Exhibit 52
SHARE SALE AND PURCHASE
TIME CONTRACT
Between:
Mediobanca S.p.A., with address at Xxxxxxxxx Xxxxxx, 0, Xxxxx, Company Capital
389,418,332.50 Euros, Enrolment number with the Milan Business Register, Tax
Code and VAT number 00714490158 (hereinafter referred to as the "Seller")
- on one hand -, and:
Olimpia S.p.A., with address at Xxxxx Xxxxx, 000, Xxxxx, Company Capital
1,860,233,510 Euros, Enrolment number with the Milan Business Register, Tax Code
and VAT number 03232190961 (hereinafter referred to as the "Purchaser")
on the other hand -
(hereinafter, the Purchaser and the Seller will be referred to jointly as the
"Parties" and each individually as the "Party").
PREMISES
(a) The Purchaser, on December 7, 2004, holds a shareholding in the
ordinary company capital of Telecom Italia S.p.A. equal to about 17%
and is interested in increasing this shareholding
(b) Having acknowledged that:
(i) on December 22, 2004, an Extraordinary Shareholders' Meeting
of the Purchaser Shareholders approved a company capital
increase by payment, offered as an option to the Shareholders,
for an amount of up to 2,000,000,000 Euros
(ii) this capital increase in mainly aimed at providing the
Purchaser with the financial means for purchasing further
ordinary shares in Telecom Italia S.p.A.
(c) The Purchaser intends to ensure itself a package of Telecom Italia
S.p.A. shares by means of the time-based purchasing at a set maximum
price and for a set overall expense, also to limit the possible
consequences deriving from any market fluctuations
(d) The Seller is willing to sell the Purchaser ordinary Telecom Italia
S.p.A. shares at the terms and conditions specified in this share sale
and purchase time contract.
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GIVEN THE ABOVE,
The Parties hereby agree the following:
Article 1 - Premises
The Premises to this share sale and purchase time contract (hereinafter referred
to as the "Contract") are an integral and substantial part of the Contract.
Article 2 - Subject of the Contract
2.1 The Seller undertakes to sell to the Purchaser, who undertakes to buy
from the Seller, at the terms and conditions specified in this
Contract, a certain quantity of ordinary Telecom Italia S.p.A. shares,
with a nominal value of 0.55 Euros each, regular use (hereinafter
referred to as the "Shares") at a purchase price (hereinafter referred
to as the "Purchase Price") in any case not above a price of 3.50 Euros
(the "Maximum Price"). The quantity of Shares subject to sale and the
Purchase Price will be established on the basis of Article 5 below.
2.2 If, between the date of this Contract and the Closing date (as defined
in Article 6.1 below), the average weighted price per ordinary Telecom
Italia S.p.A. share (the Official Price) is higher than the Maximum
Price for a period of seven consecutive days on which the Stock
Exchange is open (hereinafter, the "Significant Event"), one of the
Parties may ask the other Party to arrange a meeting, during which the
Parties will negotiate in good faith any modifications to the
conditions set in this Contract for purchasing the Shares. The meeting
will be set up by the end of the three consecutive days on which the
Stock Exchange is open after receipt of the request of the more
diligent Party but the request for a meeting may no longer be
presented, and the resulting prerogatives of the Seller will be
considered to have been waived, after five consecutive days on which
the Stock Exchange is open from the occurrence of the Significant Event
(note that this waiving has no effect in relation to any eventual
repetition of a Significant Event). If no agreement is reached within
the five consecutive days on which the Stock Exchange is open after the
date of the meeting (the "Consultation Term"), the Seller will promptly
inform the Purchaser if, provided the circumstances permit this, it
intends to make use of the right specified in Article 2.3 below. If
not, Article 2.4 will apply.
2.3 If the suspension condition specified in Article 4 below has not yet
occurred on the date of the Consultation Term, the Seller will have the
right to:
(i) withdraw, at its own incontestable judgment, from this
Contract; in this case, this Contract, from the date of
receipt of the communication specified in Article 2.2 above,
will cease to have any validity between the Parties, who can
therefore make no claims in relation to each other in terms of
compensation, damages or repayment for expenses incurred, or
(ii) wait, at its own risk, for the occurrence of the suspension
condition specified in Article 4 below and sell to the
Purchaser, at the Purchase Price, the quantity of Shares
which, on that date, are owned by the Seller in accordance
with this
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Contract and whose extent will be promptly communicated to the
Purchaser; the transfer of the Shares to the Purchaser will
take place by the seventh consecutive day on which the Stock
Exchange is open after the occurrence of the suspension
condition specified in Article 4 below.
2.4 If the suspension condition specified in Article 4 below has occurred
on the date of the Consultation Term, the Seller will sell to the
Purchaser, and the Purchaser will buy, at the Purchase Price, the
quantity of Shares which, on that date, are owned by the Seller in
accordance with this Contract and whose extent will be promptly
communicated to the Purchaser. The transfer of the Shares to the
Purchaser will take place by the seventh consecutive day on which the
Stock Exchange is open after the date of the Consultation Term.
Article 3 - Declarations and guarantees
3.1 The Seller hereby declares and guarantees in favor of the Purchaser on
the date of this Contract and on the Closing date (as defined below)
that:
(i) the signing by the Seller of this Contract has been duly
authorized by the competent organs of the Seller and this
authorization is valid and effective; this signing or the
implementation of the obligations of the Seller do not require
any authorizations from judicial or administrative authorities
which have not been obtained and which are not still valid and
effective;
(ii) the Seller will have, on the date immediately before the
Closing date, the ownership and the full and free use of the
Shares, free of any pledges, uses or other constraints or
obligations in favor of the Seller or third parties;
(iii) this Contract and the obligations which this Contract creates
are valid and binding and, subject to the specification in
Article 4, effective for the Seller, are susceptible to
execution, also in specific form, in compliance with the
regulations specified therein;
(iv) this Contract is not a breach by the Seller of Article 180 of
Italian Legal Decree of February 24, 1998, no. 58.
3.2 The Purchaser hereby declares and guarantees in favor of the Seller on
the date of this Contract and on the Closing date (as defined below)
that:
(i) the signing by the Purchaser of this Contract will be, by the
Closing date, duly authorized by the competent organs of the
Purchaser and this authorization will be valid and effective
on the Closing date; this signing or the implementation of the
obligations of the Purchaser will not require, on the Closing
date, any authorizations from judicial or administrative
authorities which have not been obtained and which will not
then be valid and effective;
(ii) this Contract and the obligations which this Contract creates
are valid and binding and, subject to the specification in
Article 4, effective for the Purchaser, are susceptible to
execution, also in specific form, in compliance with the
regulations specified therein;
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(iii) this Contract is not a breach by the Purchaser of Article 180
of Italian Legal Decree of February 24, 1998, no. 58.
Article 4 - Suspension condition
4.1 The undertakings of the Seller to sell and of the Purchaser to purchase
the Shares, as specified by this Contract, are conditioned, subject to
suspension, in terms of the efficacy of the Contract until the payment
of the capital increase decided by the Extraordinary Shareholders'
Meeting of the Purchaser Shareholders on December 22, 2004, for at
least 410,000,000 Euros. This suspension condition is set up in the
exclusive interests of the Purchaser who, therefore, may waive this
right. The Parties hereby expressly agree that the undertakings of the
Seller and of the Purchaser as specified in Article 2 above are
considered to be effective on the date of the occurrence of this
suspension condition, without retroactive effect, notwithstanding the
regulation specified in Article 7.2 below.
4.2 The Purchaser undertakes to communicate promptly to the Seller about
implemented subscribing of the capital increase specified in Premise
(b) and the occurrence of this suspension condition.
4.3 If this suspension condition does not occur by February 28, 2005, and
notwithstanding the right to waive this suspension condition for the
Purchaser, this Contract will be considered to be terminated
definitively and without any effect between the Parties,
notwithstanding the regulations specified in Article 7.2 below.
4.4 As an exception to the regulations specified in Article 4.3 above, if
this suspension condition does not occur by the term of February 28,
2005, the Purchaser may indicate, in writing to the Seller, a third
party, who accepts, in writing with a letter sent to the Parties,
taking over as the buyer of the Shares. In this case, the obligations
of the Purchaser with reference to purchasing the Shares are considered
to be transferred to this third party.
Article 5 - Quantity of Shares and Purchase Price
5.1 The Purchase Price will be established in good faith by the Seller, on
the basis of the criteria established in Article 5.2 below. The
Purchase Price in any case may not exceed the Maximum Price. The
quantity of shares will be established by dividing the overall amount
of 410,000,000 Euros made available by the Purchaser for purchasing the
Shares by the Purchase Price as established by the Seller, with
rounding off to the lower full share figure. Therefore, if the Purchase
Price and the Maximum Price are the same, the quantity of Shares
transferred will be 117,000,000 Shares; this notwithstanding the
hypotheses specified in Articles 2.2, 2.3 and 2.4 above.
5.2 In establishing the Purchase Price, the Seller will refer to the price
conditions identified overall by the Seller in the market as well as
any financial expenses sustained during the course of the operations
carried out to obtain the Shares within the Closing date (as defined
below).
5.3 The Purchase Price, established in accordance with Article 5.2 above,
as well as the quantity of Shares to be transferred will be
communicated by the Seller to the Purchaser by the end of the third
working day prior to the Closing date, notwithstanding the regulations
specified in Articles
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2.3(ii) and 2.4. The product of the Purchase Price and the quantity of
Shares to be transferred is hereinafter referred to as the "Sale
value".
5.4 The Purchaser will have the right to request from the Seller, at any
time, documented information about the market price conditions and the
other elements specified in paragraph 5.2 above and, when it receives
this request, the Seller will be obliged to promptly provide the
Purchaser with all the information reasonably requested.
Article 6 - Closing
6.1 Unless otherwise agreed between the parties and subject to the
occurrence of the suspension condition specified in Article 4 above (or
to the waiving of this right by the Purchaser), the date for the
execution of this Contract (hereinafter referred to as the "Closing")
will be set by the Purchaser and communicated to the Seller with prior
notice of at least seven days on which the Stock Exchange is open. This
date will in any case be between January 31, 2005 and May 30, 2005.
6.2 On the Closing date, the ownership of the Shares will be transferred to
the Purchaser by the Seller on full payment of the Sale value. The
payment of the Sale value by the Purchaser will be made in Euros, with
the value date being the Closing date, in the form of a bank draft to
the current bank account which will be communicated by the Seller to
the Purchaser at least two working days before the Closing date.
6.3 On the Closing date, the ownership of the Shares sold will be
transferred by the Seller through Monte Titoli S.p.A. to the deposit
account held by the Purchaser at Unicredit Banca di Impresa S.p.A.,
Milan headquarters, the details of which will be communicated by the
Purchaser to the Seller at least two working days before the Closing
date.
6.4 At the time of the transfer of the Shares and the payment of the Sale
value, the Parties will sign a special declaration detailing the
reciprocal receipt of items.
Article 7 - Expenses and duties
7.1 Notwithstanding the regulations specified in Article 5.2 above, each
Party will be responsible for the expenses sustained for implementing
and signing this Contract and for complying with the obligations
specified therein. The expenses for the Stock Exchange transfer tax
(fixed stamp duty) are the responsibility of the Purchaser.
Notwithstanding the regulations specified in Article 7.2 below, no
other repayment will be due from the Purchaser to the Seller in
relation to this Contract.
7.2 It is hereby agreed that in the event of the non-occurrence of the
suspension condition specified in Article 4 above within the term
established therein, and the non-waiving of this right by the Purchaser
or non-designation of a third party willing to take over the purchase
of the Shares as per Article 4.4 above, the Purchaser will recognize
the Seller, as compensation and covering all claims of the Seller, a
once-off all-inclusive amount of 15,000,000 Euros. This compensation
will also be due if the third party indicated by the Purchaser does not
fulfill the obligations assumed with the letter of acceptance as
specified in Article 4.4 above.
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Article 8 - Applicable Law and disputes
8.1 This Contract is regulated by Italian Law.
8.2 The Parties refer irrevocably and completely to the exclusive domain of
Milan Law Court for any dispute deriving from this Contract or in any
way relating to the implementation or interpretation of this Contract.
Article 9 - Communications
Any communication required or permitted by the regulations specified in
this Contract must be carried out, unless otherwise indicated in this Contract
itself, in writing and will be considered to be effectively and validly carried
out on receipt of these written communications, if sent by letter or telegram,
or at the time of recognition of receipt in the form of a special declaration
(also by fax), provided the communications are addressed as follows:
If to the Seller: If to the Purchaser
Mediobanca S.p.A. Olimpia S.p.A.
Piazzetta Xxxxxx, 1 Xxxxx Xxxxx, 000
00000 Xxxxx 20126 Milan
Tel: 00 0000000 Tel: 00 00000000
Fax: 00 0000000 Fax: 00 00000000
Attention: Dr. Francesco Xxxxxxx Xxxxx Attention: Ing. Xxxxxxx Xxxxx
Article 10 - Negotiation between the Parties
The Parties hereby acknowledge that they have negotiated this Contract and the
terms and conditions contained therein. Therefore, there is no need for specific
approval of clauses in this Contract.
Milan, December 24, 2004
Olimpia S.p.A. Mediobanca S.p.A.
[signature] [signature]
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