Exhibit 99.97
CALL OPTION AGREEMENT
This Call Option Agreement is made and entered into as of 6 November, 2007,
between:
(1) TELEFONICA S.A. a company organized and existing under the laws of Spain,
with registered office at 28013, Madrid, Gran Xxx xx. 00, Xxxxx
(hereinafter, "TE");
and
(2) TELCO S.P.A., a company organized and existing under the laws of Italy,
with registered office at Galleria del Corso n. 2 Milan, (hereinafter,
"TELCO" and jointly with TE the "PARTIES").
WHEREAS
(a) On April 28, 2007, TE, Assicurazioni Generali S.p.A. (hereinafter, "AG"),
Sintonia, S.A. (hereinafter, "SI"), Intesa SanPaolo S.p.A. (hereinafter,
"IS") and Mediobanca S.p.A. (hereinafter, "MB") entered into a
co-investment agreement (hereinafter, the "CO-INVESTMENT AGREEMENT") to
establish INTER ALIA the terms and conditions for (i) their participation
into Centotrenta 4/6 S.r.l., an Italian company with registered office at
Xxxxxxxx xxx Xxxxx 0, Xxxxx, Xxxxx, fiscal code n. 05277610969,
subsequently transformed (and renamed) into Telco, (ii) the presentation by
the parties to the Co-investment Agreement, also on behalf of Telco, of an
offer (hereinafter, the "OFFER") for the acquisition by Telco from
Pirelli&Co. S.p.A. ("PC"), Sintonia S.p.A. and SI (together, "SINTONIA") of
100% of the share capital of Olimpia S.p.A. (hereinafter "O"), which in
turn holds 17.99% of the ordinary share capital of Telecom Italia S.p.A.
(hereinafter "TI"), and (iii) the contribution in kind by MB and AG of
their respective holdings in TI comprising a total of 5.6% of the ordinary
share capital of TI;
(b) On April 28, 2007, TE, AG, SI, IS and MB, entered into a shareholders'
agreement to establish (i) the corporate governance of Telco, (ii) the
corporate governance of O, (iii) the appointment of directors in TI and
(iv) the transfer of the Telco's shares and the transfer of the O and TI
shares directly or indirectly owned by Telco (the "SHAREHOLDERS'
AGREEMENT");
(c) On May 4, 2007, TE, AG, SI, IS and MB, on one side, PC and Sintonia on the
other side, entered into a stock purchase agreement (hereinafter, the
"SPA") for the acquisition through Telco of 100% of the share capital of O,
which in turn holds a stake of 17.99% of the ordinary share capital of TI
(hereinafter, the "ACQUISITION");
(d) Pursuant to Clause 8.5(a) of the Shareholders' Agreement, in the event that
a decision to dispose, directly or indirectly in any form or manner -
including through measures with equivalent effect, such as mergers or
de-mergers of Telco or O - or encumber TI shares or O shares or any rights
attached thereto (including but not limited to voting rights) is taken by
the Board of Directors of Telco with a simple majority resolution as
provided for by Clause 1.2(bb) of the Shareholders' Agreement and TE is a
Dissenting Shareholder, then TE shall have the option, at its exclusive
discretion, to buy from Telco or O (as the case may be) the O or TI shares
at the same price and conditions offered by the third party
offering to acquire such TI or O shares (the "CALL OPTION"), in which case
the parties to the Shareholders Agreement shall be bound to cause Telco or
O (as the case may be) to sell the relevant O or TI shares to TE pursuant
to the Call Option;
(e) Clause 8.5(a) of the Shareholders' Agreement also provides that, as soon as
possible following closing of the Acquisition, the parties to the
Shareholders' Agreement shall cause Telco and O to enter into a call option
agreement with TE under terms and conditions referred to in Clause 8.5(a)
of the Shareholders Agreement;
(f) On 25 October, 2007 closing of the Acquisition has taken place and,
therefore, the Parties now intend to implement the execution of this call
option agreement (the "CALL OPTION AGREEMENT") in compliance with the
relevant provisions of the Shareholders Agreement.
NOW, THEREFORE the Parties hereto agree as follows:
ARTICLE I
1. DEFINITIONS
1.1 Unless differently stated herein, terms in capital letters used in this
Call Option Agreement shall have the same meaning as defined in the
Co-Investment Agreement, the Shareholders' Agreement and the SPA, as the
case may be.
1.2 For the purposes of this Call Option Agreement, the term "BUSINESS DAY"
means any day other than Saturdays or Sundays or any other day which is a
legal holiday in Italy or in Spain or a day in which banking institutions
in Milan or in Madrid are authorized to be closed.
ARTICLE II
2. CALL OPTION ON OLIMPIA SHARES
2.1 GRANT OF CALL OPTION. Subject to the terms and conditions of this Call
Option Agreement, Telco hereby irrevocably and unconditionally grants to TE
the right to purchase from Telco the Olimpia Shares (as defined below) and,
provided that the Call Option is exercised in accordance with the terms and
conditions of this Call Option Agreement, Telco irrevocably and
unconditionally agrees to transfer the Olimpia Shares for the Olimpia
Purchase Price (as defined below) pursuant to the terms set forth in this
Article II.
2.2 CONSIDERATION. The Call Option is hereby granted to TE by Telco in
consideration of the investment commitment in Telco undertaken by TE
pursuant to the Co-Investment Agreement and taking into account the overall
balance of the economic interests existing between all parties to the
Co-Investment Agreement and the Shareholders Agreement. Accordingly, TE and
Telco hereby acknowledge and agree that the Call Option on Olimpia Shares
shall be deemed to be onerous and not gratuitous.
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2.3 OBJECT OF THE CALL OPTION. Object of the Call Option shall be the number of
O shares (or the relevant rights attaching thereto) which the Board of
Directors of Telco will have resolved to dispose or encumber, as specified
in the relevant Telco's Board of Directors resolution adopted pursuant to
paragraph 1.2(bb) of the Shareholders' Agreement, (the "OLIMPIA SHARES" and
such relevant Telco's Board of Directors resolution, the "RELEVANT TELCO'S
BOARD OF DIRECTORS RESOLUTION").
2.4 PURCHASE PRICE. Subject to the exercise of the Call Option, the purchase
price to be paid upon Olimpia Closing (as defined below) by TE to Telco as
consideration for the Olimpia Shares in the event of any transaction which
involves a cash purchase price shall be equal to the price indicated in the
Relevant Telco's Board of Directors Resolution (the "OLIMPIA PURCHASE
PRICE").
In the event of any transaction which involves a non-cash consideration,
Telco Directors, on or before the Telco's Board of Directors called
pursuant to paragraph 1.1(c) of the Shareholder's Agreement, shall
determine and unanimously agree in writing on the Olimpia Purchase Price
(to be determined as equivalent cash value of such transaction). In the
event Telco Directors do not reach an agreement on the Olimpia Purchase
Price on or before the Telco's Board of Directors called to resolve upon
the transaction pursuant to paragraph 1.1(c) of the Shareholders' Agreement
(the "FIRST TELCO'S BOARD OF DIRECTORS"), the Olimpia Purchase Price shall
be determined - based on valuation principles generally accepted for
transactions similar for size and nature - pursuant to Article 1349, first
paragraph, of the Italian Civil Code, by a first tier International
Investment Bank (the "ARBITRATOR") to be appointed jointly by TE and Telco'
shareholders or, lacking an agreement within 3 days from the First Telco's
Board of Directors, by the Chairman of the Tribunal of Milan (in which
case, following the referred term of 3 days, any of the parties, any of the
Telco' shareholders or TE, will be entitled to request such appointment
from the Chairman of the Tribunal of Milan). The Parties agree that the
Arbitrator shall determine the Olimpia Purchase Price within 5 Business
Days from its appointment, based on the criteria indicated above.
The Parties agree that the appointment of the Arbitrator for the
determination of the Olimpia Purchase Price shall not prejudice the
possibility and efforts of the Telco Directors to reach an agreement also
after the First Telco's Board of Directors up until the date of the Telco's
Board of Directors pursuant to paragraph 1.2(bb) of the Shareholders'
Agreement which, in any case, shall not be called to resolve on the
acceptance of the non-cash offer without a prior determination of the
equivalent cash value, which will be the Olimpia Purchase Price.
In the event of any transaction which involves the formation of an
encumbrance, except as provided for in section 25 below, Telco Directors,
prior to the Telco's Board of Directors called pursuant to paragraph 1.1(c)
of the Shareholder's Agreement, shall determine and unanimously agree in
writing on the Olimpia Purchase Price. In the event Telco Directors do not
reach an agreement on the Olimpia Purchase Price on or before the First
Telco's Board of Directors, the Olimpia Purchase Price shall be determined
- based on valuation principles generally accepted for transactions similar
for size and nature - pursuant to Article 1349, first paragraph, of the
Italian Civil Code, by the
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Arbitrator to be appointed jointly by TE and Telco' shareholders or,
lacking an agreement within 3 days from the First Telco's Board of
Directors, by the Chairman of the Tribunal of Milan (in which case,
following the referred term of 3 days, any of the parties, any of the
Telco' shareholders or TE, will be entitled to request such appointment
from the Chairman of the Tribunal of Milan). The Parties agree that the
Arbitrator shall determine the Olimpia Purchase Price within 5 Business
Days from its appointment, based on the criteria indicated above.
The Parties agree that the appointment of the Arbitrator for the
determination of the Olimpia Purchase Price shall not prejudice the
possibility and efforts of the Telco Directors to reach an agreement also
after the First Telco's Board of Directors up until the date of the Telco's
Board of Directors pursuant to paragraph 1.2(bb) of the Shareholders'
Agreement which, in any case, shall not be called to resolve upon any
encumbrance without a prior determination of the Olimpia Purchase Price.
2.5 EXERCISE OF THE CALL OPTION.
2.5.1 The Call Option on the Olimpia Shares shall become exercisable by TE
upon verification of the following conditions:
(i) the Board of Directors of Telco having resolved in the
Relevant Telco's Board of Directors Resolution to dispose,
directly or indirectly in any form of manner (including
through measures with equivalent effect, such as mergers or
demergers of Telco), or encumber, O shares or any rights
attached thereto (including, but not limited to, voting
rights), pursuant to Clause 1.2(bb) of the Shareholders
Agreement; and
(ii) TE being a Dissenting Shareholder pursuant to Clause 1.2(cc)
of the Shareholders Agreement.
2.5.2 It is hereby understood and agreed that the Call Option shall not be
exercisable in the following events:
(i) the merger between Telco and O which may take place pursuant
to Clause 1.1(d)(A) of the Shareholders' Agreement; and
(ii) any encumbrance or pledge without voting rights which may be
required by the lenders in connection with the refinancing of
Telco or O, to the extent that the refinancing documents
contains provisions, to be agreed and resolved beforehand by
Telco's Board of Directors with the majority provided for by
Clause 1.1(c) of the Shareholders Agreement, which reasonably
protects the rights of TE to acquire the O shares in the event
that the enforcement of the encumbrance or the pledge is
triggered.
Without prejudice to Article 2.10 below, following the exercise of
the Call Option and upon payment of the Olimpia Purchase Price, TE
will become the owner of the Olimpia Shares. Any further actions or
steps to be taken following the exercise of the Call Option and the
granting of any applicable regulatory and/or
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antitrust authorisation will be deemed to be merely performance of
the obligations to deliver to TE the Olimpia Shares, it being
understood that the performance of the aforementioned actions and
steps and the fulfilment of the aforementioned obligation will not
affect the effectiveness of the transfer which will be deemed to
have occurred following the exercise of the Call Option and upon
granting of any applicable regulatory and/or antitrust
authorisation.
2.6 TIME OF EXERCISE. TE shall have the right to exercise the Call Option
within thirty days following the date of the conditions under Article 2.5.1
above have occurred.
2.7 NOTICE OF EXERCISE. The Call Option shall be exercised in writing by means
of a notice to be sent to the Chairman of the Board of Directors of Telco,
including written confirmation that TE has no actual knowledge of any fact
or condition such to determine the prohibition of the Olimpia Closing
pursuant to Article 2.10 below which cannot be remedied within the 180 days
term provided under the same Article 2.10 below.
2.8 ESCROW DEPOSIT. Immediately upon receipt of the Call Option notice (i) the
Olimpia Shares shall be deposited in escrow with a fiduciary company or
otherwise, in any case to secure the delivery of the Olimpia Shares, and
(ii) subject to deposit in escrow of the full Olimpia Purchase Price, the
voting rights thereon shall be exercised in accordance with TE
instructions, to the extent permitted by law.
2.9 CLOSING
2.9.1 Subject to the exercise of the Call Option, the completion of the
acquisition of the Olimpia Shares by TE ("OLIMPIA Closing") shall
take place within 15 Business Days following:
(a) the relevant written request sent by TE to the Chairman of the
Telco Board of Directors, or
(b) if the transaction is subject to any antitrust and/or
regulatory authorisation (and subject to Clause 2.10 below),
the earlier of (i) the obtaining of such authorisations, or
(ii) 180 days from the exercise of the Call Option, or the
longer maximum term provided for in the third party proposal
triggering the exercise of the Call Option.
2.9.2 At the Olimpia Closing:
(a) TE shall pay to Telco the Olimpia Purchase Price, as well as
any applicable stamp duty, transfer charges and notary
expenses;
(b) Telco shall meet before the public notary that will be
indicated by TE and shall duly endorse in favour of TE and
deliver to TE the certificates representing the Olimpia Shares
free and clear from any lien, option, charge, or encumbrances
of any kind, and a copy of the relevant page of the relevant
shareholders' book containing the annotation attesting that TE
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has been registered therein as the owner and the holder of the
Olimpia Shares;
(c) Telco shall execute and deliver all other documents and
instruments required to be executed or delivered before or at
Olimpia Closing, in order to perfect the delivery of the
Olimpia Shares to TE.
2.9.3 It is hereby understood and agreed that TE shall be entitled to
appoint any company controlled or controlling pursuant to Article
2359, first paragraph, n. 1, of the Italian Civil Code to close the
transaction exercising the above mentioned rights and perform the
above mentioned obligations at the Olimpia Closing, provided that TE
shall remain responsible toward Telco of the full compliance by such
person or entity of the Olimpia Closing pursuant to this Clause 2.9.
2.10 AUTHORIZATIONS. If the Olimpia Closing requires any antitrust and/or
regulatory authorisation, TE shall prepare and submit to the competent
authorities the relevant filing as soon as reasonably possible and the
Parties shall cooperate in good faith to obtain such authorisations.
In such event - unless more favourable conditions and/or terms are provided
for in the transaction triggering the exercise of the Call Option, in which
case TE may opt (at its own unquestionable discretion) to match and benefit
of the same conditions and/or terms of such transaction - if, within 180
days from the exercise of the Call Option:
2.10.1 TE is not formally prohibited to proceed with the Olimpia Closing
and obtains the necessary EU Commission and/or EU Member State
antitrust authorities' authorisations, then TE will have to acquire
the Olimpia Shares in accordance with Section 2.9, irrespective of
whether one or more authorisations are still pending or have been
granted subject to conditions (including conditions imposed by EU
Commission and/or EU Member State antitrust authority), provided
however that if a decision of the EU Commission or any EU Member
State antitrust authority is not obtained, then the Olimpia Closing
shall not occur and no Party shall have any liability for or in
connection with such circumstances and within the following six
month period Telco shall be free to execute an agreement with the
original potential buyer or with any other party for the disposal of
the relevant Olimpia Shares under the terms and conditions included
in the Relevant Telco's Board of Directors Resolution (provided that
a consideration that is higher than the Olimpia Purchase Price shall
always be admitted with no reserves or further need of approval).
2.10.2 Any competent authority has prohibited TE to proceed with the
Olimpia Closing, then:
(a) the relevant Olimpia Closing shall not occur and no Party
shall have any liability for or in connection with such
circumstances and, within the following six month period,
Telco shall be free to execute an agreement with the original
potential buyer or with any other party for the disposal of
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the relevant Olimpia Shares under the terms and conditions
included in the Relevant Telco's Board of Directors
Resolution, (provided that a consideration that is higher than
the Olimpia Purchase Price shall always be admitted with no
reserves or further need of approval), and
(b) in the event Telco receives, at any time, any other
unsolicited offer for the acquisition of Olimpia Shares and a
new Relevant Telco's Board of Directors Resolution is passed,
then TE will only be entitled to exercise the Call Option on
the Olimpia Shares to the extent it gives evidence, through a
legal opinion of a primary law firm, that all reasons that
motivated the prohibition have been removed. Provided that,
if, once again, any competent authority prohibits, also for
reasons other than those that have motivated the first
prohibition, TE to proceed with the Olimpia Closing, then the
Olimpia Closing shall occur in accordance with section 2.9,
provided further that in this case TE will be entitled to
appoint any person or entity to close the transaction
exercising the rights and performing the obligations referred
to in Section 2.9 above at the Olimpia Closing and provided
further that TE shall remain responsible toward Telco of the
full compliance by such person or entity of the Olimpia
Closing.
ARTICLE III
3. CALL OPTION ON TI SHARES
3.1 GRANT OF CALL OPTION. Subject to the terms and conditions of this Call
Option Agreement, Telco and O hereby irrevocably and unconditionally grant
to TE the right to purchase from Telco and/or O (as the case may be) the TI
Shares (as defined below) and, provided that the Call Option is exercised
in accordance with the terms and conditions of this Call Option Agreement,
Telco and O irrevocably and unconditionally agree to transfer the TI Shares
for the TI Purchase Price (as defined below) pursuant to the terms set
forth in this Article III.
3.2 CONSIDERATION. The Call Option is hereby granted to TE by Telco and O in
consideration of the investment commitment in Telco and O undertaken by TE
pursuant to the Co-Investment Agreement and taking into account the overall
balance of the economic interests existing between all parties to the
Co-Investment Agreement and the Shareholders Agreement. Accordingly, TE,
Telco and O hereby acknowledge and agree that the Call Option on TI Shares
shall be deemed to be onerous and not gratuitous.
3.3 OBJECT OF THE CALL OPTION. Object of the Call Option shall be the number of
TI shares (or the relevant rights attaching thereto) which the Board of
Directors of Telco and/or the Board of Directors of O will have resolved to
dispose or encumber, as specified in the relevant Board of Directors
resolution (the "TI SHARES" and such relevant Telco/O's Board of Directors
resolution, the "RELEVANT TELCO/O'S BOARD OF DIRECTORS RESOLUTION").
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3.4 PURCHASE PRICE. Subject to the exercise of the Call Option, the purchase
price to be paid upon TI Closing (as defined below) by TE to Telco or O, as
the case may be, as consideration for the TI Shares in the event of any
transaction which involves a cash purchase price, shall be equal to the
price indicated in the Relevant Telco/O's Board of Directors Resolution
(the "TI PURCHASE PRICE").
In the event of any transaction which involves a non-cash consideration,
Telco and/or O Directors (as the case may be), on or before the Telco/O's
Board of Directors called pursuant to paragraph 1.1(c) of the Shareholder's
Agreement, shall determine and unanimously agree in writing on the TI
Purchase Price (to be determined as equivalent cash value of such
transaction). In the event Telco/O's Directors do not reach an agreement on
the TI Purchase Price on or before the Telco/O's Board of Directors called
to resolve upon the transaction pursuant to paragraph 1.1(c) of the
Shareholders' Agreement (the "FIRST TELCO/O'S BOARD OF DIRECTORS"), the TI
Purchase Price shall be determined - based on valuation principles
generally accepted for transactions similar for size and nature - pursuant
to Article 1349, first paragraph, of the Italian Civil Code, by the
Arbitrator to be appointed jointly by TE and Telco/O's shareholders or,
lacking an agreement within 3 days from the First Telco/O's Board of
Directors, by the Chairman of the Tribunal of Milan (in which case,
following the referred term of 3 days, any of the parties, any of Telco/O's
shareholders or TE, will be entitled to request such appointment from the
Chairman of the Tribunal of Milan). The Parties agree that the Arbitrator
shall determine the TI Purchase Price within 5 Business Days from its
appointment, based on the criteria indicated above.
The Parties agree that the appointment of the Arbitrator for the
determination of the TI Purchase Price shall not prejudice the possibility
and efforts of the Telco/O's Directors to reach an agreement also after the
First Telco/O's Board of Directors up until the date of the Telco/O's Board
of Directors pursuant to paragraph 1.2 (bb) of the Shareholders' Agreement
which, in any case, shall not be called to resolve on the acceptance of the
non-cash offer without a prior determination of the equivalent cash value,
which will be the TI Purchase Price.
In the event of any transaction which involves the formation of an
encumbrance, except as provided for in section 3.5 below, Telco or O
Directors (as the case may be), prior to the Telco/O's Board of Directors
called pursuant to paragraph 1.1(c) of the Shareholder's Agreement, shall
determine and unanimously agree in writing on the TI Purchase Price. In the
event Telco/O's Directors do not reach an agreement on the TI Purchase
Price on or before the First Telco/O's Board of Directors, the TI Purchase
Price shall be determined - based on valuation principles generally
accepted for transactions similar for size and nature - pursuant to Article
1349, first paragraph, of the Italian Civil Code, by the Arbitrator to be
appointed jointly by TE and Telco/O's shareholders or, lacking an agreement
within 3 days from the First Telco/O's Board of Directors, by the Chairman
of the Tribunal of Milan (in which case, following the referred term of 3
days, any of the parties, any of Telco/O's shareholders or TE, will be
entitled to request such appointment from the Chairman of the Tribunal of
Milan). The Parties agree that the Arbitrator shall determine the TI
Purchase Price within 5 Business Days from its appointment, based on the
criteria indicated above.
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The Parties agree that the appointment of the Arbitrator for the
determination of the TI Purchase Price shall not prejudice the possibility
and efforts of the Telco/O's Directors to reach an agreement also after the
First Telco/O's Board of Directors up until the date of the Telco/O's Board
of Directors pursuant to paragraph 1.2(bb) of the Shareholders' Agreement
which, in any case, shall not be called to resolve upon any encumbrance
without a prior determination of the TI Purchase Price.
3.5 EXERCISE OF THE CALL OPTION
3.5.1 The Call Option on the TI Shares shall become exercisable by TE upon
verification of the following conditions:
(a) the Board of Directors of Telco and/or O having resolved in
the Relevant Telco's Board of Directors Resolution to dispose,
directly or indirectly in any form of manner (including
through measures with equivalent effect, such as mergers or
demergers of Telco) or encumber TI shares or any rights
attached thereto (including but not limited to voting rights),
pursuant to Clause 1.2(bb) of the Shareholders Agreement; and
(b) TE being a Dissenting Shareholder pursuant to Clause 1.2(cc)
of the Shareholders Agreement.
3.5.2 It is hereby understood and agreed that the Call Option shall not be
exercisable in the following events:
(i) the merger between Telco and O which may take place pursuant
to Clause 1.1(d)(A) of the Shareholders' Agreement;
(ii) any encumbrance or pledge without voting rights which may be
required by the lenders in connection with the refinancing of
Telco or O, to the extent that the refinancing documents
contains provisions, to be agreed and resolved beforehand by
Telco or O Board of Directors, as the case may be, with the
majority provided for by Clause 1.1(c) of the Shareholders
Agreement, which reasonably protects the rights of TE to
acquire the TI shares in the event that the enforcement of the
encumbrance or the pledge is triggered;
(iii) following the decision of the Telco/O's Board of Directors to
tender the TI shares in the context of a public tender offer,
in which case Clause 28 of the Telco's by-laws shall apply.
Without prejudice to Article 3.10 below, following the exercise of
the Call Option and upon payment of the TI Purchase Price, TE will
become the owner of the TI Shares. Any further actions or steps to
be taken following the exercise of the Call Option and the granting
of any applicable regulatory and/or antitrust authorisation will be
deemed to be merely performance of the obligations to deliver to TE
the TI Shares, being it understood that the performance of the
aforementioned actions and steps and the fulfilment of the
aforementioned obligation will not affect the
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effectiveness of the transfer which will be deemed to have occurred
following the exercise of the Call Option and upon granting of any
applicable regulatory and/or antitrust authorisation.
3.6 TIME OF EXERCISE. TE shall have the right to exercise the Call Option
within thirty days following the date of the conditions under Article 3.5.1
above have occurred.
3.7 NOTICE OF EXERCISE. The Call Option shall be exercised in writing by means
of a notice to be sent to the Chairman of the Board of Directors of Telco
or O, as the case may be, including written confirmation that TE has no
actual knowledge of any fact or condition such to determine the prohibition
of the TI Closing pursuant to Article 3.10 below, which can not be remedied
within the term provided under the same Article 3.10 below.
3.8 ESCROW DEPOSIT. Immediately upon receipt of the Call Option notice (i) the
TI Shares shall be deposited in escrow with a fiduciary company or
otherwise, in any case to secure the delivery of the TI Shares, and (ii)
subject to deposit in escrow of the full TI Purchase Price, the voting
rights thereon shall be exercised in accordance with TE instructions, to
the extent permitted by law.
3.9 CLOSING
3.9.1 Subject to the exercise of the Call Option, the completion of the
acquisition of the TI Shares by TE ("TI CLOSING") shall take place
within 15 Business Days following:
(a) the relevant written request sent by TE to the Chairman of the
relevant Board of Directors, or
(b) if the transaction is subject to any antitrust and/or
regulatory authorisation (and subject to Clause 3.10 below),
the earlier of (i) the obtaining of such authorisations, or
(ii) 180 days from the exercise of the Call Option, or the
longer maximum term provided for in the third party proposal
triggering the exercise of the Call Option.
3.9.2 At the TI Closing:
(a) TE shall pay to Telco and/or O, as the case may be, the TI
Purchase Price, as well as any applicable stamp duty and
transfer charges;
(b) Telco and/or O, as the case may be, shall deliver the TI
Shares to TE, by irrevocably instructing an approved
intermediary to credit the TI Shares in dematerialised form in
the account which shall be indicated by TE in due advance,
free and clear from any lien, option, charge, or encumbrances
of any kind;
(c) Telco and/or O, as the case may be, shall perform any other
action required to be performed before or at the TI Closing in
order to perfect the acquisition of the TI Shares by TE.
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3.9.3 It is hereby understood and agreed that TE shall be entitled to
appoint any company controlled or controlling pursuant to Article
2359, first paragraph, n. 1, of the Italian Civil Code to close the
transaction exercising the above mentioned rights and perform the
above mentioned obligations at the TI Closing, provided that TE
shall remain responsible toward Telco and/or O of the full
compliance by such person or entity of the TI Closing pursuant to
this Clause 3.9.
3.10 AUTHORISATIONS. If the TI Closing requires any antitrust and/or regulatory
authorisation, TE shall prepare and submit to the competent authorities the
relevant filing as soon as reasonably possible and the Parties shall
cooperate in good faith to obtain such authorisations. In such event -
unless more favourable conditions and/or terms are provided for in the
transaction triggering the exercise of the Call Option, in which case TE
may opt (at its own unquestionable discretion) to match and benefit of the
same conditions and/or terms of such transaction - if, within 180 days from
the exercise of the Call Option:
3.10.1 TE is not formally prohibited to proceed with the TI Closing and
obtains the necessary EU Commission and/or EU Member State antitrust
authorities' authorisations, then TE will have to acquire the TI
Shares in accordance with Section 3.9, irrespective of whether one
or more authorisations are still pending or have been granted
subject to conditions (including conditions imposed by EU Commission
and/or EU Member State antitrust authority), provided however that
if a decision of the EU Commission or any EU Member State antitrust
authority is not obtained, then the TI Closing shall not occur and
no Party shall have any liability for or in connection with such
circumstances and within the following six month period Telco and/or
O, as the case may be, shall be free to execute an agreement with
the original potential buyer or with any other party for the
disposal of the relevant TI Shares under the terms and conditions
included in the Relevant Telco/O's Board of Directors Resolution
(provided that a consideration that is higher than the TI Purchase
Price shall always be admitted with no reserves or further need of
approval).
3.10.2 Any competent authority has prohibited TE to proceed with the TI
Closing, then:
(i) the relevant TI Closing shall not occur and no Party shall
have any liability for or in connection with such
circumstances and, within the following six month period,
Telco and/or O, as the case may be, shall be free to execute
an agreement with the original potential buyer or with any
other party for the disposal of the relevant TI Shares under
the terms and conditions included in the Relevant Telco/O's
Board of Directors Resolution, (provided that a consideration
that is higher than the TI Purchase Price shall always be
admitted with no reserves or further need of approval) and
(ii) in the event Telco and/or O, as the case may be, receives, at
any time, any other unsolicited offer for the acquisition of
TI Shares and a new Relevant Telco/O's Board of Directors
Resolution is passed, then TE will only be
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entitled to exercise the Call Option on the TI Shares to the
extent it gives evidence, through a legal opinion of a primary
law firm, that all reasons that motivated the prohibition have
been removed. Provided that, if, once again, any competent
authority prohibits, also for reasons other than those that
have motivated the first prohibition, TE to proceed with the
TI Closing, then the TI Closing shall occur in accordance with
section 3.9, provided further that in this case TE will be
entitled to appoint any person or entity to close the
transaction exercising the rights and performing the
obligations referred to in Section 3.9 above at the TI Closing
and provided further that TE shall remain responsible toward
Telco and/or O, as the case may be, of the full compliance by
such person or entity of the TI Closing.
ARTICLE IV
4. MISCELLANEOUS
4.1 DURATION. This Call Option Agreement shall commence on the date hereof, and
shall expire on the Expiry Date of the Shareholders Agreement.
4.2 GOVERNING LAW/EXCLUSIVE JURISDICTION. This Call Option 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 Call
Option 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.
4.3 NOTICES. Any notices or other communication required or permitted to be
given under this Call Option Agreement shall be in writing and shall be
delivered in person, transmitted by fax, or sent by international courier
or registered mail, charges prepaid, addressed as follows:
4.3.1 If to TE, at:
Xxxx Xxx x. 00, Xxxxxx 0,
00000, Xxxxxx, Xxxxx
To the attention of: the Group General Counsel
(Xxxxxx Xxxxxxx xx Xxxxx-Xxxxx),
Ph: + 00 00 000 0000
Fax: + 00 00 000 0000
E mail: XXXXXXXXXX.XXXXXXX@XXXXXXXXXX.XX
4.3.2 If to Telco, at:
Xxxxxxxx xxx Xxxxx 0
00000 Xxxxx, Xxxxx
To the attention of the Chairman
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4.3.3 If to O, at:
Xxxxx Xxxxx 000
00000 Xxxxx, Xxxxx
To the attention of the Chairman
4.4 EXTRAORDINARY TRANSACTIONS AFFECTING O OR TI. In the event of any
extraordinary transaction involving TI or O, such as mergers, de-mergers,
liquidations, or other transactions affecting the share capital of TI or O:
4.4.1 any rights of TE under this Call Option Agreement shall apply to,
MUTATIS MUTANDIS, and be binding on, (i) the successors and
assignees of the rights and obligations of T1 and/or O as a result
of the relevant extraordinary transaction (as the case may be), and
(ii) the shares or other financial instruments issued in exchange or
conversion of the TI Shares and the O Shares (as the case may be);
and
4.4.2 as soon as possible after execution of the relevant extraordinary
transaction, the Parties shall sign an amendment and restatement of
this Call Option Agreement reflecting the appropriate changes as
result of the relevant extraordinary transaction.
4.5 EXPENSES. TE, Telco and O shall each bear their own expenses, costs and
fees in connection with the preparation and execution of this Call Option
Agreement, provided that (i) the fees of the first tier international
investment bank referred to in last paragraph of Clauses 2.4 and 3.4 above
shall be equally shared by TE, on one side, and the other parties, on the
other side and (ii) the costs for any relevant antitrust and regulatory
filing and procedure as well as for the completion of the transfer to TE of
the Olimpia Shares or the TI Shares, as the case may be, shall be borne by
TE.
4.6 ASSIGNMENT. This Call Option Agreement and the rights, interest or
obligations hereunder shall not be assigned by one Party without the prior
written consent of the other Parties.
4.7 INTEGRATION. Without prejudice of the contents of the Co-Investment
Agreement, the Shareholders Agreement - as subsequently amended - and the
SPA, this Call Option Agreement constitutes the entire agreement of the
Parties and supersedes all prior agreements and understandings, both
written and oral, of the Parties with respect to the subject matter hereof.
4.8 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Call Option Agreement shall be binding on any Party unless consented to in
writing by such Party. No waiver of any provision of this Call Option
Agreement shall constitute a waiver of any other provision, nor shall any
waiver constitute a continuing waiver unless otherwise expressly provided.
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4.9 DEED OF ADHERENCE. In the event that a third party would become a new
shareholder of Telco or O, the Parties hereby undertake to include as a
condition precedent the execution of a deed of adherence of such third
party to this Call Option Agreement.
4.10 COUNTERPARTS. This Call Option Agreement may be executed in counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same instrument.
ARTICLE V
5. OLIMPIA ADHERENCE
Telco hereby undertakes, in its position of controlling shareholder of O,
to cause O to adhere to this Call Option Agreement within 30 days from its
execution.
IN WITNESS WHEREOF, the Parties have caused this Call Option Agreement to be
executed by officers duly authorised thereunto as of the date first above
written.
Milan, 6 November, 2007
TELEFONICA S.A.
BY: _________________________________________________
TITLE: ______________________________________________
TELCO S.P.A.
BY: _________________________________________________
TITLE: ______________________________________________
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