Exhibit 61
SHARE SALE AND PURCHASE
TIME CONTRACT
Between:
Mediobanca S.p.A., with address at Xxxxxxxxx Xxxxxx, 0, Xxxxx, Company Capital
392,848,832.50 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 February 1, 2005, 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.
1
[initials]
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
per Share (the "Maximum Price"). The quantity of Shares subject to sale
and the Purchase Price will be established on the basis of Article 4
below.
2.2 If, between the date of this Contract and the Closing date (as defined
in Article 5.1 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 sell to
the Purchaser, and the Purchaser will buy from the Seller, 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;
2
[initials]
(iii) this Contract and the obligations which this Contract creates
are valid and binding and 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 effective for the Purchaser, are
susceptible to execution, also in specific form, in
compliance with the regulations specified therein;
3
[initials]
(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 - Quantity of Shares and Purchase Price
4.1 The Purchase Price will be established in good faith by the Seller, on
the basis of the criteria established in Article 4.2 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 283,000,000 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 80.857.143 Shares; this notwithstanding the
hypotheses specified in Article 2.2 above.
4.2 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).
4.3 The Purchase Price, established in accordance with Article 4.2 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 Article
4
[initials]
2.2 above. The product of the Purchase Price and the quantity of
Shares to be transferred is hereinafter referred to as the "Sale
value".
4.4 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 4.2 above and, when it receives
this request, the Seller will be obliged to promptly provide the
Purchaser with all the information reasonably requested.
Article 5 - Closing
5.1 Unless otherwise agreed between the parties, 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 February 28, 2005 and May 30, 2005. If the
Purchaser will not set and communicate to the Seller the date within
May 23, 2005, the Closing will be automatically set on May 31, 2005.
5.2 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.
5.3 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 Telecom Italia 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.
5.4 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 6 - Expenses and duties
6.1 Notwithstanding the regulations specified in Article 4.2 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. No other
repayment will be due from the Purchaser to the Seller in relation to
this Contract.
5
[initials]
Article 7 - Applicable Law and disputes
7.1 This Contract is regulated by Italian Law.
7.2 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 8 - 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 9 - 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, February 16, 2005
Olimpia S.p.A. Mediobanca S.p.A.
[signature] [signature]
6
