This amendment (the “Amendment Agreement”) is entered into on 11th January 2010 BY AND BETWEEN
Exhibit
23
This
amendment (the “Amendment Agreement”) is
entered into on
11th
January 2010
BY
AND BETWEEN
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TELEFONICA,
S.A., a Spanish company with registered office at 28013, Xxxxxx, Xxxx Xxx
x. 00, Xxxxx (“TE”);
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ASSICURAZIONI
GENERALI S.p.A., an Italian company with registered office at Xxxxxx Xxxx
xxxxx Xxxxxxx x.0, Xxxxxxx, Xxxxx;
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ALLEANZA
TORO S.p.A., an Italian company with registered office at Torino, via
Mazzini n. 53;
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INA
ASSITALIA S.p.A., an Italian company with registered office at Roma, Corso
d’Italia n. 33;
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GENERALI
LEBENSVERSICHERUNG A.G., a German company with registered office at
Hamburg (Germany), an der Besenbinderhof n.
43;
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GENERALI
VIE S.A., a French company with registered office at Paris, Bld Xxxxxxxx
11;
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ASSICURAZIONI
GENERALI S.p.A. (hereinafter “Generali”), for its own account and in
the name and on behalf of the following Generali’s subsidiaries GENERALI
VIE S.A., ALLEANZA TORO S.p.A., INA ASSITALIA S.p.A., GENERALI
LEBENSVERSICHERUNG A.G., (hereinafter the “Generali Subsidiaries” and
together with Generali collectively
“AG”);
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INTESA
SANPAOLO S.p.A., an Italian company with registered office at Xxxxxx Xxx
Xxxxx x. 000, Xxxxxx, Xxxxx (“IS”);
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MEDIOBANCA
S.p.A., an Italian company with registered office at Xxxxxxxxx Xxxxxx x.
0, Xxxxxx, Xxxxx (“MB”);
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(collectively
the “Parties” and each, indiviadually, a
“Party”);
WHEREAS
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A.
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On
28 April 2007 the Parties and Sintonia S.A., a company incorporated under
the laws of Luxembourg, with registered office at 0, Xxxxx x’Xxxxx, X-0000
Xxxxxxxxxx, commercial register n. B77504 (“Sintonia”) entered into a shareholders
agreement, as subsequently amended and supplemented with a first deed of
amendment dated 25 October 2007 and with a second deed of amendment dated
19 November 2007 (the “Shareholders
Agreement”);
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B.
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on
28 October 2009, Sintonia indicated that it did not wish to renew the
Shareholders Agreement and exercised the exit right set out
thereunder;
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C.
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on
the same 28 October 2009, the Parties also agreed (i) to renew the
Shareholders Agreement for an additional period of three years (i.e. as of
28 April 2010 until 27 April 2013) and (ii) to amend and renew certain
provisions of the Shareholders Agreement (such amended and renewed
Shareholders Agreement, the “New
Shareholders Agreement”);
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D.
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on
26 November 2009 the board of directors and the shareholders meeting of
Telco S.p.A. (“Telco”) approved the
transactions to allow the exit of Sintonia and adopted all the necessary
resolutions required in connection
therewith;
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E.
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the
exit of Sintonia has been completed on 22 December 2009 through the
execution of a sale and purchase agreement (the “Sale and Purchase Agrement”) whereby, in
the same context and as one and single transaction: (i) Sintonia has sold
to Telco all the shares held by Sintonia in Telco, representing
approximately 8.39% of the share capital of the latter, and (ii) Telco has
sold to Sintonia, no. 275,115,716 ordinary shares of Telecom Italia,
representing approximately 2.06% of the ordinary share capital of Telecom
Italia. On the basis of the Sale and Purchase Agreement, upon completion
of the exit of Sintonia, Telco has received on 22 December, 2009 from
Sintonia a net cash amount equal to Euro
311,793,414,25;
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F.
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following
completion of the exit of Sintonia, (x) Telco holds 3,003,586,907 ordinary
shares of Telecom Italia, equivalent to approximately 22.45% of the
ordinary share capital of Telecom Italia and (y) the shareholding of Telco is the
following: (i) AG (i.e. the Generali and the Generali Subsidiaries) holds
no. 543,364,315 Class A shares of Telco representing approximately 30.58%
of Telco’s share capital, (ii) IS holds no. 206,464,495 Class A shares of
Telco representing approximately 11.62% of Telco’s share capital, (iii) MB
holds no. 206,464,495 Class A shares of Telco representing approximately
11.62% of Telco’s share capital, and (iv) TE holds no. 820,569,068 Class B
shares of Telco representing approximately 46.18 % of Telco’s share
capital (each of such shareholding, the “New Shareholding in
Telco”);
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G.
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on
22 December 2009, Telco and the Parties also executed a framework
agreement (the “Framework
Agreement”), whereby the Parties and Telco, among other things,
agreed the actions and transactions to be carried out in order to allow
Telco (aa) to comply with its obligations under the existing credit
facilities and (bb) to refinance its financial indebtedness to be repaid
within January 2010;
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H.
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it
is envisaged that one of the transactions that Telco will carry out in
order to refinance its financial indebtedness will be the execution with
primary financial institutions (the “Senior Lenders”), including MB and IS,
acting in their capacity as lending banks, of a new facility for an amount
not exceeding Euro 1,400,000.000 (the “New
Refinancing Facility”);
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I.
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it
is expected that under the New Refinancing Facility a certain number of
the Telecom Italia shares held by Telco will be pledged in favor of the
Senior Lenders (the “Pledged
Shares”).
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Now,
therefore, in consideration of the foregoing premises the Parties
hereby
2
AGREE
AND COVENANT
as
follows:
1. Unless
differently provided herein, terms and expressions used with initials in capital
letters in this Amendment Agreement shall have the same meaning attributed to
them in the New Shareholders Agreement.
2. Consistently
with the principles and spirit of the Shareholders’ Agreement and of the
Framework Agreement, executed in order to allow Telco to comply with its
obligations under the existing credit facilities and to refinance its financial
indebtedness, each of the Parties agrees that, in proportion to its New
Shareholding in Telco, it will endeavor to support Telco and, in particular, to
make available to Telco the funds necessary to avoid or cure any possible
default under the New Refinancing Facility (the “Cash Injection”). The Parties agree to start a
negotiation in this respect with sufficient time in advance. Such
Cash Injection shall be made (aa) through
a shareholders loan or any other appropriate financial instruments agreed among
the Parties, and in any case (bb)
within the timeframe provided for under the New Refinancing Facility to prevent
the foreclosure and subsequent appropriation or sale by the Senior Lenders of
the Pledged Shares (the “Foreclosure of the
Pledge”), provided that (cc) each
Party shall be allowed to propose to finance its Cash Injection through an issue
of bonds by Telco with mechanics consistent with those agreed under the
Framework Agreement and, to the extent available within the timeframe above
under (bb) above, through a fully funded bridge loan, and that in such case all
Parties (acting exclusively in their capacity as Telco’s shareholders) shall
endeavor to cooperate to allow such financing. The Parties acknowledge and agree
that their agreement to endeavor to support Telco’s financial indebtedness
pursuant to the terms and conditions set out in this Amendment Agreement (i) is only among the Parties acting
exclusively in their capacity as Telco’s shareholders, (ii) is not in favor of Telco nor in favor of
any third interested party (including but not limited to the lenders of Telco)
and (iii) in case of breach, is only
sanctioned in accordance with the provisions set out in the following articles 3
and 4, which constitute the sole and exclusive remedy for such a breach, also
pursuant to Article 1382, first paragraph of the Italian Civil
Code.
3. In
order to implement the principles under article 2 above, the Parties acknowledge
and agree that under the New Refinancing Facility there may be from time to time
the need for additional cash (the “Cash
Call”). In case of a Cash Call, or in case in which the Senior
Lenders may notify to Telco and /or the Parties the intention to begin the
Foreclosure of the Pledge, each of the Parties shall endeavor to support Telco
through a Cash Injection in proportion to its New Shareholding in Telco and in
accordance with the provisions set forth in Article 2 above. Should
one or more Party/ies refuse(s) to participate to the Cash Injection (the “Dissenting Parties”; for the avoidance of doubt
the Dissenting Party/ies will be the Party/ies that refuse(s) to make available
to Telco in proportion to its/their new Shareholding in Telco – through a
modality complying with the terms set forth above in (aa), (bb), or (cc) of
Article 2 above – the funds necessary to Telco to avoid or cure the default
under the new Refinancing Facility within the timeframe necessary to avoid the
Foreclosure of the Pledge), the other Party/ies (the “Supporting Parties”) shall be entitled, pro
rata among themselves
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based on
their respective New Shareholding in Telco, to make good and cover the portion
of the Cash Injection pertaining to the Dissenting Parties (the “Additional Funding Portion”), provided however
that, in any such case, if the Dissenting Party is a class A shareholder of
Telco, the right (but not the obligation) to inject the Additional Funding
Portion will only be attributed to, and exercisable by other Class A
Shareholders who are at the same time Supporting Parties.
4. The
Parties further acknowledge and agree that in the event the Cash Injection is
for whatever reason not fully covered and, as a result of this, the Senior
Lenders activate the Foreclosure of the Pledge, then the Supporting Parties
shall be entitled to acquire the Pledged Shares from the Senior Lenders at the
terms and conditions set out in the option agreement attached hereto as Annex A
(the “Option Agreement”). In
this connection, the Parties further agree among them that:
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a)
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the
right to acquire the Pledged Shares under the Option Agreement (the “Call Right”) will only be exercisable by
the Supporting Parties, and not by the Dissenting
Parties;
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b)
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each
of the Supporting Parties will have the Call Right on a pro-quota of the
Pledged Shares proportional to its percentage of the share capital of
Telco at the time when the Call Right will be exercised (the “First Option Pro-Quota of the Pledged
Shares”);
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c)
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the
Supporting Party/ies that is/are Class A Shareholder/s will also have the
Call Right on the portion of Pledged Shares (in each case the “Non Called Class A First Shares”)
corresponding to (i) the Dissenting
Party/ies that is/are Class A Shareholder/s and (ii) the Supporting Party/ies that is/are
Class A Shareholders which do not validly deliver their First Exercise
Notice (as defined below) within the First Exercise Deadline (as defined
below):
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d)
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the
Supporting Party/ies that is/are Class B Shareholder/s will also have the
Call Right on the portion of Pledged Shares (in each case the “Non Called Class B First Shares”)
corresponding to (i) the Dissenting Party/ies that is/are Class B
Shareholder/s and (ii) the Supporting Party/ies that is/are Class B
Shareholders which do not validly deliver their First Exercise Notice (as
defined below) within the First Exercise Deadline (as defined
below);
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e)
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each
of the Supporting Parties that intends to acquire Pledged Shares shall
deliver to the other Supporting Parties a written notice (the "First Exercise Notice ")
no later than 14.00hrs CET on 2 Business Days (the "First Exercise
Deadline") after receipt of the Calculation Notice (as defined in
Clause 1.2.1 of the Option Agreement) stating its unconditional and
irrevocable intention to purchase from the Senior Lenders all, but not
part, of its First Option Pro-Quota of the Pledged Shares. Each of the
Supporting Parties that are Class A Shareholders and that have validly
delivered the First Exercise Notice shall be referred to as the "First Class A Calling
Shareholders"; each of the Supporting Parties that are Class B
Shareholders and that have validly delivered the First Exercise Notice
shall be referred to as the "First Class B Calling
Shareholders" (together the "First Calling
Shareholders");
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f)
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each
of the First Class A Calling Shareholders may deliver to the other First
Calling Shareholders a further written notice (the "Second Class A Exercise
Notice") by no later than 14.00hrs CET on 3 Business Days after
receipt of the Calculation Notice (the "Second Class A Exercise
Deadline") stating its unconditional and irrevocable intention (or
the unconditional and irrevocable intention of an Italian Qualified
Investor’s, as defined in the Shareholders Agreement) to acquire from the
Senior Lenders a maximum number of the Non Called Class A First Shares
(the "Called Second Shares"). Each of the First Class A Calling
Shareholders who have validly delivered the Second Class A Exercise Notice
shall be referred to as the "Second Class A Calling
Shareholders";
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g)
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if
the aggregate maximum number of Called Second Shares indicated in the
relevant Second Class A Exercise Notice(s) is equal to the Non Called
Class A First Shares, then such shares shall be allocated among each
Second Class A Calling Shareholders as per the Called Second Shares
indicated in their corresponding Second Class A Exercise
Notice(s);
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h)
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if
the aggregate maximum number of Called Second Shares indicated in the
relevant Second Class A Exercise Notice(s) is more than the Non Called
Class A First Shares, then such shares shall be allocated among each
Second Class A Calling Shareholders on a proportional basis based on the
Called Second Shares indicated in their corresponding Second Class A
Exercise Notice(s);
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i)
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if
the aggregate maximum number of Called Second Shares indicated in the
relevant Second Class A Exercise Notice(s) is less than the Non Called
Class A First Shares, then such shares shall be allocated among each
Second Class A Calling Shareholders (or Italian Qualified Investors, as
defined in Article 8.2 of the Shareholders Agreement, if any) as per the
Called Second Shares indicated in their corresponding Second Class A
Exercise Notice(s), and each of the First Class B Calling Shareholders may
deliver to the First Class A Calling Shareholders a written notice (the
“Second Class B Exercise
Notice”)
by no later than 14:00hrs CET on 1 Business Day after expiry of the term
for the Second Class A Exercise Notice (the "Second Class B Exercise
Deadline") stating its unconditional and irrevocable intention to
acquire from the Senior Lenders a number of Pledged Shares equal to the
difference between the total number of Pledged Shares and the sum of the
shares indicated in the First Exercise Notice and the Second Class A
Exercise Notice, if applicable:
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j)
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the
provisions referred to in points from in points f) through i) above shall
apply, mutatis
mutandis, to the Non Called Class B First Shares (with the
exception of the possibility to identify and nominate, for the purposes
herein, Italian Qualified Investors)
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k)
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each
of the First Calling Shareholders shall be obliged to deliver to the
Senior Lenders, with a copy to Telco and all other First Calling
Shareholders, the Exercise Notice within the Exercise Deadline (as both
defined in the Option Agreement), including the number of Pledged Shares
that it unconditionally
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and
irrevocably offers to purchase from the Senior Lenders (or retain pursuant
to clause 1.2.7 of the Option Agreement), which must be calculated in
compliance with above provisions (hereinafter the "Allocated Pledged
Shares" of the relevant First Calling
Shareholder).
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5. Notwithstanding the provisions of Article 12 of the New Shareholders' Agreement, any notice and communication among Parties under this Amendment shall be made by email and fax at the following fax numbers and email addresses:
To Assicurazioni
Generali:
Xxxxxx
Xxxx xxxxx Xxxxxxx x. 0
00000
Xxxxxxx, Xxxxx
Fax: x00
000 000000
To the
attention of: Xx. Xxxxxxxx Xxxxxxxxxxxx and Xx. Xxxxxxxx Pessi
E-mail:
xxxxxxxx_xxxxxxxxxxxx@xxxxxxxx.xxx
and
xxxxxxxx_xxxxx@xxxxxxxx.xxx
To
Intesa:
Intesa
Sanpaolo S.p.A.
Xxxxxx
Xxxxx x. 0
00000
Xxxxxx, Xxxxx
Fax: x00
00 000 00000
To the
attention of: Xx. Xxxxxxx Xxxxxxxx and Xx. Xxxxxx Xxxxxx
E-mail:
xxxxxxx.xxxxxxxx@xxxxxxxxxxxxxx.xxx and
xxxxxx.xxxxxx@xxxxxxxxxxxxxx.xxx
To
Mediobanca:
Mediobanca
- Banca di Credito Finanziario S.p.A.
Xxxxxxxxx
Xxxxxx x. 0
00000
Xxxxxx, Xxxxx
Fax: x00
00 0000 000
To the
attention of: Xx. Xxxxxxxx Rebecchini and Xx. Xxxxxxxxx Xxxxxx
E-mail:
mailto:xxxxxxxx.xxxxxxxxxx@xxxxxxxxxx.xx
and
xxxxxxxxx.xxxxxx@xxxxxxxxxx.xx
To
TeIefonica:
Telefonica
S.A.
C/Xxxxx
de la Comunicacion, s/n, Xxxxxxxx X, Xxxxxxxx Xxxxxxx, Xxxxxx 0x
00000
Xxxxxx, Xxxxx
Fax: x00
00 000 0000 and x00 00 000 0000
To the
attention of: Group General Counsel (Xxxxxx Xxxxxxx de Lerín) and
Xxxxx
Xxx
Xxxxxxx
E-mail:
xxxxxxxxxx.xxxxxxx@xxxxxxxxxx.xx and
xxxxxxxx@xxxxxxxxxx.xx
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6. The
Parties agree that the New Shareholders Agreement is integrated and - to the
extent necessary - amended by this Amendment Agreement. In case of
conflict between the provisions of this Amendment Agreement and the provisions
of the New Shareholders Agreement, the provisions of this Amendment Agreement
shall prevail. Subject to the above, all the provisions of the New
Shareholders Agreement remain in full force and effect.
7. This
Amendment Agreement - as the Shareholders Agreement and the New Shareholders
Agreement - shall be governed by, and interpreted in accordance with, the laws
of the Republic of Italy. Any disputes arising out of or in
connection with this Amendment Agreement shall be submitted by the Parties to
arbitration, The venue of the arbitration shall be Milan. The
arbitration shall be conducted in the English language and in accordance with
ICC Rules.
| TELEFÓNICA S.A. | |
| /s/ Authorized Signatory | |
| ASSICURAZIONI GENERAL1 S.p.A. (far its own account and in the name and on behalf of the Generali Subsidiaries) | |
| /s/ Authorized Signatory | |
| INTESA SANPAOLO S.p.A. | |
| /s/ Authorized Signatory | |
| MEDIOBANCA S.P.A. | |
| /s/ Authorized Signatory | |
7
