instrument that may be converted or which would give
right to a holding in the capital of Holinvest, or
(B) execute swap contracts and other acts and/or contracts transferring to
a different party, in full or in part, any risk or economic profit
arising from Hopa's ownership of the Holinvest Holding, regardless of
the fact that the transactions described in the preceding points (A)
and (B) must be liquidated by delivery of Hopa's Holinvest Holding or
of the aforementioned financial instruments, for cash or otherwise.
(ii) it pledges - without prejudice to the provisions of the following
paragraphs (b) and (c) - to take all necessary steps to prevent
Holinvest from:
(A) offering, selling, carrying out preliminary sales steps, lending,
granting in pledge to guarantee obligations of third parties or
otherwise transferring or assigning (including by contribution or
partial spinoff), directly or indirectly, the Olivetti Instruments
which, as of the date of this Contract, are owned by it, or any other
financial instrument that may be converted or which gives right to a
holding in the capital of Olivetti; or
(B) executing swap contracts or other acts and/or contracts transferring
to a different party, in full or in part, any risk or economic profit
arising from the ownership of the Olivetti Instruments which, as of
the date of this Contract, are owned by it, regardless of the fact
that the transactions described in the preceding points (A) and (B)
27
must be liquidated by delivery of the Olivetti Instruments or of the
other aforementioned financial instruments, for cash or otherwise.
(b) Concerning the provisions of the following paragraph 7.03:
(i) the Parties mutually take note that they know the following:
(A) Holinvest gave in pledge to the banks which financed it (the
"Creditor Banks") the Olivetti Instruments which, as of the date
of this Contract, are owned by it (as identified in the document
enclosed herewith under No. 7.02(b)(ii)(A)) as guarantee of the
obligations to reimburse the financing granted to it by said
Creditor Banks;
(B) Hopa undertakes to take all possible steps to avoid a possible
discussion of the pledge by the Creditor Banks and therefore to
preserve the preferred rights in favor of Olimpia referred in
paragraph 7.03 below;
(ii) in light of the provisions of the preceding paragraph (i), the
Parties agree that:
(A) following the execution of this Contract, Hopa will do everything
possible so that the Creditor Banks:
(1) consent that, in the event of sale of the Olivetti Instruments
following the discussion of the pledge referred to in the
preceding paragraph (i)(A), Olimpia be granted a preferred right
concerning the acquisition of the Olivetti Instruments so sold;
or, whenever such hypothesis is not feasible,
(2) to accept - in the event that the pledge referred to in the
preceding paragraph (i)(A) must be discussed - to transfer to
Olimpia the financing contracts and the respective guarantees, at
a price equal to the market value as of that date of the credit
given by the Creditor Banks to Holinvest, under the same
financing contracts so assigned; on the other hand, it is
understood that Hopa undertakes as of now to cause Holinvest - in
the event that the Creditor Banks declare their availability to
transfer the contract as indicated
in this paragraph (ii)(A)(2) to accept - and therefore consent to
- such assignments:
(B) without limitation to the provisions of the preceding paragraph
(A), immediately after the execution of the this contract, the
Parties will send a joint communication to the Creditor Banks to
inform them of the existence of the preferred right referred to
in paragraph 7.03 below, and also requesting the Creditor Banks
to a meeting to discuss the provisions of the aforementioned
paragraph (ii)(A);
28
(C) in order to help Olimpia achieve the purposes set forth in the
previous paragraph (i)(C), Hopa will allow a representative of
Olimpia (chosen by Olimpia with the consent of Hopa - which may
not be unreasonably denied) to participate in all the meetings
with the Creditor Banks which are the consequence or related to
the provisions of the previous paragraph (ii)(A);
(iii) the sections in the previous paragraphs(i) and (ii) will apply,
mutatis mutandis, also in the case of subsequent financing and
the respective pledges, with the understanding that the pledges
so granted by Holinvest may refer only to the debts contracted by
it, to the exclusion of the guarantee pledges of the debts of
other parties.
(c) Hopa's obligation referred to in the previous paragraph (a)(ii)
is understood in the sense of allowing Holinvest to freely
dispose - during the lock-up period - of the Olivetti Instruments
and/or Financial Instruments (but without application of the
preferred right referred to in paragraph 7.03 below) provided
that during said period, Holinvest keeps its ownership of a
number of securities of not less than 65% and not more than 125%
of those listed in the previous paragraph 4.01(ii)(A) and
provided the shares of the companies director or indirectly
controlled by Olivetti do not exceed 10% of the assets of
Holinvest, without prejudice to the composition of the assets of
Holinvest on the Relevant Date.
7.03 First Preferred Right in Favor of Olimpia. (a) At the end of the Lock-up
period referred to in the previous paragraph 7.02(a)(ii) and for the entire
residual Term of the Agreements - and in any case until the effective date of
the Spinoff and of the Holinvest Spinoff - Holinvest may freely dispose of the
Financial Instruments and of the Olivetti Shares, provided it - should it carry
out any of the transactions set forth in the previous paragraph 7.02(a)(ii)(A)
and (B) - xxxxx Xxxxxxx (with written communication detailing the identity of
the potential buyer whenever it is known to Holinvest, regardless of the fact
that the sale takes place on the regulated market, and all the elements
necessary for the adequate evaluation of the offer of the latter and of the
elements showing his seriousness) a preferred right in the Olivetti Instruments
which are the object of such transaction.
(b) It is understood that:
(i) the offer must be presented by the third party within (30) thirty
Business Days from the date Olimpia received Holinvest's
communication referred to in the previous paragraph 7.03(a);
(ii) the preferred right referred to in the previous paragraph (b)
must be exercised by the Olimpia within two (2) Business Days
after Olimpia's receipt of the respective denunciatio.
29
7.04 Holinvest's Bylaws. Hopa will take all necessary steps so that, by the date
of the Merger and not later, Holinvest's bylaws be amended to allow Holinvest
exclusively to engage in the holding and financial activity concerning ownership
and trading of the Olivetti Shares, Olivetti Instruments and Financial
Instruments, as well as the shares and/or financial instruments of the companies
directly or indirectly controlled by Olivetti; Hopa's commitment is subject to
the admissibility of such amendment pursuant to current legislation, without
prejudice to the fact that Hopa will not be obligated to make such amendment
whenever it implies the prohibition to Holinvest from continuing to own the
holdings in securities other than those indicated in this paragraph, as
currently owned, with the understand that, in this case, Hopa undertakes to
cause Holinvest not to acquire new securities other than those described above.
In addition, within the same term, Hopa undertakes to make in the current bylaws
of Holinvet [sic] the amendments necessary to make it consistent with the model
bylaws enclosed herewith under No. 7.04.
7.05 Second Preferred Right in Favor of Olimpia. (a) In the absence of a
scenario of Accelerated Standstill, on the expiration of the first three-year
period of the term of the Agreements (but completely independently from the fact
that the agreements are extended for a subsequent three-year period or not) Hopa
will cause Holinvest to execute with Olimpia a preferred rights agreement with a
term of two years, under which - as of that date - Holinvest - whenever it
intends to offer, pledge, sell, carry out preliminary sale steps, sell any sale
option or contract, grant any option, right or warrant for acquisition, lend or
otherwise transfer, assign or dispose (including by contribution or partial
spinoff), directly or indirectly, all or part of Olivetti's holding post-Spinoff
- it must offer it preferentially to Olimpia to the extent that, due to the
transaction planned, Hopa and Holinvest would own together less than:
(i) 65% of the holding in Olivetti belonging to them by the effect of
the Spinoff; or
(ii) 65% of the Olivetti Instruments owned by Holinvest on the
reference date of the Spinoff.
(b) The preferred right referred to in the previous paragraph (a)
must be exercised by Olimpia within 15 days after its receipt of the respective
denunciatio.
(c) For the entire term of the preferred rights agreement set forth
in this paragraph 7.05, the provisions of the previous paragraph 6.05 apply,
mutatis mutandis.
ARTICLE VIII
STANDSTILL AND ACCELERATED STANDSTILL
-------------------------------------
8.01 Identification of standstill cases. For the purposes of this Contract,
"Standstill" means a situation of disagreement, expressed in preliminary
consultations or, in the absence thereof, in the Extraordinary Shareholders'
Meeting of Olimpia or in the Board of Directors of Olimpia, among the Current
Olimpia Shareholders, on the one hand, and Hopa, on the other hand, on a
Relevant Subject, at any time during the Term of the Agreements.
30
8.02 Obligation of consultation. The Current Olimpia Shareholders undertake to
first consult Hopa whenever a Relevant Deliberation must be discussed or
approved.
8.03 Procedure. (a) For the performance of the obligation referred to in
paragraph 8.02 above, the Current Olimpia Shareholders and Hopa undertake to
meet, or to first consult each other by telephone conference or videoconference,
subject to the appropriate minutes, within and not later than the third (3rd)
day prior to the day scheduled for the meeting of the board or shareholders of
Olimpia, or immediately after they become aware, in the event of urgent
invitation from the meeting of the Board of Olimpia pursuant to the applicable
bylaws' provisions.
(b) In the consultation referred to in this paragraph, the Current
Olimpia Shareholders and Hopa will do everything possible to reach an agreement
and/or identify a common position in the issues submitted to their examination,
and undertake for this purpose to act in good faith.
(c) The unjustified absence of a Party in the preliminary
consultation or its abstention from decisions reached during the consultation,
implies acceptance of the decisions reached by the other Party and impose on the
absent or abstaining Party the obligation to comply with and observe such
decisions.
8.04 Manifestation of will. (a) Whenever the Current Olimpia Shareholders and
Hopa, in the preliminary consultation referred to in paragraphs 8.02 and 8.03
above, reached an agreement concerning the issues submitted to said
consultation, they will be obligated to express their will at the competent
levels, according to the following provisions:
(i) by giving a joint representative delegation to participate in
Olimpia's extraordinary shareholders' meeting and to cast the vote in
said meeting, according to the decision made; or, as applicable,
(ii) to cause its representatives in the Board of Directors of Olimpia to
participate in the meeting of the board and cast their vote there,
according to the joint decisions reached in the preliminary
consultation.
(b) Otherwise, in the absence of mutual agreement on the issues
submitted to consultation, Hopa will be obligated to refrain from participating
in the meeting of the shareholders or of the board and from casting or causing
its vote to be cast at said level and/or refrain from expressing, at any level
and mode, its will or position concerning the issue subject to said preliminary
consultation, except as indicated in point (d) below.
(c) Whenever the preliminary consultation referred to in the previous
paragraphs 8.02 and 8.03 does not take place by the fault of the Current Olimpia
Shareholders, Hopa will have the right to participate in the meeting of the
shareholders and/or board and cast or cause casting of its vote at that level
and/or to express, at any level and mode, its will or position concerning the
Relevant Subject, except as set forth in point (d) below.
(d) Whenever the situation referred to in point (b) or the situation
referred to in point (c) above occur, Hopa will have the right to send to the
Current Olimpia Shareholders, by telegram or registered letter and pursuant to
31
paragraph 12.03, a "Standstill Notice" within the term of 15 (fifteen) days from
the end of the consultation referred to in paragraph 8.03 or, in the absence of
consultation, from the date of the decision referred to in the preceding
paragraph 8.04(c).
(e) Within 30 Business Days from the date the Current Olimpia
Shareholders received the Standstill Notice, the Parties must request - for the
only purpose referred to in paragraph 10.01 below - by unappealable judgment of
an Arbitration Board, to be appointed in accordance with Article XIII below, the
ascertainment, for the purposes set forth in Article X, of whether or not the
Standstill situation was declared by Hopa in good faith.
In any event, it is understood in order to avoid any doubt, that Hopa's right
(as referred to in Article IX below) to have the Spinoff [and] the Holinvest
Spinoff take place without the results of such ascertainment and therefore the
Current Olimpia Shareholders must implement all necessary steps for the Spinoff
and Holinvest Spinoff to take place within the term indicated in paragraph
9.01(c) below.
8.05 Rights of the Parties. (a) Whenever Hopa sends to the Current Olivetti
Shareholders a Standstill Notice pursuant to paragraph 9.04 (c) above, Hopa will
have the right (which will be deemed exercised by the receipt of the Standstill
Notice by the Current Olimpia Shareholders pursuant to point (c) paragraph 8.04
above) to claim - as of the end of the thirty-sixth (36) month after the date of
the Merger (the "Initial Term") - all necessary steps to be taken so that within
6 months from the Initial Term, the Spinoff and Holinvest Spinoff take place
pursuant to the applicable provisions of Article IX below.
(b) The Parties agree that in any case of absence of opt-out of the
Parties and their consequent automatic renewal pursuant to the provisions of
paragraph 6.00(b) above, the Initial Term must be considered from time to time
[the end of the thirty-sixth (36) month after the date of each renewal].
8.06 Identification of Cases of Accelerated Standstill.
(a) Whenever - during the Term of the Agreements - one of the
following events takes place (each of them an event of "Accelerated
Standstill"):
(i) a decision is made for the merger and/or spinoff of Olimpia and/or
Olivetti with companies other than companies directly or indirectly
controlled;
(ii) Olimpia stops owning a holding in Olivetti at least equal to the
Holding in Olivetti, including as a consequence of:
(A) transfer and/or assignment (including by spinoff) and/or contribution
of all or part of its holding in Olivetti and/or Financial Instruments
(with voting right) to companies belonging to the groups in which the
Current Olimpia Shareholders are members or which are managed by them;
or
32
(B) transfer and/or assignment (including by spinoff) of all or part of
its holding in Olivetti and/or Financial Instruments (with voting
right) to third parties with payment in kind (for example by swap or
contribution).
(iii)Olimpia's debt/equity Ratio - without prejudice to paragraph (b) below
- exceeds 1:1;
(iv) the Current Olimpia Shareholders decide to contribute all or part of
their total holding in Olimpia to companies belonging to groups in
which the Current Olimpia Shareholders are members or which are
managed by them;
(v) without prejudice tot he provisions of paragraph 8.06(b) (iii) (C)
below, there are plans for transfer, assignment and/or conveyance
(including by spinoff) under any status, of all or part of the total
holding of the Current Olimpia Shareholders in Olimpia, to companies
belonging to groups in which the Current Olimpia Shareholders are
members or which are managed by them, at a price lower than the market
price of Olimpia's holding in Olivetti plus (euro) 0.60 per Olivetti
Share and/or Financial Instrument owned by Olimpia. It is understood
that, whenever Extraordinary Transactions or Capital Transactions are
carried out, such increase of (euro) 0.60 must be determined for a
number of Olivetti Shares and/or Financial Instruments appropriately
adjusted or adapted as a consequence of such Transactions, according
to market practice, with the understanding that whenever, due to the
determination of such number there is a disagreement between the
Parties, such determination will be requested by the most diligent
Party from a prime business bank chosen by mutual agreement or, in the
absence thereof, designated by the President Judge of the Court of
Milan;
(vi) there are plans for assignment and/or conveyance (including by
spinoff) of all or part of the total participation of the Current
Shareholders in Olimpia to third parties, with payment in kind (for
example by swap or contribution), whenever the third party does not
assume towards Hopa the same obligations assumed by the Current
Olimpia Shareholders pursuant to the agreements, without prejudice to
the fact that in such case Hopa will not be subject to any co-sale
obligation;
in all these cases, Hopa will have the right to ask Olimpia and the Current
Olimpia Shareholders to take all necessary steps in order to decide - pursuant
to the applicable provisions of Article IX below - on the Spinoff and Holinvest
Spinoff.
(b) The Parties mutually take note that:
(i) the right granted to Hopa in paragraph (a) above will be deemed
exercised when the Current Olimpia Shareholders receive a written
communication from Hopa indicating to the Current Olimpia Shareholders
its desire to enforce its rights established in the event of
Accelerated Standstill, "Accelerated Standstill Notice";
33
(ii) this communication must be sent by Hopa to the Current Olimpia
Shareholders not later than by the fifteenth (15th) day after the
occurrence of one of the events referred to in paragraph (a) above;
(iii)in the event referred to in paragraph 8.06(a)(v) above, Hopa will not
have:
(A) the right to exercise the co-sale rights reserved in its favor in
paragraph 6.08(a) above;
(B) the right to exercise its preferred right established in the bylaws;
and
(C) any co-sale obligation.
8.07 Exceptions to Cases of Accelerated Standstill.
(a) In partial derogation to the provisions of paragraph 8.06(a)(iii)
above, the Parties mutually take note that:
(i) the occurrence of a possible excess over the ratio of 1:1 in the
debt/equity Ratio of Olimpia, relevant for the purposes of paragraph
8.06(iii) above, will exclusively be that carried out by Olimpia and
the Current Olimpia Shareholders and communicated by them to Hopa
(including as part of the approval of the periodic financial
statements and balance sheets of Olimpia by its Board of Directors)
quarterly, and at any time following a written request from Hopa to
Olimpia; and
(ii) it may be considered that the event referred to in the previous
paragraph 8.06(iii) took place only if, following said event, the
debt/equity Ratio of Olimpia is not restored to a value equal to or
lower than 1:1 within the next 5 days from the date of the
communication by which Olimpia notifies Hopa that the debt/equity
Ratio of Olimpia has exceeded 1:1 or, as an alternative, the latter
does not irrevocably undertake to restore it, with the understanding
that such restoration may occur (A) by non-refundable payments to the
capital account made by the Current Olimpia Shareholders and without
causing economic difficulties for Hopa or dilutions of the latter's
holding in Olimpia or (B) by subordinated financing, with the
understanding that, in this case, the current Olimpia Shareholders
will be obligated (in order to avoid an Accelerated Standstill) to
convert or replace within 60 (sixty) days such subordinated financing
by non-refundable payments to the capital account, without causing
economic difficulties for Hopa or dilution of the latter's holding in
Olimpia.
(b) In addition, the Parties mutually take note that:
(i) the transfer or contribution of their holding in Olimpia will not
constitute a case of Accelerated Standstill pursuant to paragraph
8.06(v) above:
(A) by one of the Current Olimpia Shareholders, to a company which is (and
remains) controlled by it; and
34
(B) by Unicredito and Intesa to:
(1) a company subject to joint control of said parties in their
respective bank group and as long as they remain members thereof;
and/or
(2) to Pirelli, pursuant to the provisions of the current Pool
Agreement between Pirelli, on the one hand, and Unicredito and
Intesa on the other hand, provided that Pirelli - simultaneously
with such assignment or contribution - is subrogated in the
obligations assumed by Unicredito and Intesa towards Hopa
pursuant to the Agreements and in general pursuant to this
Contract;
(C) by Edizione to Pirelli pursuant to the provisions of the current Pool
Agreement between Pirelli, on the one hand, and Edizione, on the other
hand, whereby Pirelli is subrogated as of now, in the event of such
assignment or contribution, in the obligations assumed by Edizione
towards Hopa pursuant to the Agreements and, in general, pursuant to
this Contract;
(ii) the assignments referred to in paragraph 8.07(b)(i) above will not
give Hopa the right to exercise the co-sale rights reserved to it
under paragraph 6.08(a) above, nor the preferred right established for
it in the bylaws, nor will they create any co-sale obligation for
Hopa.
8.08. Relations between Standstill and Accelerated Standstill. The Parties
mutually take note that whenever, in the event of a Standstill, there is an
event of Accelerated Standstill, the applicable provisions in the case of
Accelerated Standstill will prevail and, whenever there is an Accelerated
Standstill, there may be no Standstill or a subsequent Accelerated Standstill,
with the understanding that in the event of a Standstill, an Accelerated
Standstill may take place but a subsequent Standstill may not be deemed to
occur.
Article IX
SPINOFF AND HOLINVEST SPINOFF
-----------------------------
9.00 Triggering Events. Should Hopa exercise the rights set forth in its favor
in paragraphs 8.05 and 8.06(a) above, and in the event of failure to renew the
Agreements on their initial expiration or at the expiration of the subsequent
renewals periods pursuant to paragraph 6.00 above:
(i) the Current Olimpia Shareholders undertake to do everything necessary
so that - pursuant to the following paragraphs of this Article IX and
in particular paragraph 9.01 - the Spinoff takes place; and
(ii) Hopa and Olimpia undertake to do everything necessary so that -
pursuant to the following paragraphs of this Article IX and in
particular paragraph 9.04 - the Holinvest Spinoff takes place.
35
9.01 The Spinoff. (a) The Spinoff will consist of a partial spinoff of Olimpia
as a consequence of which Hopa will receive the pro-quota of Olimpia's assets
and liabilities.
(b) The reference date, including for the determination of the
pro-quota of the assets and liabilities and without prejudice to paragraph 9.02,
of the Spinoff (the "Relevant Date") will be:
(i) the Initial Term, in the event of Standstill and in the event of
failure to renew the Agreements on the original expiration or on the
expiration of the subsequent renewal periods (without prejudice to
paragraph 8.05(b) above); and
(ii) a date coinciding with the third (3rd) Business Day following the date
of the relevant event for the purposes of Accelerated Standstill, in
the event of Accelerated Standstill.
(c) Without prejudice to paragraph 9.06 below, the Current Olimpia
Shareholders must take all necessary steps to complete the Spinoff within six
(6) months:
(i) from the Initial Term, in the event of Standstill and in the event of
failure to renew the Agreements on the original expiration or on the
expiration of the subsequent renewals periods; and
(ii) from the date of receipt of the Accelerated Standstill Notice, in the
event of Accelerated Standstill.
9.02 Commitment of the Current Olimpia Shareholders. Without prejudice to
paragraph 9.07 below for the so-called cash settlements, in all cases in which,
pursuant to this Contract, it is necessary to proceed with the Spinoff, the
Current Olimpia Shareholders must do everything necessary so that, on the
Relevant Date:
(i) the assets of Olimpia consist at least of the Olivetti Holding (ii)
the share of the Olivetti Holding and Financial Instruments to be
attributed to Hopa in the Spinoff is equal to the percentage of Hopa's
holding in the capital of Olimpia, without prejudice to the fact that,
in the Spinoff, Hopa must be attributed a share of the Olivetti
Holding including in the event that, on the Relevant Date, Olimpia has
a holding lower than the Olivetti Holding, except that, upon the
reduction of Olimpia's holding in Olivetti below the Olivetti Holding,
the exercise of the co-sale right is obtained by Hopa; in this case,
Hopa will be attributed the pro rata of Olimpia's holding in Olivetti
and of its financial instruments;
(ii) Hopa will be attributed a portion, in a percentage equal to Hopa's
holding percentage in Olimpia's capital,
(A) of Olimpia's holding in Holinvest on the Relevant Data; or
(B) the share reserved to Olimpia in connection with Holinvest's assets
and liabilities on the same date.
36
9.03 Further Commitments in the Event of Standstill, Accelerated Standstill and
Failure to Renew. In addition to the provisions of Paragraph 9.02 above, in the
event of Spinoff following a Standstill, and an Accelerated Standstill or
failure to renew the Agreements, the Current Olimpia Shareholders must take all
necessary steps so that the debt/equity Ratio of Olimpia on the Relevant Date is
not higher than 1:1.
9.04 Subsequent Commitments only in the Event of Accelerated Standstill. In
addition to the provisions of paragraph 9.02 above, in the event of Spinoff
following an Accelerated Standstill (and therefore not in the case of Standstill
or failure to renew the Agreements), the Current Olimpia Shareholders must take
all necessary steps so that the effects of the event which gives rise to Hopa's
right to enforce the Accelerated Standstill (provided it does not consist of the
events referred to in paragraphs 8.06(ii) and 8.06(iii) below) do not damage the
Spinoff.
9.05 Holinvest Spinoff. (a) The Holinvest Spinoff will consist of a partial
spinoff of Holinvest as a consequence of which Olimpia will be attributed the
pro-quota of the assets and liabilities of Holinvest.
(b) Without prejudice to paragraph 9.07 below, the reference date of
the Holinvest Spinoff will be the Relevant Date of the Spinoff (and must
therefore be determined pursuant to paragraph 9.01(b) above).
(c) Without prejudice to paragraph 9.07 below, Hopa must take all
necessary steps for the Holinvest Spinoff to be completed within six (6) months:
(i) from the Initial Term, in the event of Standstill and in the event of
failure to renew the Agreements on the original expiration or on the
expiration of the subsequent renewals periods; and
(ii) from the date of receipt of the Accelerated Standstill Notice, in the
event of Accelerated Standstill.
9.06 Commitment of Hopa. In all cases in which the Holinvest Spinoff must be
carried out, Hopa will take all necessary steps so that, on the Relevant Date:
(i) Holinvest's debt/equity Ratio is not higher than 1:1; and
(ii) Holinvest's assets do not include financial instruments other than
Olivetti Bonds or other Olivetti Instruments or financial instruments
derivative from Extraordinary Transactions or Olivetti Shares arising
from the conversion of the instruments of mentioned above, in addition
to the Olivetti Shares referred to in paragraph 4.01 (a) (ii) (A) (4)
above.
9.07 Modalities of the Spinoff and Holinvest Spinoff.
(a) Without prejudice to the previous paragraphs of this Article IX,
the Parties mutually take note that, in order to carry out the agreement of the
Parties in the event that it is necessary to proceed with the Spinoff and the
Holinvest Spinoff:
37
(i) the Holinvest Spinoff must proceed and be effective before the Spinoff
becomes effective, and must attribute to Olimpia (or, should it so
require, in writing, to one of its fully-held subsidiaries) the
pro-quota of the assets and liabilities of Holinvest (as set forth in
paragraphs 9.05 and 9.06 above); however, it is understood that,
whenever Hopa so desires, instead of the Holinvest Spinoff (and
therefore instead of the allocation to Olimpia of the pro-quota of the
assets and liabilities of Holinvest) Hopa may liquidate Olimpia [and
therefore buy Olimpia's holding in Holinvest] with a payment in cash
(so-called cash settlement) whose amount must be calculated equal to
the difference, calculated at market prices on the Relevant Date,
between the assets and liabilities which, in the event of the
Holinvest Spinoff (and therefore in the event of allocation to Olimpia
of the pro-quota of the assets and liabilities of Holinvest) would
have been reserved for Olimpia; with the understanding that this right
may be exercised by Hopa only within 15 (fifteen) Business Days from
the Relevant Date, and that the payment of the aforementioned amount
must take place within 15 (fifteen) Business Days after the exercise
of said right.
(ii) subsequently - although without solution of continuity - at the time
the Holinvest Spinoff becomes effective, the Spinoff will be carried
out attributing to Hopa (or, if it so desires, to one of its
fully-held subsidiaries) the pro-quota of the assets and liabilities
of Olimpia (as set forth in paragraphs 9.01 to 9.04 above); however,
it is understood that, whenever the Current Olimpia Shareholders so
desire, instead of the Spinoff (and therefore instead of the
allocation to Hopa of the pro-quota of the assets and liabilities of
Olimpia) the Current Olimpia Shareholders may liquidate Hopa [and
therefore buy the pro-quota, unless decided otherwise, of Hopa's
entire holding in Olimpia] with a payment in cash (so-called cash
settlement) whose amount must be calculated equal to the difference,
calculated at market prices on the Relevant Date, between the assets
and liabilities which, in the event of the Spinoff (and therefore in
the event of allocation to Hopa of the pro-quota of the assets and
liabilities of Olimpia) would have been reserved for Hopa; with the
understanding that this right may be exercised by the Current Olimpia
Shareholders only within 15 (fifteen) Business Days from the Relevant
Date, and that the payment of the aforementioned amount must take
place within 15 (fifteen) Business Days after the exercise of said
right.
(iii)including in the event of cash settlement, Hopa will be paid or
attributed the Increase Premium to which it is entitled pursuant to
Article X below.
(iv) the stipulation of the Spinoff instrument will be subject to the
stipulation of the preferred right agreement referred to in paragraph
7.05 above, whose enforceability will be, in turn, subject, as a
suspensive condition, to the completion of the Spinoff.
(b) Furthermore, the Parties mutually take note of the fact that
Olimpia's liabilities include a "syndicated loan," in the amount of (euro) 1.8
38
billion maturing in October 2006, which cannot be distributed as part of the
Spinoff between the company subject to spinoff and the beneficiary, and that
therefore:
(i) such syndicated loan will fully remain in the liabilities of Olimpia;
(ii) as part of the Spinoff, Olimpia will attribute to the beneficiary
another financial loan, equal to the portion of the syndicated loan
receivable by the beneficiary of the Spinoff, without changing the
preexisting pro-quota of the assets and liabilities to which the
beneficiary is entitled.
(c) The Parties mutually take note that, as part of the Holinvest
Spinoff, as part of the attribution of the pro-quota of the applicable assets
and liabilities, Hopa will be attributed 1,000,000 Olivetti Bonds and the
respective debt as referred to in paragraph 4.01(ii)(D)(2).
9.08 Penalty. (a) Without prejudice to paragraph (b) below, in the event that
(for reasons other than failure to complete the Holinvest Spinoff by the fault
of Hopa) the Spinoff does not become effective within the term indicated in
paragraph 9.01(c) above, the Current Olimpia Shareholders must promptly pay an
indemnity to Hopa (the "Penalty") equal to (euro) 0.70 for each Olivetti Share
and/or Financial Instrument which, by the effect of the Spinoff, must be
attributed to Hopa (or should have been attributed to Hopa in the event that the
Current Olimpia Shareholders would have exercised their right to the so-called
cash settlement pursuant to paragraph 9.07(a) above), without prejudice to the
fact that, in all events, Hopa must be attributed a share of the Olivetti
Holding even in the event that Olimpia owns a holding lower than the Olivetti
Holding (except if, when the Olimpia holding in Olivetti is reduced below the
Olivetti holding, Hopa exercises the co-sale right); in this case, the Penalty
will be calculated in connection with Olimpia's holding in Olivetti and the
Financial Instrument thereof, with the understanding that the Penalty will be
paid (in an amount equal to the difference between (euro) 0.70 and the portion
of the Increase Premium possibly already paid to Hopa) only in connection with
the Olivetti shares and the financial instruments which, on the date of the
spin-off, are the property, held or available directly or indirectly to Olimpia
(net of those arising from the Holinvest spin-off, which will not therefore be
considered for the determination of the penalty). It is understood that,
whenever Extraordinary Transactions or Capital Transactions are carried out,
such Increase Premium must be paid for the entire number of Olivetti shares
and/or financial instruments, timely adjusted or adapted as a consequence of
such transactions, according to market practice, without prejudice to the fact
that, whenever there is a disagreement between the parties concerning the
determination of such number, the determination will be requested by the most
diligent among them from a prime business bank chosen by mutual agreement, or,
in the absence thereof, designated by the presiding judge of the Court of Milan.
(b) In partial derogation to the preceding paragraph, the parties
agree as follows:
(i) whenever the effectiveness of the spin-off, even though it does not
take place within the term established in the previous paragraph
9.01(c), takes place within the subsequent term of six (6) months from
39
the expiration of the term set forth in the preceding paragraph 9.01
(c) (the "new term") the amount paid by the current Hopa shareholders
as penalty must be refunded by Hopa to the current Olimpia
shareholders when Olimpia delivers to Hopa everything the latter is
entitled to pursuant to the spin-off; however, it is understood that,
in such latter event, the Increase Premium referred to in Article 10
below must be paid by the current Olimpia shareholders to Hopa plus
interest on said amount, accrued on the balance of the Increase
Premium at annual Euribor 6 months from the expiration of the term
referred to in the preceding paragraph 9.01(c) to the effective date
of the spin-off.
(ii) the payment of the indemnity referred to in the preceding paragraph
(a) pending on the new term must therefore be considered provisional,
and may be considered final and therefore mature, including for tax
purposes, only if, at the expiration of the new term, the spin-off is
not yet executed.
Article X
INCREASE PREMIUM
----------------
10.00 Description. In all the events in which it is necessary to proceed with
the spin-off, pursuant to the applicable provisions of this contract and in
particular Article 9 above (in the calculation of the pro quota of the assets
and liabilities to which the beneficiary is entitled under the spin off) Olimpia
or the current Olimpia shareholders, if Olimpia fails to do so, must pay to
Hopa, by the methods referred to in paragraph 10.04 below, but in addition to
any right of Hopa by the effect of the spin-off pursuant to Article IX above, an
Increase Premium (the "Increase Premium") for each Olivetti share and/or
financial instrument which, by the effect of the spin-off, must be attributed to
Hopa (or should have been attributed to Hopa in the event that the current
Olimpia shareholders would have exercised their right to the cash settlement
pursuant to the paragraph 9.07(a) above, to be determined and paid pursuant to
the provisions of the following paragraphs of this Article X. It is understood
that, whenever Extraordinary Transactions or Capital Transactions are carried
out, such Increase Premium must be paid for the entire number of Olivetti shares
and/or financial instruments timely adjusted or adapted as a consequence of such
transactions, according to market practice, with the understanding that
whenever, due to the determination of such number there is a disagreement
between the Parties, such determination will be requested by the most diligent
Party from a prime business bank chosen by mutual agreement or, in the absence
thereof, designated by the Presiding Judge of the Court of Milan; with the
understanding that, without prejudice to paragraph (i) above, the Increase
Premium will be paid only for the Olivetti shares and Financial Instruments
directly or indirectly owned, held, or available to Olimpia as of the date of
the Spinoff (net of those arising from the Holinvest Spinoff, which will
consequently not be considered for the determination of the Increase Premium).
Whenever actually paid, the Increase Premium must be considered to include all
Hopa's claims following the Standstill or the accelerated Standstill, as the
case may be.
10.01 The Increase Premium In The Event of Standstill: In the event that the
spin-off takes place following a standstill, the Increase Premium must be
determined as follows:
40
(i) at (euro) 0.35, whenever the arbitration board referred to in Article
XIII below, selected by the parties pursuant to paragraph 8.04(d)
above, determines that the standstill was declared by Hopa not in good
faith; or instead
(ii) at (euro) 0.60, whenever the arbitration board referred to in Article
XIII below, selected by the parties pursuant to paragraph 8.04(d)
above, determines that the standstill was declared by Hopa in good
faith.
10.02 The Increase Premium in the Event of Accelerated Standstill. In the event
that the spin-off takes place following an accelerated standstill, the Increase
Premium will be equal to (euro) 0.60, without prejudice to the fact that, in the
case referred to in paragraph 8.06 (ii) above, the Increase Premium will be
equal to (euro) 0.70.
10.03 The Increase Premium in the Event of Failure to Renew the Agreements. In
the event that the spin-off takes place as the consequence of the failure to
renew the agreements, the Increase Premium will be determined according to the
following provisions:
(i) the Increase Premium may not in any event and therefore not even if
the parties resort to the evaluation of the investment banks referred
to in paragraph (ii) below, be determined at an amount of less than
(euro) 0.35;
(ii) the Increase Premium will be determined by mutual agreement between
the current Olimpia shareholders and Hopa within 10 business days from
the last day of the term of the agreement or, in the absence of such
agreement, by two "investment banks" within the national standing
selected one by each party; for the purposes of this paragraph 10.03.
party means Hopa, on the one hand, and the current Olimpia
shareholders on the other hand, without prejudice to the fact that,
whenever the "investment banks" so appointment disagree on the
evaluation within 30 business days from their appointment, the
evaluation will be made by a third "investment bank" with the same
standing, selected by agreement between the first two (at the time the
parties give the task) or, in the absence of agreement, by the
presiding judge of the Court of Milan;
(iii) the Presiding Judge of the Court of Milan will be (in the order and
in the terms indicated above) also requested to appoint the
"investment bank" which one of the parties may have omitted to appoint
or to replace it, in the event of its subsequent transfer of the task;
(iv) the evaluation referred to in point (i) above will be final and
binding for the parties pursuant to articles 1349 and 1473 of the
Civil Code, for the purposes of this Article X and in particular this
paragraph 10.03.
10.04 Terms and Modalities of Payment of the Increase Premium. The Increase
Premium must be paid or allocated to Hopa by Olimpia - or by the current Olimpia
shareholders pursuant to paragraph 10.00 above - in immediately available funds;
(i) in the event referred to in paragraph 10.01 above;
41
(A) concerning the (euro) 0.35, at the time of affecting the spin-off: and
(B) concerning the possible balance (equal to (euro) 0.25) within 15
(fifteen) business days from the decision of the arbitration board,
determining that the standstill was determined by Hopa in good faith;
(ii) in the event referred to in paragraph 10.02 above, concerning the
(euro) 0.35, within 30 (thirty) calendar days from receipt of the
accelerated standstill notice by the current Olimpia shareholders, and
the balance of the applicable Increase Premium at the time of
perfecting the spin-off;
(iii) in the event referred to in paragraph 10.03 above, within 30 (thirty)
business days from the determination referred to in points (ii) to
(iv) of paragraph 10.03 above;
Article XI
EXPENSES AND BURDENS
--------------------
Except as otherwise agreed between the parties, the cost, dues,
taxes, expenses, and other burdens arising from this contract or related to it
will be paid by each party in the part concerning it.
ARTICLE XII
GENERAL PROVISIONS
------------------
12.01 Amendments. Any amendment to this contract will be valid and binding only
if it arises from a written document signed by all the parties.
12.02 Prohibition of Assignment. Except as otherwise set forth in the specific
clauses of this contract, neither party may assign this contract in full or in
part, nor may it assign any of the rights or obligations arising from it,
without the prior written agreement of the other party.
12.03 Communications and Notices. Except as otherwise set forth in the
provisions of this contract, any communication requested or allowed by it must
be made in writing and will be deemed efficiently and validly made when it is
received, if sent by letter or telegram, or at a time of the acknowledgment of
receipt by the appropriate declaration (including by fax) at the time of
transmission indicated in the report automatically issued by the transmitting
machine, if made by fax, provided it is addressed as follows:
(i) if to Pirelli, to it at:
Xxx X. Xxxxx 00
00000 Xxxxxx
Fax: 00-00000000
To the attention of the pro tempore Managing Director
42
(ii) if to Edizione Finance and Edizione, to the former at:
Xxxxxxxxxxx 00
Xxxxxxx
Fax: 0000-000000
To the attention of the pro tempore Managing Director
(iii) if to Unicredito, to it at:
Xxx Xxxxxxx Xxxxxx, 00
00000 Xxxxxx
Fax: 00-00000000
To the attention of Xx. Xxxxxx Xxxxxxx and Xx. Xxxxx Xxxxxx
With copy to:
Atty. Xxxxxx Xxxxxxxx
Studio Legale Caliceti
Xxx Xxxxxxx 00
00000 Xxxxxx
Fax: 00-00000000
(iv) if to Intesa, to it at:
Xxx Xxxxx xx Xxxxx 0
00000 Xxxxxx
Fax: 00-00000000
To the attention of the pro tempore Managing Director
(v) if to Olimpia, c/o Pirelli at:
Xxx X. Xxxxx 00
00000 Xxxxxx
Fax: 00-00000000
To the attention of the pro tempore Managing Director
(vi) if to Hopa, to it at:
Xxxxx Xxxxxxxxxx 00 00000 XXXXXXX
Fax: 0000000000
To the attention of the pro tempore Managing Director or at a
different address or fax number, in the Italian territory, as each of the
parties may communicate to the other in writing after the date of this contract,
pursuant to the preceding provisions, with the understanding, that, at the
aforementioned addresses, or at different addresses that may be communicated in
the future, the parties will also elect their own domicile for all purposes
related to this contract, including for possible notices to be issued during or
in connection to judicial or arbitration proceedings.
43
12.04 Addenda. The Addenda are an integral part of this contract as if they were
fully transcribed therein.
12.05 Tolerance. The possible tolerance of one of the parties for the behavior
of the other constituting violation of the provisions of this contract does not
constitute waiver of the rights arising from the violated provisions or of the
right to require exact performance of all terms and all the conditions set forth
therein.
12.06 Headings. The headings of the individual articles are included only to
facilitate the reading of this contract and therefore they must not be taken
into account in any manner in the interpretation thereof.
12.07 References. Unless it arises otherwise from the context, the references
contained herein to articles, paragraphs, points or addenda will be understood
to refer to the articles, paragraphs, points or addenda of this contract.
12.08 Governing Law. This contract and the rights and obligations of the parties
arising from it will be governed and interpreted pursuant to the laws of the
Italian Republic.
12.09 Subsequent Commitments. The parties undertake to sign and exchange all
acts and documents and to comply with all acts and to communicate everything
necessary in order to assure the achievement of the objectives of this contract.
12.10 The Current Olimpia Shareholders and Olimpia as Joint Party. The current
Olimpia shareholders and Olimpia, recognizing that they have the joint common
interest, declare that they are a joint contractual party for all the purposes
of this contract and therefore bind themselves to comply with the obligations
and exercise with the rights arising from said contract in accordance with such
joint capacity, in particular (but without limitation thereto) concerning the
clause in Article XIII below.
12.11 Announcements. Except as otherwise set forth in any applicable imperative
law, or provisions enforced by any authority with jurisdiction on the current
Olimpia shareholders, Olimpia and Hopa, neither one of the parties will engage
in announcements, publicity, distribution of similar, in connection with the
performance or execution of the contents of this contract, any of its clauses or
provisions or any of the transactions referred to therein, without prior
agreement of the other party concerning the form and contents of such possible
communications.
12.12 Effects of the Contract. All the provisions of this contract indicating
obligations to be performed by the parties after the merger will remain in force
and fully valid including after the merger, pursuant to their terms, without
need for the parties to renew the assumption of their own commitments in
connection with such obligations.
12.13 Whole Agreement. The parties acknowledge and mutually take note that the
provisions of this agreement express their complete and entire will in
connection with its object and therefore, fully replace any prior pact or
agreement, including verbal, between them, in connection with the same object.
44
ARTICLE XIII
DISPUTE
-------
13.01 Arbitration. Unless a different jurisdiction is established in this
contract, any dispute arising from this contract or from possible agreements for
execution, amendment or addition, will be subject to the decision of an
arbitration board made up of three arbitrators, which will decided without
procedural formalities, except for the respect of the principle of hearing both
parties, but will apply Italian substantive law. The arbitration will be legal
pursuant to the provisions of the Code of Civil Procedure and will take place in
Milan.
13.02 Appointment of the Arbitrators. (a) The party which requests the
arbitration proceeding by notice sent through a process server must indicate, at
least in general lines, the petition submitted to arbitration and must designate
its own arbitrator at the same time, under penalty of invalidity.
(b) The party called to arbitration will have twenty (20) business
days to designate its own arbitrator. The two arbitrators of the parties will
designate by mutual concern the third arbitrator, which will preside the
arbitration board.
(c) Whenever the arbitrators, as appointed above, do not reach an
agreement concerning the appointment of the third arbitrator within twenty (20)
business days from the appointment of the second arbitrator, the latter will be
designated by the President of the Arbitration Chamber of Milan, at the request
of the most diligent party, after assigning an appropriate term for the hearing
of the other. The President of the Arbitration Chamber of Milan will also be
authorized to provide, pursuant to this point (c), whenever the party called to
arbitration fails to designate its own arbitrator within the aforementioned
term, or the arbitrator designated refuses the task, or becomes disabled or is
terminated from the task and is not replaced by the party which had appointed
him within twenty (20) business days, by another arbitrator, who accepted.
(d) For the purposes of this contract, the current Olimpia
shareholders will jointly be considered one party.
(e) Whenever, notwithstanding the provisions of the previous
paragraph (d), the dispute involves more than 2 parties, the arbitration board
will be made up (i) of three arbitrators appointed by the same method as
indicated in 13.02 (a) and 13.02 (b) above, or the parties involved will
spontaneously regroup in only two groups or (ii) whenever there is a conflict of
interest which does not allow for the appointment of an arbitrator, arising
between more than two parties, the multilateral dispute must be decided upon by
an arbitration board with three arbitrators, all designated by the President of
the Arbitration Chamber of Milan at the request of the party which asks for
arbitration, and after hearing the other parties involved in the dispute.
45
LIST OF ATTACHMENTS
-------------------
Attachment 1.44 Olivetti Instruments
Attachment 3(b)* Declaration - Hopa and Hopa Controlling
companies
Attachment 3(d)* Declaration - Olimpia and Current Olimpia
Shareholders
Attachment 5.02(i) Equity Situation of Olimpia
Attachment 5.02(ii) Equity Situation of Holy
Attachment 5.03(iii) Pro forma Equity Situation of Holy and Holinvest
Attachment 5.07(b) Bylaws of Olimpia
Attachment 5.10.1.1 Capital of Holinvest and Holy
Attachment 5.10.1.2 Equity Situation of Holinvest
Attachment 5.10.2.1(a) Capital of Olimpia
Attachment 5.10.2.1(b) Credit Rights of the Current Olimpia
Shareholders Against Olimpia
Attachment 5.10.2.4 Relevant Event (Olimpia)
Attachment 6.03(a) Directors Designated by Hopa
Attachment 6.05(b)(i) Exceptions to the Standstill Commitments
Attachment 6.05(b)(ii)(A)** Exceptions to the Standstill Commitments
Attachment 6.05(b)(ii)(B)*** Exceptions to the Standstill Commitments
Attachment 7.02(b) (ii) (A) Pledged Olivetti Instruments
Attachment 7.04 Bylaws of Holinvest
[* Document is not attached to this translation.
** Document is incorporated by reference to Exhibit 25 to Amendment No. 6 to
the Statement on Schedule 13D.
*** Document is incorporated by reference to Exhibit 36 to Amendment No. 10 to
the Statement on Schedule 13D.]
Milan, February 21, 2003
Pirelli S.p.A Edizione Finance International S.p.A.
Banca Intesa S.p.A. Unicredito Italiano S.p.A.
Olimpia S.p.A Hopa S.p.A.
In capacity of guarantor of the obligations of Edizione Finance
International S.A.: Edizione Holding S.p.A.
46
ATTACHMENT 1.44
OLIVETTI INSTRUMENTS
- 1.5% Olivetti 2001-2010 convertible bonds
- 1.5% Olimpia 2001-2007 convertible bonds
- 973 instruments (Equity Linked Notes) indexed to the performance of
486,500,000 Olivetti shares issued by CDC IXIS Capital Market, with
the following characteristics:
- maturity on February 20, 2008;
- exclusive discretionary right of the issuer to pay for the
instrument at maturity by physical delivery of 486,500,000
shares of Olivetti common stock, or the equivalent in cash;
- in the event of a request for early redemption of the
instrument by the bearer, (at any time after a period of 3
months has elapsed), the issuer shall pay a cash equivalent
on the basis of the shares of Olivetti common stock, or in
the event of low liquidity, the issues may choose to repay a
portion in cash and a portion in shares of Olivetti common
stock in accordance with the terms established in the
regulations;
- payment to the bearer of periodic gross interest equal to
85% of the dividends for 486,500,000 shares of Olivetti
common stock.
[all pages initialed by all parties]
ATTACHMENT 5.02 (i)
OLIMPIA S.P.A
HEAD OFFICE OF RECORD - XXXXX XXXXX, 000, XXXXX
CAPITAL STOCK OF 1,562,596,150 EURO, FULLY PAID-IN
TAX IDENTIFICATION CODE, VAT FILE NUMBER, AND MILAN COMPANIES
REGISTRY NO. 03232190961
R.E.A. N. 1659224
FIGURES STATED IN EURO
BALANCE SHEET
NOVEMBER 30, 2002 DECEMBER 31, 2001
ASSETS
A) CREDITS WITH SHAREHOLDERS FOR OUTSTANDING PAYMENTS 0 0
B) FIXED ASSETS
I) - INTANGIBLE 0 0
II) - TANGIBLE 0 0
III) - FINANCIAL CAPITALIZATIONS 7,921,508,604 7,989,193,185
EQUITY STAKES IN AFFILIATED COMPANIES 619,884,919 820,000,360
OTHER SECURITIES 8,541,393,523 8,609,193,545
TOTAL FIXED ASSETS 8,541,393,523 8,609,193,545
C) CURRENT ASSETS
I) - INVENTORY 0 0
II) - RECEIVABLES 92,435 116,144
WITH OTHERS DUE WITHIN 12 MONTHS 92,435 116,144
III) - FINANCIAL ASSETS THAT DO NOT CONSTITUTE CAPITALIZATIONS 0 0
IV) - LIQUIDITIES 2,829,515 1,291,580
1) BANK AND POSTAL DEPOSITS 2,829,515 1,291,580
TOTAL CURRENT ASSETS 2,921,950 1,407,724
D) ACCRUED INCOME AND PREPAID EXPENSES
ACCRUED INCOME 16,168,248 1,839,501
PREPAID EXPENSES 60,726,888 72,797,082
TOTAL ACCRUED INCOME AND PREPAID EXPENSES 76,895,136 76,636,583
TOTAL ASSETS 8,621,210,609 8,685,237,852
OLIMPIA S.P.A
HEAD OFFICE OF RECORD - XXXXX XXXXX, 000, XXXXX
CAPITAL STOCK OF 1,562,596,150 EURO, FULLY PAID-IN
TAX IDENTIFICATION CODE, VAT FILE NUMBER, AND MILAN COMPANIES
REGISTRY NO. 03232190961
R.E.A. N. 1659224
FIGURES STATED IN EURO
BALANCE SHEET
NOVEMBER 30, 2002 DECEMBER 31, 2001
LIABILITIES
A) CAPITAL AND RESERVES
I) - CAPITAL STOCK 1,562,596,150 1,562,596,150
II) - SHARE APPRECIATION RESERVE 3,637,403,874 3, 637,403,874
VIII) - PROFIT (LOSS) CARRIED FORWARD (31,371,787)
IX) - FISCAL YEAR PROFIT (LOSS) (227,979,075) (31,371,787)
TOTAL CAPITAL AND RESERVES 4,940,649,162 5,168,628,237
B) RISK AND CHARGE RESERVES 0 0
C) EMPLOYEE SEVERANCE PAY 0 0
D) DEBT
BOND DEBT
A) CONVERTIBLE WITHIN MORE THAN 12 MONTHS 776,720,354 753,826,639
BANK DEBT
A) MATURING WITHIN 12 MONTHS 227,500,000 166,000,000
B) MATURING WITHIN MORE THAN 12 MONTHS 2,574,684,449 2,574,684,449
SUPPLIER PAYABLES
A) DUE WITHIN 12 MONTHS 15,833 52,283
DEBT WITH CONTROLLING COMPANIES
A) DUE WITHIN 12 MONTHS 150,000 103,485
TAX INDEBTEDNESS
A) DUE WITHIN 12 MONTHS 3,200 11,021
OTHER DEBT
A) DUE WITHIN 12 MONTHS 61,650 4,283,393
TOTAL DEBT 3,579,135,486 3,498,961,270
E) ACCRUED EXPENSES AND DEFERRED INCOME
ACCRUED EXPENSES 101,425,961 17,648,345
TOTAL ACCRUED EXPENSES AND DEFERRED INCOME 101,425,961 17,648,345
TOTAL LIABILITIES 8,621,210,609 8,685,237,852
SUSPENSE ACCOUNTS
GUARANTEES
- PLEDGES OF SECURITIES 2,755,203,375 2,755,203,375
OTHER SUSPENSE ACCOUNTS
- PURCHASE OF SECURITIES FUTURES 360,293,044 360,653,768
TOTAL SUSPENSE ACCOUNTS 3,115,495,419 3,115,856,143
OLIMPIA S.P.A
HEAD OFFICE OF RECORD - XXXXX XXXXX, 000, XXXXX
CAPITAL STOCK OF 1,562,596,150 EURO, FULLY PAID-IN
TAX IDENTIFICATION CODE, VAT FILE NUMBER, AND MILAN COMPANIES
REGISTRY NO. 03232190961
R.E.A. N. 1659224
FIGURES STATED IN EURO
PROFIT AND LOSS STATEMENT
NOVEMBER 30, 2002 DECEMBER 31, 2001
A) VALUE OF PRODUCTION
TOTAL A) 0 0
B) COSTS OF PRODUCTION
SERVICES (586,787) (791,101)
MISCELLANEOUS OPERATING EXPENSES (164,014) (56,464)
TOTAL B) (750,801) (847,565)
DIFFERENCE BETWEEN VALUE AND COSTS OF PRODUCTION (A - B) (750,801) (847,565)
C) FINANCIAL REVENUES AND CHARGES
OTHER FINANCIAL REVENUES
A) FROM SECURITIES ENTERED UNDER FIXED ASSETS THAT DO NOT CONSTITUTE
EQUITY STAKES 14,328,747 1,839,501
B) REVENUES OTHER THAN THE FOREGOING:
1) - EARNED BANK INTEREST 79,426,217 352,134
FINANCIAL INTEREST AND OTHER CHARGES:
A) INTEREST CHARGES ON BOND ISSUES (19,033,806) (4,599,780)
B) INTEREST CHARGES FROM CONTROLLING COMPANIES (75,124)
C) BANK INTEREST CHARGES (216,848,570) (25,911,775)
D) OTHER INTEREST AND FINANCIAL CHARGES (15,372,548) (2,129,178)
TOTAL C) (157,499,960) (30,524,222)
D) ADJUSTMENTS TO THE VALUE OF FINANCIAL ASSETS (68,422,041)
WRITEDOWNS (68,422,041) 0
E) EXTRAORDINARY REVENUES AND CHARGES (1,306,273)
TOTAL E) (1,306,273) 0
BEFORE TAX RESULT (227,979,075) (31,371,787)
22) INCOME TAX FOR THE PERIOD 0
26) PROFIT (LOSS) FOR THE PERIOD (227,979,075) (31,371,787)
ATTACHMENT 5.02 (ii)
HOLY S.R.L. UNIPERSONALE
HEAD OFFICE: XXXXX XXXXXXXXXX XX. 00, XXXXXXX
CAPITAL STOCK: 10,000,000 EURO FULLY PAID IN
BRESCIA C.C.I.A.A. COMPANIES REGISTRY NO.: 03517530170 - R.E.A. NO. 411580
TAX IDENTIFICATION CODE: 03517530170
FINANCIAL REPORTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 2002
PREPARED IN ABBREVIATED FORM IN ACCORDANCE WITH ARTICLE 2435 BIS
BALANCE SHEET
ASSETS 12/31/2002 12/31/2001
------------------------------------------------------------------------- -------------------------- ------------------------
EURO EURO
------------------------------------------------------------------------- -------------------------- ------------------------
A) CREDITS WITH SHAREHOLDERS FOR OUTSTANDING PAYMENTS 0 0
------------------------------------------------------------------------- -------------------------- ------------------------
B) FIXED ASSETS:
I - INTANGIBLE FIXED ASSETS: 236 2,598
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL INTANGIBLE FIXED ASSETS 236 2,598
II - TANGIBLE FIXED ASSETS: 0 28,084
DEPRECIATION RESERVE 0 -15,617
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL TANGIBLE FIXED ASSETS 0 9,467
III - FINANCIAL CAPITALIZATIONS: 354,876,873 0
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL FINANCIAL CAPITALIZATIONS 354,876,873 0
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL FIXED ASSETS 354,877,108 12,065
------------------------------------------------------------------------- -------------------------- ------------------------
C) CURRENT ASSETS:
I- INVENTORY 0 0
II - RECEIVABLES 6,975 24,519
III - UNCAPITALIZED FINANCIAL ASSETS 0 0
IV - LIQUIDITIES 17,643,281 6,367
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL WORKING CAPTIAL 17,650,257 30,886
------------------------------------------------------------------------- -------------------------- ------------------------
D) ACCRUED INCOME AND PREPAID EXPENSES 0 785
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL ASSETS 372,527,365 43,736
------------------------------------------------------------------------- -------------------------- ------------------------
LIABILITIES 12/31/2002 12/31/2001
------------------------------------------------------------------------- -------------------------- ------------------------
EURO EURO
------------------------------------------------------------------------- -------------------------- ------------------------
A) CAPITAL AND RESERVES:
I - CAPITAL STOCK 10,000 10,000
II - SHARE APPRECIATION RESERVE 0 0
III - REVALUATION RESERVE 0 0
IV - LEGAL RESERVE 0 0
V - RESERVE FOR SHARES IN COMPANY PORTFOLIO 0 0
VI - RESERVE MANDATED BY THE BYLAWS 0 0
VII - OTHER RESERVES 244,000,000 0
VIII - PROFITS (LOSSES) CARRIED FORWARD -889 -1,158
IX - FISCAL YEAR PROFIT (LOSS) 12,545 269
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL CAPITAL AND RESERVES 244,021,655 9,111
------------------------------------------------------------------------- -------------------------- ------------------------
B) RISK AND CHARGE RESERVE 0 0
------------------------------------------------------------------------- -------------------------- ------------------------
C) EMPLOYEE SEVERANCE PAY [GBL] 0 0
------------------------------------------------------------------------- -------------------------- ------------------------
D) DEBT 128,505,710 34,625
------------------------------------------------------------------------- -------------------------- ------------------------
E) ACCRUED EXPENSES AND DEFERRED INCOME 0 0
------------------------------------------------------------------------- -------------------------- ------------------------
TOTAL LIABILITIES 372,527,365 43,736
------------------------------------------------------------------------- -------------------------- ------------------------
PROFIT AND LOSS STATEMENT
12/31/2002 12/31/2001
------------------------------------------------------------------------------- ------------------------- ---------------------
EURO EURO
------------------------------------------------------------------------------- ------------------------- ---------------------
A) VALUE OF PRODUCTION
1) SALES AND SERVICES REVENUES 18,199 38,084
------------------------------------------------------------------------------- ------------------------- ---------------------
TOTAL VALUE OF PRODUCTION 18,199 38,084
------------------------------------------------------------------------------- ------------------------- ---------------------
B) COSTS OF PRODUCTION:
6) FOR RAW MATERIALS, SUBSIDIARY MATERIALS, CONSUMABLES, MERCHANDISE 0 1,806
7) SERVICE PURCHASING COSTS 10,471 16,485
8) COSTS OF THE USE OF THIRD PARTY ASSETS 3,543 5,871
10) DEPRECIATION AND WRITEDOWNS:
A) INTANGIBLE ASSET DEPRECIATION 296 1,299
B) TANGIBLE ASSET DEPRECIATION 0 7,551
D) WRITEDOWNS OF RECEIVABLES ENTERED UNDER CURRENT ASSETS 2,126 0
2,362 8,850
14) MISCELLANEOUS OPERATING COSTS 3,647 2,806
------------------------------------------------------------------------------- ------------------------- ---------------------
TOTAL PRODUCTION COSTS 20,023 35,818
------------------------------------------------------------------------------- ------------------------- ---------------------
DIFFERENCE BETWEEN VALUE AND COSTS OF PRODUCTION
(A - B) -1,824 2,266
------------------------------------------------------------------------------- ------------------------- ---------------------
C) FINANCIAL REVENUES AND CHARGES 16) OTHER FINANCIAL REVENUES
REVENUES OTHER THAN THE FOREGOING 20,618 0
17) INTEREST AND OTHER FINANCIAL CHARGES -5,297 -1,996
------------------------------------------------------------------------------- ------------------------- ---------------------
TOTAL (16 - 17) 15,320 -1,996
------------------------------------------------------------------------------- ------------------------- ---------------------
E) EXTRAORDINARY REVENUES AND CHARGES
20) EXTRAORDINARY REVENUES: 10,249 0
21) EXTRAORDINARY CHARGES: -9,467 0
------------------------------------------------------------------------------- ------------------------- ---------------------
TOTAL (20) 782 0
------------------------------------------------------------------------------- ------------------------- ---------------------
BEFORE TAX RESULT 14,279 269
------------------------------------------------------------------------------- ------------------------- ---------------------
22) FISCAL YEAR INCOME TAX 1,734 0
26) FISCAL YEAR PROFIT (LOSS) 12,545 269
------------------------------------------------------------------------------- ------------------------- ---------------------
ATTACHMENT 5.03 (iii)
HOLY S.R.L. UNIPERSONALE
PRO FORMA STATEMENT OF FINANCIAL POSITION ON THE BASIS OF THE CONTRACT BETWEEN
OLIMPIA, OLIMPIA SHAREHOLDERS, AND HOPA
(FIGURES STATED IN EURO)
12/31/02 PRO FORMA
PROFORMIZATION
ASSETS
A) CREDITS WITH SHAREHOLDERS
B) FIXED ASSETS
I INTANGIBLE FIXED ASSETS
1. PLANT AND EQUIPMENT COSTS 236 0 236
TOTAL 236 0 236
II TANGIBLE FIXED ASSETS 0 0
III FINANCIAL CAPITALIZATIONS
1. EQUITY STAKES IN
D) OTHER COMPANIES - OLIVETTI SHARES 226,371,772 226,371,772
- HOLINVEST S.P.A. 128,505,101 256,894,899 385,400,000
3. OTHER SECURITIES - OLIVETTI CONVERTIBLE BONDS 250,563,228 250,563,228
TOTAL 354,876,873 507,458,127 862,335,000
TOTAL FIXED ASSETS (B) 354,877,309 507,458,127 862,335,236
C) CURRENT ASSETS
I INVENTORY 0 0 0
II RECEIVABLES
4. WITH OTHERS
DUE WITHIN 12 MONTHS 6,975 6,975
TOTAL 6,975 0 6,975
IV LIQUIDITIES
1. BANK AND POSTAL DEPOSITS 17,643,269 81,150,116 98,793,385
3. CASH AND SECURITIES ON HAND 12 12
TOTAL 17,643,281 81,150,116 98,793,397
TOTAL CURRENT ASSETS (C) 17,650,256 81,150,116 98,800,372
D) ACCRUALS 0
TOTAL ASSETS 372,527,365 588,608,243 961,135,608
LIABILITIES 12/31/02 PRO FORMA
PROFORMIZATION
A) CAPITAL AND RESERVES
I CAPITAL STOCK 10,000 10,000
IV LEGAL RESERVE 0
VII OTHER RESERVES 244,000,000 717,113,344 951,113,344
VIII PROFITS (LOSSES) CARRIED FORWARD (889) (889)
IX FISCAL YEAR PROFIT (LOSS) 12,545 12,545
TOTAL CAPITAL AND RESERVES (A) 244,021,656 717,113,344 961,195,000
D) DEBT
6. SUPPLIER PAYABLES
DUE WITHIN 12 MONTHS 0
9. DEBT WITH CONTROLLING COMPANIES
DUE WITHIN 12 MONTHS 128,505,101 (128,505,101) 0
10. TAX INDEBTEDNESS
DUE WITHIN 12 MONTHS 0
13. OTHER DEBT
DUE WITHIN 12 MONTHS 608 0 608
TOTAL DEBT (D) 128,505,709 (128,505,101) 608
E) ACCRUALS
TOTAL LIABILITIES AND CAPITAL AND RESERVES 372,527,365 588,608,243 961,135,608
PROFIT AND LOSS STATEMENT 12/31/02 PRO FORMA
PROFORMIZATION
A) VALUE OF PRODUCTION
1. SALES AND SERVICES REVENUES 18,199 18,199
2. OTHER REVENUES 0 0
TOTAL VALUE OF PRODUCTION (A) 18,199 0 18,199
B) COSTS OF PRODUCTION
7. FOR SERVICES (10,471) (10,471)
8. FOR THE USE OF THIRD PARTY ASSETS (3,543) (3,543)
10. DEPRECIATION AND WRITEDOWNS: 0
A) INTANGIBLE ASSET DEPRECIATION (236) (236)
B) TANGIBLE ASSET DEPRECIATION 0 0
D) WRITEDOWN OF RECEIVABLES ENTERED UNDER CURRENT ASSETS (2,126) (2,126)
14. MISCELLANEOUS OPERATING COSTS (3,647) (3,647)
TOTAL COSTS OF PRODUCTION (B) (20,023) 0 (20,023)
DIFFERENCE BETWEEN VALUE AND COST OF PRODUCTION (A-B) (1,324) 0 (1,824)
C) FINANCIAL REVENUES AND CHARGES
16. OTHER FINANCIAL REVENUES
MISCELLANEOUS REVENUES 20,617 20,617
17. INTEREST AND OTHER FINANCIAL CHARGES (5,297) (5,297)
TOTAL FINANCIAL REVENUES AND CHARGES (C) 15,320 0 15,320
D) ADJUSTMENTS TO THE VALUE OF FINANCIAL ASSETS
E) EXTRAORDINARY REVENUES AND CHARGES
20. REVENUES 10,249
21. EXTRAORDINARY CHARGES (9.466)
TOTAL EXTRAORDINARY REVENUES AND CHARGES (E) 783 0 0
BEFORE TAX RESULT 14,279 0 13,496
22. FISCAL YEAR INCOME TAXES (1,734)
FISCAL YEAR PROFIT (LOSS) 12,545 0 13,496
HOLINVEST S.P.A.
PRO FORMA STATEMENT OF FINANCIAL POSITION ON THE BASIS OF THE CONTRACT BETWEEN
OLIMPIA, OLIMPIA SHAREHOLDERS, AND HOPA
(FIGURES STATED IN EURO)
BALANCE SHEET
ASSETS 12/31/02 PROFORMIZATION PRO FORMA
SUBENTRIES ENTRIES SUBENTRIES ENTRIES SUBENTRIES ENTRIES
10 CASH AND LIQUIDITIES 289 289
20 CREDITS WITH CREDIT INSTITUTIONS 1,234,497 0 1,234,497
(A) - SIGHT 1,234,497 1,234,497
(B) - OTHER CREDITS 0 0
30 CREDITS WITH FINANCIAL INSTITUTIONS 20,169,400 0 20,169,400
(A) - SIGHT 0 0
(B) - OTHER CREDITS
- CREDITS W. XX XXXXXX 20,169,400 20,169,400
40 CLIENT RECEIVABLES 0 0
50 BONDS AND OTHER FIXED YIELD SECURITIES 1,015,228,221 779,181,290 1,814,409,511
(D) - FROM OTHER ISSUERS
- XXXXXXX XXXXX 429,180,641 (429,180,641) 0
- 2010 OLIVETTI CONVERTIBLE BONDS 435,401,655 325,355,271 760,756,926
- 2010 PUT OLIVETTI CONVERTIBLE BONDS 100,000,000 (100,000,000) 0
- INTERBANCA Z/C BONDS 50,645,904 50,645,904
- 2004 OLIVETTI BONDS 22 22
- OLIVETTI INDEXED CDC BONDS 1,003,006,660 1,003,006,660
60 SHARES, PARTNERSHIP INTERESTS AND
OTHER VARIABLE YIELD SECURITIES 684,632,135 (684,629,366) 2,769
WHICH INCLUDE:
- OLIVETTI SHARES 664,149,047 (664,146,278) 2,769
- BANCA POPOLARE DI LODI SHARES 20,188,276 (20,188,276) 0
- BANCA LOMBARDA SHARES 294,812 (294,812) 0
70 EQUITY STAKES 0 0
80 EQUITY STAKES IN GROUP FIRMS 0 0
90 INTANGIBLE FIXED ASSETS 8,664 0 8,664
WHICH INCLUDE
- INITIAL CAPITAL EXPENDITURES 8,664 8,664
100 TANGIBLE FIXED ASSETS 0 0
110 CAPITAL STOCK SUBSCRIBED AND NOT PAID IN 0 0
120 COMPANY SHARES OR INTERESTS HELD 0 0
130 OTHER ASSETS 16,034,032 16,034,032
WHICH INCLUDE: 851,736 851,736
- OTHER CREDITS 0
- TREASURY FOR C-RIT EARNED INTEREST ON
CHECKING ACCOUNTS 171,026 171,026
- ORDINARY TAX CREDIT 280,766 280,766
- LIMITED TAX CREDIT 13,202,284 13,202,284
- TREASURY FOR C-RIT EARNED INTEREST ON
BONDS 161,076 161,076
- PREPAID TAXES 1,317,059 1,317,059
- CORPORATE INCOME TAX CREDIT 50,085 50,085
140 ACCRUED REVENUES AND PREPAID EXPENSES 0 0
LIABILITIES 12/31/02 PROFORMIZATION PRO FORMA
SUBENTRIES ENTRIES SUBENTRIES ENTRIES SUBENTRIES ENTRIES
10 DEBT WITH CREDIT INSTITUTIONS 297,866,898 201,736,365 499,603,263
(A) - SIGHT 272,041,335 201,736,365 473,777,701
(B) - TERM AND WITH ADVANCE NOTICE
- DEBT W. BANCA POP. VIC. 25,825,563 25,825,563
20 DEBT WITH FINANCIAL INSTITUTIONS 400,312,503 0 100,312,503
(A) - SIGHT 0 (100,000,000) 0
(B) - TERM AND WITH ADVANCE NOTICE
- DEBT W. HOPA 27,667,133 27,667,153
- DEBT W. XX XXXXXX 317,893,750 (100,000,000) 217,893,750
- DEBT W. B. ANOTONVENETA 54,751,620 54,751,620
30 DEBT WITH CLIENTS 0 0
40 DEBT IN CREDIT INSTRUMENTS 0 0
50 OTHER LIABILITIES 5,840,744 (5,500,000) 340,744
60 ACCRUED EXPENSES AND DEFERRED INCOME 0 0
70 EMPLOYEE SEVERANCE PAY 0 0
80 RISK AND CHARGE RESERVES 13,683,349 0 13,683,349
B) - FUNDS AND TAXES RESERVES 13,689,349 13,683,349
90 BAD DEBT RESERVES 0 0
100 GENERAL FINANCIAL RISK RESERVES 0 0
110 CONTINGENT LIABILITIES 0 0
120 CAPITAL STOCK 514,000,000 514,000,000
130 SHARE PREMIUMS 498,550,000 498,550,000
140 RESERVES 22,154,674 13,604,680 35,759,354
(A) - LEGAL RESERVE 25,281 25,281
(C) - RESERVES MANDATED BY THE BYLAWS 480,330 480,330
(D) - OTHER RESERVES 21,649,064 13,604,680 35,253,744
150 REVALUATION RESERVES [WC] [GBL] 0 0
160 PROFITS (LOSSES) CARRIED FORWARD 0 0
170 FISCAL YEAR PROFIT (LOSS) (15,100,931) 4,710,879 (10,390,052)
TOTAL LIABILITIES 1,737,307,237 114,551,924 1,851,859,161
PROFIT AND LOSS STATEMENT
12/31/02] PROFORMIZATION] PRO FORMA]
SUBENTRIES ENTRIES SUBENTRIES ENTRIES SUBENTRIES ENTRIES
10 INTEREST CHARGES AND SIMILAR CHARGES 15,320,503 15,320,503
20 FEES AND COMMISSIONS PAID 0 216,677 216,677
30 LOSSES FROM FINANCIAL TRANSACTIONS 0 580,578 580,578
40 ADMINISTRATIVE OVERHEAD EXPENSES 81,959 81,959
50 ADJUSTMENTS IN VALUE TO TANGIBLE AND INTANGIBLE 0 0
FIXED ASSTS
60 OTHER OPERATING COSTS 0 0
70 RISK AND CHARGE RESERVE ALLOCATIONS 0 0
80 BAD DEBT RESERVE ALLOCATIONS 0 0
90 ADJUSTMENTS IN VALUE TO LOCK-UP FOR
GUARANTEES AND OBLIGATIONS 0 0
100 ADJUSTMENTS IN VALUE TO FINANCIAL
CAPITALIZATIONS 0 8,252 0
110 EXTRAORDINARY CHARGES 0 8,252
120 POSITIVE CHANGE IN GENERAL FINANCIAL RISK
FUND 0 0
130 FISCAL YEAR INCOME TAXES 0 0
140 FISCAL YEAR PROFIT 0 4,710,879 4,710,879
TOTAL COSTS 15,402,462 5,516,386 20,718,849
REVENUE
12/31/02] PROFORMIZATION] PRO FORMA]
SUBENTRIES ENTRIES SUBENTRIES ENTRIES SUBENTRIES ENTRIES
10 EARNED INTEREST AND SIMILAR REVENUES 195,426 0 195,426
INCLUDING:
- ON FIXED YIELD SECURITIES 0 0
- OTHER 195,426 195,426
20 DIVIDENDS AND OTHER REVENUES 0 0
30 EARNED FEES AND COMMISSIONS 0 0
40 PROFITS FROM FINANCIAL TRANSACTIONS 104,274 5,516,386 5,620,661
50 APPRECIATION OF LOCK-UP FOR
GUARANTEES AND OBLIGATIONS 0 0
60 APPRECIATION OF FINANCIAL CAPITALIZATIONS 0 0
70 OTHER OPERATING REVENUES 1,831 1,831
80 EXTRAORDINARY REVENUES 0 0
90 NEGATIVE CHANGE IN GENERAL FINANCIAL RISK
FUND 0 0
100 FISCAL YEAR LOSS 19,100,931 15,100,931
TOTAL REVENUES 15,402,462 5,516,386 20,918,849
NOTES:
Detailed status of Olivetti convertible bonds
- Total bonds owned 398,129,448
Including:
- Olivetti bonds encumbered by XX Xxxxxx call and given to same under a securities 100,000,000
loan 200,000,000
- Olivetti bonds given to XX Xxxxxx under a securities loan 77,055,380
- Olivetti bonds given to Fingruppo Holding under a securities loan 307,055,350
Total Olivetti convertible bonds provided under securities loans 21,074,098
- Unencumbered Olivetti bonds
Detailed position of CDC bonds indexed to Olivetti shares subject to pledging:
- Pledged CDC bonds indexed to Olivetti shares 270,000,000
- Unencumbered CDC bonds indexed to Olivetti shares 216,500,000
Total 486,500,000
Banks holding pledge rights:
Banca Popolare Vicentina
Banca Agricola Mantovana
Banca Popolare Antoniana Veneta
Banco di Roma
Banco di Brescia
ATTACHMENT 5.07 (b)
BY-LAWS OLIMPIA
CORPORATE BY-LAWS
Article 1
NAME OF THE CORPORATION
A Corporation has been formed, called Olimpia S.p.A.
Article 2
OBJECT OF THE CORPORATION
The object of the Corporation is the participation in, the financing
of, the cooperation with, the management of, and the rendering of consulting
services and other services to legal persons or other companies, among which in
particular, those having as their object the development, implementation, and
management of telecommunications systems in general of any type, including broad
band, data transmission, video, and domestic and international telephone
services, e-business and media activities, telephone directory activities,
advertising development, and television.
In order to reach the aforementioned objective, the Corporation may
perform all the financial, industrial, and real estate transactions which are
deemed by the Board of Directors to be necessary or useful in order to reach the
objective of the Corporation; the Corporation may also grant promissory notes,
pledges, and any other type of guarantees, even real estate guarantees, to third
parties.
However, the Corporation is excluded from conducting activities which
are expressly reserved by law to special categories of companies and from those
activities established by Legislative Decree 58/1998, by Law 77/1983, by
Legislative Decree 95/1974, and by Legislative Decree 385/1993, and from
conducting - directly with the public - any activity defined by the "financial
activity" law.
Article 3
HEADQUARTERS
The Corporation has headquarters on Xxxxx Xxxxx, xx. 000, xx Xxxxx.
The Corporation has the right to open, modify, or close secondary
offices, branches, and agencies, in the manner so required, both in Italy and
abroad.
Article 4
TERM
The term of the Corporation has been established up to 12/31/2050
(December thirty-first, two thousand fifty) and may be extended in accordance
with the law.
Article 5
CORPORATE CAPITAL
The Corporate Capital is comprised of Euro 1,860,233,510 (one billion
eight hundred sixty million two hundred thirty three thousand five hundred and
ten Euro) divided into n. 1,860,233,510 (one billion eight hundred sixty million
two hundred thirty three thousand five hundred and ten) Shares, with a nominal
value of 1 (one) Euro each. The Corporation may satisfy its own financial needs
by taking advantage of financing on the part of its stockholders, within the
limits and under the conditions established by current law and the current
regulations governing such transactions, and in particular, according to the
criteria established by the Interdepartmental Committee for Financing and
Savings.
Article 6
SHARES
(THE RIGHT OF PREEMPTION)
6.1 Shareholders who wish to move their stock in any manner, this
being understood as selling the stock for cash, transferring it, giving it as a
gift, or donating it, or any other type of transaction that leads to the direct
or indirect transfer, to third parties or to other stockholders, of the
Corporation stock, of bonds which may be converted into stock and/or rights to
underwrite stock, or real rights for the use of the stock and/or guarantees
relating to the aforementioned stock and convertible bonds, or any other rights
relating to the aforementioned Shares of stock or convertible bonds (hereinafter
referred to as the "Rights"), must first offer the right of preemption for the
Rights - established herein - to move the stock to all other stockholders, under
the same conditions, in proportion to the Shares held by each of them in the
Corporation, notwithstanding the right to increase the Share base enjoyed by
each Shareholder.
6.2 The right of preemption may be exercised in accordance with the
following terms and conditions:
(i) A Shareholder (hereinafter referred to as the "Party
Making the Offer") who intends to proceed with the sale of the Rights
that he holds will be obligated to offer them preemptively to other
Shareholders, through registered letter with return receipt required,
containing the identity of the proposed buyer, the price, and the
other conditions of sale, in addition to the warning that in the event
that one of the Shareholders does not wish or is not able to exercise
the right of preemption, the Rights pertaining to this Shareholder
will automatically increase proportionally in favor of those
Shareholders who instead, intend to take advantage of this opportunity
and who have not previously expressly waived the right of preemption
that they hold.
(ii) The right of preemption may be exercised through a
communication sent by registered mail with return receipt required,
sent to the Party Making the Offer and to each of the Shareholders
within the term, established for its expiration, of forty-five (45)
calendar days from the receipt of the offer discussed in point (i)
above, it being understood that, if express waiver is not made, this
right of preemption shall be understood as automatically exercised
also in respect to the Rights that have increased proportionally for
each Shareholder as a result of the failure to exercise the right of
preemption on the part of one or more Shareholders holding this right.
(iii) In the event that the right of preemption is not
exercised within the terms indicated above in respect to all the
Rights offered, the Party Making the Offer, in the event that he does
not wish to accept the exercising of the right of preemption limited
to only a part of the Rights offered for sale, may transfer all the
Rights to the buyer indicated in the offer discussed in point (i)
above, in terms which are no more favorable for that buyer than the
terms stipulated in the aforementioned offer, within ninety (90) days
from the expiration of the aforementioned term established in point
(ii) above, or, in the event that the Party Making the Offer decides
to accept the exercising of the right of preemption limited to only a
part of the Rights offered for sale, he may, within the same term of
ninety (90) days, transfer the remaining Rights of preemption to the
buyer indicated in the offer discussed in point (i) above, in
accordance with the conditions that shall be agreed upon with this
buyer. In the event that the sale is not concluded within the term
indicated, the Party Making the Offer must again satisfy the
conditions established in this section.
(iv) In the event that the Party Making the Offer intends to
sell his own Shares through a counter-offer in kind, the Shareholders
who intend to exercise their right of preemption must indicate, again
in the manner and within the term established in the above sections,
whether they intend to accept the counter-offer in kind or for the
equivalent in cash, and, in the latter case, the purchase price shall
be determined by common agreement or in accordance with Article 1473
of the Civil Code.
6.3 The regulations established above also apply to any other action
or negotiation, of any nature, even in terms of a free gift, which involves the
transfer, in any manner whatsoever, of the Rights enjoyed by the Shareholders,
it being understood that the stipulations established in section 6.1 above shall
be applicable even when there is no notification, no offer, or no determination
of a price in cash for the purposes of this offer, and in this case, the
purchase price shall be determined by common agreement or in accordance with
Article 1473 of the Civil Code.
6.4 Notwithstanding the stipulations established in sections 6.1 and
6.2, the transfer of any real rights of use of the Shares in an agreement
established between living entities shall be admitted only on the condition that
this transfer does not involve in any manner the loss of voting rights on the
part of the parties involved.
6.5 Notwithstanding the stipulations established in sections 6.1 and
6.2, the transfer of any real rights guaranteed on the Shares shall not be
allowed and shall not be valid in respect to the Corporation if it has not been
previously approved by the other Shareholder(s). This approval may not be
refused, in the event of the transfer of the guarantee itself, when all the
rights of preemption established by Article 6 herein have been respected.
6.6 Notwithstanding the points established in the above sections, the
Rights may be transferred, in whole or in part, by Shareholders to companies
that hold the entire Corporate Capital of the stockholder making the transfer or
to companies of which the Shareholder making the transfer holds the entire
Corporate Capital, on the condition that the Shareholder give prior notice of
this fact to the other Shareholders.
Article 7
SHARES
(SALE)
(a) In the event that a Shareholder who holds Shares that represent
an absolute majority (50.01%) of the Corporate Capital (hereinafter referred to
as the "Majority Shareholder") intends to conduct transactions that lead to the
transfer to a third party or another Shareholder (hereinafter referred to as the
"Buyer") of all his Shares or a part of these, the other Shareholder(s)
(hereinafter referred to as the "Minority Shareholders"), in the event that they
do not wish to exercise their right of preemption as established in Article 6
above, shall have the right to transfer to the same Buyer and under the same
terms and conditions: (i) the part of their own Shares proportional to the
number of Shares that the Majority Shareholder shall offer for sale, when the
Majority Shareholder, as a result of the aforementioned transaction(s), remains
the bearer of an absolute majority of the Corporate Capital (50.01%); and (ii)
in the event of the sale of all the Shares held by the Majority Shareholder or
the transfer of a sufficient number of Shares that the Majority Shareholder
comes to hold, as a result of the transfer, less than an absolute majority of
the Corporate Capital (50.01%), the Minority Shareholders shall have the right
and the obligation to transfer all their Shares together with those of the
Majority Shareholder.
(b) To these effects, the Majority Shareholder who intends to proceed
with the sale of Shares that he holds, shall be obligated to provide written
communication by registered letter with return receipt required, to the Minority
Shareholders, also informing them of the identity of the Buyer, the number of
Shares offered for sale, the price and the other conditions of sale.
(c) In the event that the Minority Shareholders wish to exercise the
right established herein in their favor, they must inform the Majority
Shareholder, by registered letter with return receipt required, in the term of
fifteen (15) calendar days from the receipt of the communication discussed in
point (b) above; and if they do not do so within that term this right shall
expire.
(d) In the event that the object of the sale should be all the Shares
held by the Majority Shareholder or a sufficient number of Shares that the
Majority Shareholder comes to hold, as a result of the transfer, less than an
absolute majority of the Corporate Capital, the Minority Shareholders shall have
the obligation to transfer all their Shares under the same terms and conditions
proposed by the Buyer to the Majority Shareholder.
(e) In the event that the Buyer does not intend to purchase the
Shares held by the Minority Shareholders, the Majority Shareholder may not
proceed with the sale.
Article 8
CORPORATION SHARES HELD - CATEGORIES
OF BOND LOANS - FINANCIAL INSTRUMENTS
The Corporation may proceed to purchase its own Shares in accordance
with the stipulations established by civil regulations governing the matter.
The Corporation may issue bearer or registered bonds, convertible
bonds or bonds with warrants, and warrants in accordance with regulations
governing the matter.
The Corporation may also issue other categories of Shares, even
Shares without voting rights, and financial instruments, in accordance with
regulations governing the matter.
Article 9
ASSEMBLY OF THE SHAREHOLDERS
A regularly constituted Assembly represents all the Shareholders and
their decisions made in accordance with the law, and the present Corporate
By-Laws shall be binding for all Shareholders.
The Assembly shall be considered Ordinary and Extraordinary in
accordance with the law and shall be convened even outside the legal offices of
the Corporation, as long as it takes place within the territory of the Republic
of Italy, at least 15 (fifteen) days prior to the Assembly, in the manner
established by Article 2366 of the Civil Code.
The meeting announcement may also establish a different day for the
second convocation.
The Ordinary Assembly must be called at least once per year for the
approval of the Balance Sheet, within four months of the closing of the fiscal
year of the Corporation.
The Ordinary Assembly for the approval of the balance sheet may be
called within six months from the closing of the Fiscal Year if special needs so
require; the nature and composition of these needs must be established by the
Board of Directors with a specific decision, before the expiration of the
ordinary term to convene the Ordinary Assembly of Shareholders.
The Assembly shall also be convened by the Chairman of the Board when
a request has been made by a majority of the Board Members, or by enough
Shareholders to represent at least 1/6 (one sixth) of the Corporate Capital.
The Assembly may grant the Board of Directors the right to increase
the Corporate Capital, in the manner and in accordance with the terms
established by Article 2443 of the Civil Code.
Ordinary and extraordinary assemblies are also validly and regularly
constituted if they take place with participations from several places, related
by audio/video, provided that:
the Chairman of the Assembly is allowed to verify the
identity and legitimate status of the participants, to regulate the
course of the meeting, to find and announce the results of voting;
it is possible for the person who draws up the minutes to
hear the events of the meeting which are entered in the minutes;
the participants are allowed to take part in the discussion
and simultaneous voting on the items on the agenda;
the notice of invitation (except in full assembly) indicates
the audio/video places linked by the company, in which the
participation may take place, considering the meeting held at the
place where the president and the person who draws up the minutes are
found.
Article 10
PARTICIPATION IN THE ASSEMBLY
Participation in the Assembly is governed by the stipulations of law
on the matter.
Every Shareholder that has the right to participate in the Assembly
may be represented by another person, even if this person is not a Shareholder
himself or herself, through the conferral of a written proxy, with the
limitations established by law.
Article 11
PROXIES - PRESIDING OVER THE ASSEMBLY
The Assembly shall be presided over by the Chairman of the Board of
Directors, or, in the event of the absence or unavailability of the Chairman, by
the Vice-Chairman or any other Board Member named by the Board of Directors
itself; if this is not possible, the Assembly shall be presided over by the
person named by a majority of the votes of the Shareholders present.
A Secretary named by the Assembly shall assist the person who
presides over the Assembly. The attendance of a Secretary shall not be necessary
when the minutes of the Assembly are taken by a Notary Public.
Article 12
CONSTITUTION OF THE ASSEMBLY AND VALIDITY OF DECISIONS
An Ordinary Assembly shall be considered regularly constituted and
shall make decisions with the majorities established in accordance with the law.
An Extraordinary Assembly shall be regularly constituted and shall
make decisions with the favorable votes of as many Shareholders necessary to
represent at least 83,5% of the Corporate Capital.
For the validity of the deliberations to modify or eliminate the
list-voting clause for the appointment of Directors, as well as for the
modification of the number of Members of the Board of Directors, the
Extraordinary Assembly must have the favorable vote of Shareholders representing
91% of the corporate capital.
Article 13
LIST VOTING
Notwithstanding the stipulations established in Article 12 for the
Ordinary Assembly, the naming of Members of the Board of Directors shall occur
on the basis of lists presented by the Shareholders (each Shareholder shall be
allowed to present only one list) in which the candidates (whose maximum number
shall be the number of Board Members on the Board of Directors) (OR IF NO
AMENDMENT OF ARTICLE 14 IS RESOLVED: "(THE MAXIMUM NUMBER OF WHICH MAY NOT
EXCEED 5)" must be listed in progressive number. Each candidate may appear in
only one list or else he shall be declared ineligible. The candidates on each
list presented shall be assigned a percentage equal to the number of votes
obtained by the list divided by one for the first candidate, two for the second
candidate, three for the third candidate, four for the fourth candidate, and so
on. The candidates from all the lists shall be arranged in a list in descending
order according to the percentage of votes obtained by each of them. Within the
limit of the number of Board Members, the winners of the election will be those
who obtained the highest percentage of votes. In the event of a tie in
percentage for the last Board Member to be elected, the one from the list that
obtained the highest number of votes shall be given preference, and, in the
event of an equal number of votes, the one who is oldest shall be given
preference.
Article 14
THE BOARD OF DIRECTORS
The Corporation shall be managed by a Board of Directors composed of
10 (ten) (OR IF NO AMENDMENT OF ARTICLE 13 IS RESOLVED: "11 (ELEVEN)" Members,
even those who are not Shareholders, named by applying the list voting clause
established in Article 13.
The Board may name one or more Alternate Board Members and an
Executive Committee composed of at least three Members, one of which shall be
the Alternate Chairman, if so named.
They shall remain in office for a term of three years and they also
may be re-elected.
Article 15
MANAGEMENT OF THE CORPORATION
(THE CHAIRMAN AND THE VICE-CHAIRMAN)
Each time that it is renewed, the Board shall elect a Chairman from
among its Members, if this person is not named by the Assembly. The Board shall
also name a Vice-Chairman.
Article 16
MANAGEMENT OF THE CORPORATION
(CONVOCATION OF THE BOARD OF DIRECTORS)
The Board of Directors shall be convened at the legal headquarters of
the Corporation or elsewhere, as long as it is in the territory of the Republic
of Italy, by the Chairman of the Board or, in his absence or unavailability, by
the Vice-Chairman, on his own initiative or at the request of at least two
Members of the Board. Communication to Board Members shall be done by registered
letter, or, in the event of urgency, by telegram, telex, fax, or any other means
of which receipt can be proven, sent respectively at least five days or at least
24 hours before the meeting, and in cases of extraordinary urgency - to be
proven by the person convening the Board of Directors - 6 hours before the
meeting.
Article 17
MANAGEMENT OF THE CORPORATION
(VALIDITY OF DECISIONS MADE)
In order for decisions made by the Board to be valid, the presence of
a majority of current Board Members is required.
The meetings of the Board shall be presided over by the Chairman or,
in the event of absence, by the Vice-Chairman. The decisions of the Board shall
appear in the minutes signed by the Chairman of the Board and the Secretary.
The Chairman of the meeting shall name a Secretary, who may also be
chosen from among persons who are not on the Board.
The decisions of the Board shall require an absolute majority of
votes.
The meetings of the Board of Directors may also be held in
"teleconferences or videoconferences" or another "computer imaging system," as
long as the fundamental rights of participation of every Member of the Board of
Directors and the Board of Auditors are guaranteed, and on the condition that
the Chairman and the Secretary are present in one place, that it is possible to
identify the participants, that each of them may participate at any time, and
that each participant may receive, transmit, and see documents.
Article 18
COMPENSATION FOR BOARD MEMBERS
AND MEMBERS OF THE EXECUTIVE COMMITTEE
The Members of the Board of Directors and the Members of the
Executive Committee shall receive annual compensation, established by the
Assembly for the entire term in which they remain in the position, in addition
to reimbursement of expenses incurred as part of their position.
For Board Members charged with particular duties, reference should be
made to Article 2389, section 2 of the Civil Code.
Article 19
MANAGEMENT OF THE CORPORATION
(REPRESENTATION)
The representation of the Corporation before third parties and in
legal matters is the duty of the Chairman, and in the event of absence or
unavailability, the Vice-Chairman, or the other Members of the Board of
Directors for their special duties, with these persons having the right to xxxxx
xxxxxx to proxies and attorneys.
Article 20
MANAGEMENT OF THE CORPORATION
(POWERS)
The Board of Directors shall have all the powers necessary for the
ordinary management of the Corporation and those powers which, by law or
Corporate By-Laws, are reserved for the Assembly of Shareholders.
Article 21
THE BOARD OF AUDITORS
(COMPENSATION)
The Assembly shall elect, with a majority of votes, a Board of
Auditors composed of 3 (three) Auditors and 2 (two) alternates, operating in
accordance with the law.
The Auditors shall have a term of three years and may be re-elected.
The Assembly that names the Auditors and the Chairman of the Board of
Auditors shall determine the compensation due for the entire term of office.
Article 22
OPERATION OF THE CORPORATION
THE BALANCE SHEET
The Fiscal Year of the Corporation will close on December 31 of every
year.
Article 23
PROFITS
EARMARKING OF PROFITS
The net profits appearing on the balance sheet which has been duly
approved, after the deduction of the legal reserves until this figure reaches
one fifth of the Corporate Capital, shall be distributed to the Shareholders,
unless the Assembly makes a different decision.
When the conditions of law so permit, the Corporation may distribute
dividend accounts.
Article 24
DISSOLUTION OF THE CORPORATION
In the event of the dissolution of the Corporation at any time and
for any reason, the Assembly shall determine the method of liquidation and shall
name one or more liquidators, specifying their powers.
Article 25
DIRECTION TO GENERAL STIPULATIONS
For all those matters not expressly discussed in these Corporate
By-Laws, reference should be made to the Civil Code and other laws currently in
effect.
ATTACHMENT 5.10.1.1
Capital stock of Holinvest S.p.A. and of Holy S.r.l.
The fully subscribed and paid-in Holinvest S.p.A. capital stock is
514,000,000.00 Euro, divided into 514,000,000 shares with a face value of 1 Euro
each.
The Holinvest S.p.A. extraordinary shareholder meeting held on December 12, 2002
decided to increase the capital stock from 104,000,000 Euro to a maximum of
700,000,000 Euro by issuing a maximum of 596,000,000 shares with a face value of
1 Euro each.
The fully subscribed and paid-in Holy S.r.l. capital stock is 10,000,000 Euro,
divided into partnership interests in accordance with Article 2474 of the Civil
Code.
ATTACHMENT 5.10.1.2
HOLINVEST S.P.A.
HEAD OFFICE: XXXXX XXXXXXXXXX XX. 00, XXXXXXX
CAPTIAL STOCK: 514,000,000.00 EURO
TAX IDENTIFICATION CODE AND C.C.I.A.A. COMPANIES REGISTRY NO.: 03562710172
VAT FILE NUMBER: 03562710172 R.E.A. 419057
FINANCIAL POSITION AS OF DECEMBER 31, 2002
BALANCE SHEET
ASSETS 12/31/02 09/30/02
----------------------------------------------------- -------------------- ------------------- ----------------- -------------------
10 CASH AND LIQUIDITIES 289 344
20 CREDITS WITH CREDIT INSTITUTIONS 1,234,497 25,258,043
(A) - SIGHT 1,234,497 45,258,043
(B) - OTHER CREDITS 0 0
30 CREDITS WITH FINANCIAL INSTITUTIONS 20,168,400 20,112,933
(A) - SIGHT 0 0
(B) - OTHER CREDITS 20,169,400 20,112,933
50 BONDS AND OTHER FIXED YIELD SECURITIES 1,015,228,221 417,281,659
(A) FROM PUBLIC ISSUERS 0 0
(B) FROM CREDIT INSTITUTIONS 0 0
(D) - FROM OTHER ISSUERS 1,015,228,221 417,261,659
60 SHARES, PARTNERSHIP INTERESTS AND OTHER VARIABLE
YIELD SECURITIES 684,632,135 300,482,454
90 INTANGIBLE FIXED ASSETS 8,664 7,473
WHICH INCLUDE
- INITIAL CAPITAL EXPENDITURES 8,864 7,473
100 TANGIBLE FIXED ASSETS 0 0
130 OTHER ASSETS 16,034,032 16,070,638
140 ACCRUED REVENUES AND PREPAID EXPENSES 0 0
TOTAL ASSETS 1,737,307,238 798,163,544
LIABILITIES 12/31/02 09/30/02
----------------------------------------------- -------------------- ------------------- ----------------- -------------------
10 DEBT WITH CREDIT INSTITUTIONS 297,866,898 192,789,194
(A) - SIGHT 272,041,335 186,915,501
(B) - TERM AND WITH ADVANCE NOTICE 25,825,563 25,871,603
20 DEBT WITH FINANCIAL INSTITUTIONS 400,312,503 370,194,218
(A) - SIGHT 0 55,575,489
(B) - TERM AND WITH ADVANCE NOTICE 400,312,503 314,618,735
50 OTHER LIABILITIES 5,840,744 3,821,698
70 EMPLOYEE SEVERANCE PAY 0 0
80 RISK AND CHARGE RESERVES 13,683,349 17,453,760
B) - TAX AND ASSESSMENTS RESERVES 13,683,349 13,683,349
C) - OTHER RESERVES 0
120 CAPITAL STOCK 514,000,000 104,000,000
130 SHARE PREMIUMS 488,550,000 88,550,000
140 RESERVES 22,154,674 505,610
(A) - LEGAL RESERVE 25,281 25,281
(C) - RESERVES MANDATED BY THE BYLAWS 480,330 480,330
(D) - PRIOR FISCAL YEAR PROFITS 21,649,064
170 GROSS RESULT FOR THE PERIOD 1,752,408,169 776,514,480
-15,100,930 21,649,064
TOTAL LIABILITIES 1,737,307,238 798,163,544
GUARANTEES AND OBLIGATIONS 300,000,000 300,000,000
10 GUARANTEES ISSUED 100,000,000 100,000,000
20 OBLIGATIONS
TOTAL GUARANTEES AND OBLIGATIONS 400,000,000 400,000,000
PROFIT AND LOSS STATEMENT
COSTS 12/31/02 09/30/02
------------------------------------------------------------------------- ----------------------- -------------------------
10 INTEREST CHARGES 15,320,503 24,384,516
AND SIMILAR CHARGES
20 FEES AND COMMISSIONS PAID 0 4,467,778
40 ADMINISTRATIVE OVERHEAD COSTS 81,959 401,883
50 ADJUSTMENTS IN VALUE TO TANGIBLE AND INTANGIBLE FIXED ASSETS 0 2,333
60 OTHER OPERATING EXPENSES 0 0
90 ADJUSTMENTS IN VALUE TO CREDITS
AND PARTIAL PAYMENTS AGAINST ON GUARANTEES AND OBLIGATIONS 0 3,770,411
100 ADJUSTMENTS TO THE VALUE OF FIXED ASSETS 0
110 EXTRAORDINARY CHARGES 0
130 INCOME TAXES 12,366,290
140 GROSS PROFIT FOR THE PERIOD -15,108,931 21,649,054
TOTAL COSTS 301,531 66,042,375
REVENUES 12/31/02 09/30/02
------------------------------------------------------------------------- ----------------------- -------------------------
10 EARNED INTEREST
AND SIMILAR REVENUES 195,426 5,256,802
A) ON FIXED YIELD SECURITIES 0
C) OTHER 195,426
20 DIVIDENDS AND OVER REVENUES 0 37,452,917
A) ON SHARES 0
B) TAX CREDIT 0
30 EARNED FEES AND COMMISSIONS 0 3,871,830
40 PROFITS FROM FINANCIAL TRANSACTIONS 103,274 10,821,020
70 OTHER OPERATING REVENUES 1,831 640,306
80 EXTRAORDINARY REVENUES 0
TOTAL REVENUES 301,531 66,042,375
ATTACHMENT 5.10.2.1 (a)
Olimpia S.p.A. capital stock
The fully subscribed and paid-in Olimpia S.p.A. capital stock is
1,562,596,150.00 Euro, divided into 1,562,596,150 shares with a face value of 1
Euro each.
ATTACHMENT 5.10.2.1(b)
UBM AND INTESA PORTIONS OF THE 1.8 BILLION EURO SYNDICATED LOAN
AS OF JANUARY 1, 2003
INTESABCI S.P.A. 245,000,000.00
UNICREDIT BANCA D'IMPRESA S.P.A. 111,666,666.66
UNICREDIT BANCA MOBILIARE S.P.A. 123,333,333.33
ATTACHMENT 5.10.2.4
5) Lines of credit for which waivers/amendments to contractual provisions are
required
Various lenders (IntesaBCI, UBM, Capitalia, others). 1.8 billion(euro).
Line of credit. Maturity October 2006.
Monte dei Paschi. 516.5 million(euro). Line of credit. Maturity October
2007
Interbanca. 77.5 million (euro). Line of credit. Maturity October 2007
Antonveneta. 180.8 million (euro). Line of credit. Maturity October 2007
Mediobanca. 200 million (euro). Line of credit. Maturity August 2003
Capitalia. 100 million (euro). Line of credit. Maturity February 2003
(currently being renegotiated)
Monte dei Paschi. 250 million(euro). Bond issue. Maturity November 2006
6) Renewal of short term line for 100 million(euro)with Capitalia;
7) Taking out a 75 million(euro)line of credit with Monte dei Paschi, expiration
October 2007;
8) Proposal for the redemption of the 2001-2006 PO Olimpia 1.5 bonds with
2001-2010 Olivetti convertible bonds and shares of Olivetti common stock;
ATTACHMENT 6.03 (a)
-------------------------------------- -----------------------------------
COMPANY DESIGNATED PERSON
-------------------------------------- -----------------------------------
Olivetti S.p.A. Xxxxxx Marniga
-------------------------------------- -----------------------------------
Telecom Italia S.p.A. Xxxxxxxx Xxxxxxxx
-------------------------------------- -----------------------------------
Telecom Italia Mobile S.p.A. Xxxxxxxx Xxxxxxxx
-------------------------------------- -----------------------------------
Seat - Pagine Gialle S.p.A. Xxxxxx Marniga
-------------------------------------- -----------------------------------
ATTACHMENT 6.05.(b) (i)
Exceptions to the Stand Still commitments (A)
Derivatives contracts pertaining to Olivetti shares/convertible bonds
---------------------------------------------------------------------
1) SHARE SWAP TRANSACTION WITH XX XXXXXX XXXXX BANK covering
100,000,000 shares of Olivetti common stock or, in specified situations,
a similar number of Olivetti 1.5% 2001-2010 convertible bonds:
o date adopted: February 8, 2001;
reference price: 1.4213 Euro per share of Olivetti common
stock;
o maturity date: December 2006
o total amount of securities: 100,000,000;
settlement: physical delivery of the securities or monetary
settlement of the spreads
2) CALL OPTION WITH XX XXXXXX CHASE BANK for 100,000,000 shares of
Olivetti common stock or Olivetti 1.5% 2001-2010 convertible bonds:
date adopted: November 7, 2001, amended on December 9, 2002
strike price: 1 Euro per share of Olivetti common stock; 1 Euro
(plus possible accrued interest) for each Olivetti 1.5% 2001-2010
convertible bond;
maturity date: 35 business days prior to October 5, 2007;
settlement: physical delivery of the securities or monetary
settlement of the spreads
3) CONVERTIBLE BOND ASSET SWAP with Credit Agricole Xxxxxx XX Bank
covering 200,000,000 Olivetti 1.5% 2001-2010 convertible bonds:
date adopted: November 14, 2001, amended on November 27, 2002
o strike price: 1 Euro
o maturity date: November 23, 2006
settlement: physical delivery of the securities or monetary
settlement of the spreads
ATTACHMENT 7.02 (b) (ii) a
Financial instruments issued by CDC IXIS Capital Market, indexed
(Equity Linked Notes) on the performance of 486,500,000 Olivetti shares
Notes Olivetti Shares
Number of Equity Linked 540 270,000,000
Notes CDC given in pledge
Number of Equity Linked 433 216,500,000
Notes CDC free of pledge
Total 973 486,500,000
Banks holding pledge right:
Banca Popolare Vicentia
Banca Agricola Mantovana
Banca Popolare Antoniana Veneta
Banca di Roma
Banco di Brescia
[initials]
ATTACHMENT 7.04
BYLAWS
OF THE COMPANY "HOLINVEST S.P.A."
Article 1) A corporation is hereby organized with the name
"HOLINVEST S.P.A."
Article 2) The company has its headquarters at Xxxxx Xxxxxxxxxx Xx. 00, Xxxxxxx,
but secondary offices, subsidiaries, branches, and commercial and administrative
offices may also be established elsewhere, either in Italy or abroad.
Article 3) The purpose of the company is holding equity stakes in, the financing
of, cooperation with, management of, providing consulting and other services to
juridical persons or other companies, and specifically those whose purpose is
the development, construction, and management of telecommunications systems of
any type, in general, including broadband, data and video transmission, and
domestic and international telephony, e-commerce and media operations, telephone
directory, advertising, and television operations.
The company, in relation to the aforementioned purpose, may carry out all the
financial, industrial, commercial, moveable and fixed asset transactions deemed
by the governing body to be necessary, useful, and appropriate to achieving the
company purpose. The company may also provide guarantees, suretyships and any
other security, including collateral security, to third parties.
However, the company is prohibited from engaging in the activities and
businesses expressly reserved by law for specific categories of persons and
those activities and businesses referred to by Legislative Decree 58/1998,
Statute 77/1983, Legislative Decree 95/1974, and Legislative Decree 385/1993,
and it is also prohibited from engaging in any activity with the general public
defined by law as a "financial activity."
Article 4) The company has a term ending on September 30, 2050, barring an
extension or dissolution prior to the end of its term in accordance with the
law.
Article 5) The capital stock is 514,000,000.00 (five hundred fourteen million
and 00 cents) Euro and is divided into 514,000,000 shares of one euro each.
The Shareholder Meeting, in accordance with Article 2443 of the Civil Code and
2420 Section Three of the Civil Code, may delegate to the Board of Directors the
authority to decide increases in capital stock and/or the issuance of bonds,
including convertible bonds.
Article 6) The paying in of shares shall be required by the governing body in
accordance with the time frames and procedures that it shall deem appropriate.
Shareholders that are delinquent in paying in shares shall be charged interest
at an annual rate that is equal to the official discount rate in effect for the
period, without prejudice to the provisions of Article 2344 of the Civil Code.
The payments made by shareholders into the capital account and the loans made by
shareholders to the company in proportion to their equity stakes shall not bear
interest, even in the absence of a formal decision.
Shareholders may make loans to the company only within the limits prescribed by
law, and in accordance with the criteria established by the cognizant
authorities in accordance with Article 11 of the Banking and Credit Code
(Legislative Decree No. 385 of September 1, 1993) and subsequent applicable
provisions of law.
Article 7) Preferred shares and/or shares with different rights may be issued in
the instances and in the manner prescribed by law.
Article 8)
8.1 A shareholder that intends to perform any type of acts of disposition, and
to be considered as such are the cash sale, transfer, contribution, swap,
donation or gifting, or any other transaction for a consideration which is such
as to entail the direct or indirect transfer for a consideration to third
parties or to another shareholder, of company shares, convertible bonds and/or
subscription rights, or real rights to and/or liens on the aforementioned shares
and convertible bonds, or other rights pertaining to the aforementioned shares
or convertible bonds (hereinafter referred to as the "Rights"), must first offer
to all the shareholders, under the same terms and conditions, the Rights covered
by the act of disposition, in proportion to the equity stake each shareholder
holds in the Company, without prejudice to the accretion rights of each
shareholder.
8.2 Preemptive rights may be exercised subject to the following terms and
conditions:
(i) A shareholder (hereinafter referred to as the "Offering Party") who intends
to sell Rights the shareholder owns shall be required to first make an offer of
same to the other shareholders, via registered mail with return receipt,
containing the identity of the prospective buyer, the price, and the other terms
and conditions of the sale, as well as the admonition that, if any of the
shareholders does not intend to or cannot exercise preemptive rights, the Rights
to which he is entitled automatically and proportionally accrue to those
shareholders that, on the contrary, intend to exercise their preemptive rights
and that have not expressly waived in advance the exercise of the preemptive
rights to which they are entitled.
(ii) Preemptive rights may be exercised by means of a notice sent via registered
mail with return receipt to the Offering Party and to each of the other
shareholders within the period of time, established under penalty of forfeiture
of rights, of forty-five (45) calendar days following receipt of the offers
indicated in point (i) hereinabove, with the understanding that, barring an
express waiver, said preemptive right shall be considered to be also
automatically exercised with respect to the Rights proportionally accrued by
each shareholder due to the failure of one or more entitled shareholders to
exercise their preemptive rights.
(iii) Should preemptive rights not be exercised within the above-indicated time
frames with respect to all the Rights offered, the Offering Party, in instances
where said party does not intend to accept the exercise of preemptive rights
limited to a portion of the Rights put up for sale, may transfer all the Rights
to the buyer indicated in the offer described in point (i) hereinabove, under
terms which are no more favorable than those specified in the aforementioned
offer, within ninety (90) days following the expiration of the time frame
provided by point (ii) hereinabove or, should the Offering Party accept the
exercise of preemptive rights for only a portion of the Rights offer, it may
within that same ninety (90) day period transfer to the buyer indicated in the
offer referred to in point (i) hereinabove the remaining Rights, subject to
terms and conditions that shall be agreed with same. Should said sale not occur
within the above-indicated time frame, the Offering Party may again carry out
the provisions of this paragraph.
(iv) Should the Offering Party intend to dispose of its equity stake for an
in-kind consideration, the shareholders that intend to exercise preemptive
rights must also indicate, in accordance with the procedures and time frames
indicated in the foregoing paragraphs, whether they intend to provide the
in-kind consideration or the equivalent in cash and, in the latter instance, the
purchase price shall be determined by mutual consent or in accordance with
Article 1473 of the Civil Code.
8.3 The foregoing provisions also apply to any act or transaction of any nature,
including those without a consideration, that entail the transfer in any way of
the Rights to which shareholders are entitled, and it is understood that the
provisions of Paragraph 8.1 hereinabove shall apply even in the absence of a
notice or an offer or the determination of a cash price for the purposes of such
an offer, and in those instances the purchase price must be determined by mutual
consent or in accordance with Article 1473 of the Civil Code.
8.4 As an exception to the provisions of Paragraphs 8.1 and 8.2, the
establishment on any basis of any real rights to Shares by an inter vivos act
shall be allowed only on condition that same do not in any event entail the loss
of voting rights by the party establishing such rights.
8.5 As an exception to the provisions of Paragraphs 8.1 and 8.2, the
establishment of security liens on Shares is not allowed and shall not be valid
and enforceable vis-a-vis the Company without prior approval by the other
shareholder or shareholders. Such approval may not be refused if there are
provisions for respecting the preemptive rights provided by this Article 8, in
the event of realization of the security.
8.6 As an exception to the foregoing paragraphs, the Rights are transferable, in
part or in toto, to companies that hold the entire capital stock of the
transferring shareholder or companies whose entire capital stock is held by
transferring shareholder, provided that the shareholder provides advance notice
of same to the other shareholders.
Article 9) (a) Should a shareholder that holds shares that represent an absolute
majority (50.0l%) of the capital stock (hereinafter referred to as the "Majority
Shareholder") intend to perform acts of disposition that entail the transfer to
a third party or another shareholder (hereinafter referred to as the "Buyer") of
all its Shares or a portion of same, the other shareholder or shareholders
(hereinafter referred to as the "Minority Shareholders"), in instances where
they do not intend to exercise the preemptive rights provided by Article 8
hereinabove, shall have the right to sell to that same Buyer under the same
terms and conditions: (i) a portion of their shares that is proportional to the
shares of the Majority Shareholder that have been put up for sale, in instances
where the Majority Shareholder, following the aforementioned act or acts of
disposition, shall continue to hold an absolute majority of the capital stock
(50.01%); and (ii) of in the event of the sale of all shares by the Majority
Shareholder and the transfer of shares such that the Majority Shareholder
subsequent to the sale and transfer will hold less than an absolute majority of
the capital stock (50.01%), the Minority Shareholders shall have the right and
the obligation to sell all of their shares along with those of the Majority
Shareholder.
(b) For such purpose, a Majority Shareholder that intends to sell Shares that it
owns, shall be required to give written notice of same via registered letter
with return receipt to the Minority Shareholders, informing same of the identity
of the Buyer, the number of shares put up for sale, the price, and the other
terms and conditions of the sale.
(c) Should the Minority Shareholders intend to exercise the rights provided to
them, they must so notify the Majority Shareholder, via registered letter with
return receipt, within the time frame, established under penalty of forfeiture
of rights, of fifteen (15) calendar days following receipt of the notice
indicated in point (b) hereinabove.
(d) Should the sale cover all of the shares of the Majority Shareholder or a
number of shares that is such that following the sale of the Majority
Shareholder shall hold less than a majority of the capital stock, the Minority
Shareholders shall be obligated to sell all of their shares to the Buyer under
the same terms and conditions offered to the Majority Shareholder by the Buyer.
(e) Should the Buyer not also intend to buy the shares owned by the Minority
Shareholders, the Majority Shareholder may not carry out the sale.
Article 10) A Shareholder Meeting may decide upon a reduction in the capital
stock, without prejudice to the provisions of Articles 2327 and 2412 of the
Civil Code, including by means of the allocation of specified company assets to
individual shareholders or groups of shareholders.
Article 11) The Shareholder Meeting represents all of the shareholders and its
decisions adopted in accordance with the law and with these bylaws are binding
upon all shareholders.
Shareholder meetings shall be regular or special, as provided by law.
A shareholder meeting may also be called away from the company headquarters,
provided that it is in Italy.
When particular exigencies so require, a regular shareholder meeting for the
approval of the annual reports may be called by the governing body within six
months following the end of the company fiscal year.
Article 12) Each share has the right to one vote.
Article 13) Shareholder Meeting notices shall be made by the publication in the
Official Journal of a notice containing the Agenda no less than 15 days prior to
the scheduled date of the meeting.
Said notice may schedule another date for a second meeting.
Shareholder meetings are still valid even if not called as provided hereinabove
if the entire capital stock is represented therein and all the Directors
currently in office and all the Regular Auditors attend.
Shareholder meetings, either regular or special, may also be held, in compliance
with the provisions of law, the collegial method, and the principles of good
faith and equal treatment of shareholders, at different locations, whether they
be nearby or distant,
provided that said locations are connected by audio and video links, and the
following conditions are met (which must be recorded in the pertinent minutes):
- The locations with audio and video links at which those entitled to attend the
shareholder meeting may attend shall be indicated in the shareholder meeting
notice (unless it is a shareholder meeting at which all the shareholders, Board
of Directors, and Board of Auditors are represented);
- the person keeping the minutes and the Chairman of the shareholder meeting
must be at the same location;
- it must be possible for the Chairman of the Shareholder Meeting, including
through the office of the chairman, to ascertain the identity and legal standing
of the participants, direct the conduct of the work of the shareholder meeting,
and determine and announce the results of each vote;
- the person keeping the minutes must be enabled to adequately and immediately
witness the events covered by the minutes that person is keeping;
- it must be possible for the participants to adequately participate in the
shareholder meeting, including from different locations connected by audio and
video links, by listening, taking the floor, and participating in simultaneous
votes on the Agenda items.
Article 14) To be admitted to a shareholder meeting, shareholders must deposit
their shares at the institutions designated in the shareholder meeting notice,
no later than five days prior to the scheduled date of the meeting.
Article 15) Every shareholder that has the right to participate at shareholder
meetings may have himself represented by means of a written proxy issued to
another person in accordance with Article 2372 of the Civil Code.
The chairman of the shareholder meeting is responsible to determining the right
to participate at shareholder meetings, including by proxy.
Article 16) The Chairman of the Board of Directors shall preside at shareholder
meetings, and in his absence the shareholder meeting shall elect its Chairman.
Article 17) The Chairman of the shareholder meeting shall be assisted by a
secretary, who may be a non-shareholder.
The decisions of shareholder meeting shall be recorded in minutes signed by the
Chairman and the Secretary.
In the instances provided by law as well as when the Chairman of the shareholder
meeting deems it appropriate, the minutes shall be prepared by a Notary.
Article 18) The decisions of a regular shareholder meeting pursuant to the first
meeting notice and the decisions of a special shareholder meeting shall be
validly adopted by the majorities provided by law.
A regular shareholder meeting pursuant to a second meeting notice shall be duly
convened and shall duly adopt decisions in accordance with Article 2369,
Paragraph 2 of the Civil Code.
Decisions of shareholder meetings shall be adopted by an open vote.
Article 19) Responsibility for management of the company is entrusted to a Board
made up of three to eleven members, who may be non-shareholders, as shall be
decided by a regular shareholder meeting.
Their term of office shall be three fiscal years, they shall be terminated from
office and shall be replaced in accordance with the law, and shall be
re-electable. As an exception to the provisions of Article 18, Directors shall
be appointed on the basis of lists submitted by shareholders (each shareholder
shall be allowed to submit only one list) in which the candidates (the maximum
number of which may not exceed the number of members of the Board of Directors)
must be listed with sequential numbers. Each candidate may be presented on only
one list, under penalty of ineligibility. The candidates of each list submitted
shall be assigned a quotient equal to the number of votes received by the list
divided by one, in the instance of the first candidate, by two, in the instance
of the second, by three, for the third, by four, for the fourth, and so forth.
The candidates on all the lists shall be arranged on a single list in descending
order of the quotient that each of them received. Those candidates shall be
elected who, within the limit of the number of Directors to be elected, have
received the highest quotients. In the event of a tie in quotients for the last
director to be elected, preference shall be given to the one on the list that
received the greatest number of votes and, if they have an equal number of
votes, the candidate that is the most senior in age [shall receive preference].
Article 20) Unless a shareholder meeting decides otherwise, directors shall not
be bound by the prohibition provided by Article 2390 of the Civil Code.
Article 21) Directors are entitled to reimbursement of expenses incurred by
virtue of their positions. A Regular Shareholder Meeting may also allocate
annual compensation to them, including in the form of profit-sharing, at the
rate deemed appropriate from time to time.
Article 22) The Board shall elect a Chairman from among its members, may appoint
from among its members one or more Vice Chairmen, one or more Managing Directors
and/or an Executive Committee, and/or give special assignments to individual
directors and delegate the Board's power and authority to same.
The Board of Directors shall also determine, once it has received a favorable
recommendation by the Board of Auditors, the compensation to be allocated to
Directors given special assignments and duties. The Board may also appoint a
secretary.
Article 23) The Board shall meet at the company headquarters or elsewhere
whenever the Chairman deems it necessary or when at least three of its members
make a written request to that effect.
Article 24) Board meetings shall be called by the Chairman by means of a notice
via registered mail with return receipt to be sent to every Director and regular
Auditor at least eight days prior to the meeting, and in emergencies via
telegram to be sent at least two days in advance.
Article 25) The presence of the majority of the members of the Board is required
in order for its decisions to be valid.
Decisions shall be made by a majority vote of those present. In the event of a
tie vote, the vote of the Chairman of the Board of Directors shall prevail.
Decisions and deliberations of the Board shall be recorded in minutes signed by
the Chairman and by the Secretary of the meeting.
Board meetings may be held via videoconferencing or via audio conference under
the following conditions, which must be officially noted and recorded in the
pertinent minutes:
- the Chairman and the Secretary of the meeting who shall keep and sign the
minutes are to present at the same location;
- it must be possible to identify with certainty all the parties participating;
- it must be possible for all the participants to participate in the discussion
and review, receive, or transmit documents.
Article 26) The Board is invested with the broadest powers and authority for the
routine and extraordinary management of the company, without any sort of
exception, and it has the authority to carry out all those acts and actions that
it should deem appropriate for the implementation and accomplishment of the
purposes of the company, excluding only those which the law mandatorily reserves
for the Shareholder Meeting.
Article 27) The Chairman of the Board shall be responsible for legal
representation of the company vis-a-vis third parties and in legal proceedings.
The Chairman may therefore bring and pursue legal actions in the name of the
company, either as a plaintiff or defendant in any civil, criminal, or
administrative law proceeding, at any level of jurisdiction, and therefore
before the Constitutional Court, the Court of Cassation, the Council of State,
and any other special Court, including in third party revocation or appeal
proceedings; he may act as the legal representative of the company in
out-of-court proceedings, appoint and remove attorneys and legal counsel, and
settle disputes.
The Chairman, the Vice Chairman, and Managing Directors shall also have the
authority to sign for the company and act as legal representatives of the
company for the purpose of the implementation of the decisions of the Board, as
well as pursuant to and for the purpose of exercising the powers and authority
conferred upon them, within the limits provided by law and by the bylaws.
Representation of the company shall also be the responsibility of those persons,
including those not members of the governing body, designated by the latter
pursuant to the exercise of the powers and authority attributed to same.
Article 28) The Board of Auditors shall be made up of three regular Auditors and
two alternates who shall be appointed and who shall act in accordance with the
law.
Article 29) Company fiscal years shall end on September 30 of each year.
At the end of every fiscal year, the Governing Body shall prepare the company
annual reports in accordance with the law.
Article 30) Net profits, after the deduction of an amount of no less than 5% for
the legal reserve until the limit provided by law is attained, shall be
allocated to the shareholders, unless the Shareholder Meeting, at the
recommendation of the Government Body, should decide upon special allocations to
extraordinary or optional reserves.
Article 31) Dividends shall be paid at the institutions designated by the
Governing Body, beginning on the date annually established by same.
Article 32) Dividends not collected within five years following the date they
became payable shall be forfeited in favor of the company.
Article 33) Any dispute that may arise among the shareholders and/or between the
shareholders and the company regarding the interpretation and the implementation
of these bylaws, or in regard to company relationships, must mandatorily be
referred for hearing and decision by an Arbitration Board made up of three
members, two of which shall be designated by the parties to the dispute, and the
third shall be designated by the parties' arbiters by mutual consent or, in the
event of a disagreement between same, by the Chief Judge of the Brescia Court,
at the petition of the party taking the initiative.
The Arbitration Board shall have the powers and the authority and the status of
informal arbiters, shall act as the negotiating representative of the parties,
and its unappealable decision shall represent the will and intent of the
principals, who obligate themselves to accept the decisions of the Arbitration
Board as an express and voluntary waiver of their own settlement actions. The
rules of procedure shall be established by the Arbitration Board itself in
keeping with the principle of the opportunity for full debate and discussion by
the parties, and the board's decision, which is to be rendered within four
months following the convening of the Arbitration Board, shall be communicated
to the parties and their attorneys via registered letter.
Should the decision be adopted by majority vote, the Arbitration Board shall
also record the dissenting grounds in the text of the decision.
If for any reason an arbiter should fail to carry out the assignment he has
accepted (death or resignation), the parties, in accordance with the same terms
and procedures, shall make a new appointment within ten days.
Article 34) Should the company be dissolved at any time and for any reason, a
shareholder meeting shall determine the liquidation procedures, appoint one or
more liquidators, and determine the powers and authority of same.
