TIAOF Telcom Italia SPA New (PK)

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.   )*

TELECOM ITALIA S.P.A.

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(Name of Issuer)

Ordinary Shares with no nominal value

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(Title of Class of Securities)

87927W10

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(CUSIP Number)

Mr. Xavier Niel

16 rue de la Ville l’Evéque

75008 Paris

France

+33 1 73 50 27 48

 

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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

November 28, 2015

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(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

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CUSIP No. 87927W10

SCHEDULE 13D

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CUSIP No. 87927W10

SCHEDULE 13D

PAGE 4 OF 11 PAGES

 

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CUSIP No. 87927W10

SCHEDULE 13D

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ITEM 1.   SECURITY AND ISSUER

The class of equity securities to which this Statement on Schedule 13D relates is the ordinary shares (the “Shares”), no nominal value, of Telecom Italia S.p.A., a company formed under the laws of the Republic of Italy (the “Issuer”).  The principal executive office of the Issuer is located at Via Gaetano Negri 1, 20123 Milan, Italy.

ITEM 2.   IDENTITY AND BACKGROUND

Mr. Niel’s principal business address is 16 rue de la Ville l’Evéque, 75008 Paris, France.  Mr. Niel’s present principal occupation is Deputy Chairman of the Board of Directors and Deputy CEO in charge of strategy at Iliad SA (“Iliad”).  Iliad’s principal business is as a provider of telecommunications services in France and its principal business address is 16 rue de la Ville l’Evéque, 75008 Paris, France.  Mr. Niel is also employed as the CEO (Président) of NJJ Holding.

The name, state or other place of organization and address of the principal business and the principal office of the Companies are set forth on Schedule A attached hereto and are incorporated herein by reference.  The principal business of the Companies is holding securities for investment.

The name, citizenship, residence or business address, present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each director and executive officer of the Companies (collectively referred to herein as the “Directors and Officers”) are set forth on Schedule B attached hereto and incorporated herein by reference.

(d) During the last five years, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of the Directors and Officers, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) During the last five years, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of the Directors and Officers, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) Mr. Niel is a citizen of France.

ITEM 4.   PURPOSE OF TRANSACTION

The Reporting Persons entered into the Option Agreements (as defined in Item 6) for strategic investment purposes.  The Reporting Persons will routinely monitor and review a wide variety of investment considerations with respect to the Issuer, including, without limitation, the Issuer’s operations, assets, prospects and business development, the Issuer’s management and board of directors, the Issuer's capital structure, Issuer-related competitive and strategic matters and general economic, financial market and industry conditions, and will also routinely monitor and review potential responses on the part of the Issuer to such considerations, including, without limitation, potential investment opportunities and strategies and potential strategic transactions.  The Reporting Persons have discussed, and expect to continue to discuss, any or all of these matters with representatives of the Issuer's management or board of directors, with other shareholders of the Issuer and with other interested stakeholders.  The Reporting Persons may, as a result of this monitoring, review and discussions, acquire additional securities of the Issuer or otherwise increase their economic exposure to the Issuer, sell securities of the Issuer or otherwise reduce their economic exposure to the Issuer, make proposals to the Issuer or other shareholders of the Issuer concerning the composition of the Issuer’s board of directors, potential strategic transactions involving the Issuer or respond to proposals from other shareholders of the Issuer concerning potential strategic transactions involving the Issuer.

 

The responses set forth in Items 3 and 6 of this Statement on Schedule 13D are incorporated by reference in their entirety into this Item 4.

Except as discussed above, none of the Reporting Persons nor, to the best of the Reporting Persons’ knowledge, the persons listed in Schedule A or B, have any present plans or proposals which relate to or would result in any of the matters referred to in Items 4(a) through 4(j) of Schedule 13D promulgated under the Securities Exchange Act of 1934, as amended.  However, the Reporting Persons reserve the right to change their plans at any time, as they deem appropriate, in light of the foregoing considerations, discussions and other factors.

ITEM 5.   INTEREST IN SECURITIES OF THE ISSUER

ITEM 6.   CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

The Reporting Persons are parties to an agreement with respect to the joint filing of this Statement on Schedule 13D and any amendments thereto.  A copy of such agreement is attached as Exhibit 99.1 and is incorporated by reference herein.

Rock Investment has entered into various European-style option transactions with Credit Suisse International, each of which may result in a delivery of Shares to (or by) Rock Investment if it so elects:

 

 

(collectively, the “Credit Suisse Share-Settled Option Agreements”).  At Rock Investment’s election, the Credit Suisse Share-Settled Option Agreements may be settled in cash or through the delivery of Shares.

In addition Rock Investment has entered into various European-style option transactions with Société Générale, each of which may result in a delivery of Shares to Rock Investment:

(collectively, the “Société Générale Share-Settled Option Agreements” and, together with the Credit Suisse Share-Settled Option Agreements, the “Share-Settled Option Agreements”).  The Société Générale Share-Settled Option Agreements, if exercised, will be settled through the delivery of Shares.

 

Rock Investment has also entered into:

(together, the “Cash-Settled Option Agreements” and, together with the Share-Settled Option Agreements, the “Option Agreements”).

The Cash-Settled Option Agreements do not provide the Reporting Persons with the Shares on exercise or the power to vote or direct the voting of or dispose of or direct the disposition of the Shares with respect to which the payment obligations thereunder are determined.

Rock Investment does not have the right to elect to early terminate any of the Option Agreements other than in connection with standard events of default and termination events and certain other extraordinary events and disruption events.

ITEM 7.   MATERIAL TO BE FILED AS EXHIBITS

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: December 8, 2015

	Rock Investment SAS
	By:	/s/ Xavier Niel
		Name:  Xavier Niel
		Title:    as CEO (Président) of NJJ Holding,              itself CEO (Président) of Rock Investment SAS

	NJJ Holding
	By:	/s/ Xavier Niel
		Name:  Xavier Niel
		Title:    CEO (Président)

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CUSIP No. 87927W10

SCHEDULE 13D

PAGE 10 OF 11 PAGES

 

SCHEDULE A

ENTITIES

 

 

 

 

 

 

SCHEDULE B

DIRECTORS AND OFFICERS

The name, country of citizenship and current principal occupation or employment of each of the Directors and Officers are set forth below.

Rock Investment SAS

*Rock Investment, a French société par actions simplifiée (SAS), is managed by its CEO (Président), NJJ Holding, listed above in Schedule A and has no directors and, other than its CEO (Président), no officers.

NJJ Holding

*NJJ Holding, a French société par actions simplifiée (SAS), is managed by its CEO (Président), Mr. Xavier Niel, listed above in Item 2 and has no directors and, other than its CEO (Président), no officers.

 

JOINT FILING AGREEMENT

Each of the Joint Filers further agrees that each Joint Filer is responsible for the timely filing of such Statement on Schedule 13D and any amendments thereto insofar as it relates to such Joint Filer’s obligation under Section 13(d) of the Exchange Act, and for the accuracy and completeness of the information concerning such Joint Filer contained therein, provided, however, that no Joint Filer is responsible for the accuracy or completeness of the information concerning the other Joint Filers, unless such Joint Filer knows or has reason to believe that such information is inaccurate.

This agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument.

[Signature page follows]

 

IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of this 8th day of December, 2015.

 

	Rock Investment SAS
	By:	/s/ Xavier Niel
		Name:  Xavier Niel
		Title:    as Président of NJJ Holding, itself Président of Rock Investment SAS

 

 

	NJJ Holding
	By:	/s/ Xavier Niel
		Name:  Xavier Niel
		Title:    Président

 

 

	By:	/s/ Xavier Niel
		Name:  Xavier Niel

 

 

 

[Signature Page – Joint Filing Agreement]

 

 

Date: 14 July 2015

To:	Rock Investment SAS 16, rue de la Ville L’Evêque 75008 Paris

 

 

Dear Sirs,

The purpose of this letter agreement (this Confirmation) is to confirm the terms and conditions of Transaction (the Transaction) entered into between us on the Trade Date specified below. This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below and supersedes any prior correspondence between us in relation to the Transaction.

The definitions and provisions contained in the 2006 ISDA Definitions (the 2006 Definitions) and the 2002 ISDA Equity Derivatives Definitions (the Equity Definitions, and together with the 2006 Definitions, the Definitions), in each case as published by the International Swaps and Derivatives Association, Inc. (ISDA), are incorporated into this Confirmation. In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.

This Confirmation shall supplement, form a part of, and be subject to the ISDA 2002 Master Agreement (the Agreement) as if on the Trade Date specified in this Confirmation, you and we had executed the ISDA 2002 Master Agreement without any Schedule except for the following additional provisions and elections (the Master Agreement):

(i)

the Master Agreement shall solely apply to the Transaction governed by this Confirmation and any other share option transaction entered into between the parties with respect to the Shares of the Issuer specified in this Confirmation, (the Relevant Transactions) and to no other transaction between us and accordingly any Event of Default or Termination Event arising under that Master Agreement shall solely affect, and the provisions of Sections 6(e) and 6(f) of that Agreement will only apply to, the Relevant Transactions (for the avoidance of doubt, the “Other Amounts” referred to in Section 6(f) of the Agreement shall only include amounts arising under the Agreement);

(ii)

the Automatic Early Termination provisions contained in Section 6(a) of such agreement shall not apply in relation to Party A and shall not apply in relation to Party B;

(iii)

the Termination Currency is EUR;

(iv)

for the purposes of Section 3(f) of this Agreement, Party B makes the following representations:

(1)

it is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes; and

 

 

(2)

it is a “non-US branch of a foreign person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for United States federal income tax purposes.

(v)

for the purposes of Sections 4(a)(i) and 4(a)(ii) of this Agreement, Party B agrees to deliver the following documents: an IRS Form W-8BEN and/or any other document required or reasonably requested to allow Party A to make payments under the Agreement without any deduction or withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (to be delivered within 5 Business Days of the Trade Date of each Transaction under this Confirmation and promptly upon learning that the form and statement previously provided by Party B has become obsolete or incorrect);

(vi)

Party B will also deliver an up to date copy of the following documents on or prior to the Trade Date which will be covered by the Section 3(d) Representation:

(1)

Party B’s statuts (its company articles); and

(2)

an electronic copy of the Extrait Kbis in respect of respectively NJJ Holding and Party B evidencing that NJJ Holding is the Président of Party B and Monsieur Xavier Niel is the Président of NJJ Holding.

(vii)

the Agreement and any non-contractual obligations arising out of or in relation to this Agreement will be governed by and construed in accordance with English law. All disputes arising out of or in relation to this Agreement or any non-contractual obligations arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the English Courts;

(viii)

for the purposes of Section 13(c) of the Agreement, Party B will appoint its Process Agent within 10 Business Days (as defined in the General Terms below) of the date of this Agreement and will notify such appointment to Party A promptly thereafter;

(ix)

without prejudice to any other consequences under the Agreement, if Party B fails to appoint a Process Agent, Party B agrees that Party A shall be entitled to appoint one on behalf of and at the expense of Party B but for the avoidance of doubt Party A will also be permitted to effect service by any other method permitted by law;

(x)

“Multiple Transaction Payment Netting” will apply for the purpose of Section 2(c) of the Agreement to all Relevant Transactions;

(xi)

the parties agree that the definitions and provisions contained in Annexes 1 to 18 and Section 6 of the 2002 Master Agreement Protocol published by ISDA on 15 July 2003 are incorporated and apply to the Agreement. References in those definitions and provisions to any “ISDA 2002 Master Agreement and/or “2002 Master” will be deemed to be references to the Agreement; and

(xii)

the parties to the Agreement agree that the amendments set out in the Attachment to the ISDA 2012 FATCA Protocol published by ISDA on 15 August 2012 and available on the ISDA website (www.isda.org) shall apply to the Agreement. The parties further agree that the Agreement will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the Trade Date as specified in this Confirmation regardless of the definitions of such terms in the Protocol.

This Confirmation relates to a Transaction consisting of a Call Option relating to the Shares. The terms of this Transaction are as follows:

 

2.	GENERAL TERMS
2.1	General Terms

 

 

 

	Share for Share:	Modified Calculation Agent Adjustment.
	Share for Other:	Modified Calculation Agent Adjustment.
	Share for Combined:	Modified Calculation Agent Adjustment.

 

	Share for Share:	Modified Calculation Agent Adjustment.
	Share for Other:	Modified Calculation Agent Adjustment.
	Share for Combined:	Modified Calculation Agent Adjustment.

 

 

 

 

(i)	Each party represents to the other party on the Trade Date and at all times during the Term of this Transaction, that:

 

	(a)       it is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction; It has not received from the other party any assurance or guarantee as to the expected results of the Transaction;
	(b)       it is capable of assessing the merits of, and understanding (on its own behalf or through independent professional advice), and understand and accepts, the terms, conditions, risks and suitability of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction;
	(c)       the other party (and the other party’s affiliates, employees or agents) are not acting as a fiduciary for or an adviser to it in respect of the Transaction; and
	(d)       it will make all disclosures required to be made by it under applicable law or regulation in respect of its entry into the Transaction.

	(a)       it has discussed the Transaction and has been advised on legal and tax matters by its independent legal counsel and has taken such other internal or external advice to the extent that it has deemed necessary;
	(b)       it has such sophistication, knowledge and experience in financial and business matters that it is capable of evaluating the merits, risks and suitability of entering into the Transaction;
	(c)       the purpose and effect of this Transaction are permissible and appropriate as a matter of applicable law, custom and regulation in the applicable jurisdiction;
	(d)       it is solely responsible for deciding to enter into the Transaction and has not relied on any other party, other than its own advisors, in respect of the accounting or tax treatment to be applied to this Transaction, or the overall suitability of this Transaction;
	(e)       the Transaction, including the accounting and tax treatment to be accorded to the Transaction, is consistent with all regulatory requirements applicable to Party B and arising from or applicable to the Transaction and it has taken all steps necessary to ensure that the Transaction complies with such requirements, and it will ensure that such accounting and tax treatment is appropriately reflected, if required, with the proper regulatory authorities in the applicable jurisdiction;
	(f)       it, its officers, directors and employees, its Président and its Président’s Président has complied, and will comply, with all laws, regulations and administrative provisions applicable to it (or them) and that are relevant in connection with this Transaction, including disclosure obligations and market abuse provisions (if any);

	(g)       it has entered into this Transaction as principal for its own account in the normal and ordinary course of its business;
	(h)       it has the requisite corporate power and authority to enter into the Transaction and perform the obligations thereunder. The execution and delivery of this Confirmation by Party B and the consummation by Party B of the Transaction contemplated hereby have been duly authorized by all necessary corporate action. This Confirmation has been duly executed and delivered by Party B; and
	(i)       for the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “Regulation”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(h) of the Regulations) in any other jurisdiction.
	(iii)       Party B represents to Party A on the Trade Date, each date during the Initial Hedging Period that Party B imposes or varies an Initial Hedge Condition during the Initial Hedging Period and, to the extent a Settlement Method Election notice is given, the date on which Party B gives the relevant notice for that purpose (each a “Relevant Date”) that it and its directors, officers and employees, its Président and its Président’s Président are not in possession of any material non-public information about the Issuer and/or the Shares.
	For the avoidance of doubt, the mere existence of this Transaction between Party A and Party B does not constitute material non-public information for the purpose of this representation or the Event of Default below.
	(iv)       On the Trade Date, Party B represents to Party A that there has been no change in the identity or percentage holdings of the shareholder(s) of (i) Party B since 12 September 2013 and (ii) NJJ Holding since 2 September 2013.

 

	(a)	Party B will comply in all material respects with the laws, regulations and administrative provisions applicable to it (or them) in respect of the Transaction, including disclosure or reporting requirements in respect of the Transaction.
	(b)	Party A will provide Party B with an indicative aggregate mark to market valuation promptly following the end of each calendar month in respect of the then outstanding Individual Tranches. Such valuations will not be firm offers to trade additional options or be binding in any way on Party A and nor will they reflect the amount that would be payable following termination of the Transaction in accordance with Section 6 of the Agreement. The provision of such valuations will also be subject to the applicable policies of Party A, including, without limitation, its standard terms and disclaimers for such valuations.

 

10.3	Additional Event of Default

 

(a)

In addition to the Events of Default in Section 5 of the Agreement, it shall be an additional Event of Default in respect of Party B if any Relevant Person:

 

	(i)	at any time is not in compliance with its disclosure obligations or undertakes any action that constitutes market abuse under any relevant laws; or
	(ii)	is on a Relevant Date in possession of any material non-public information in respect of the Issuer and/or the Shares.

 

(b)

Party B will notify Party A upon Party B becoming aware that a circumstance that constitutes an Event of Default under sub-paragraph (a) above has arisen.

 

 

 

	“Relevant Person” means Party B, and its directors, officers and employees, its Président (and its directors and officers) and its Président’s Président, each of the ultimate shareholders of Party B from time to time and any intermediate holding company through which such ultimate shareholders hold interests in Party B.
	For the avoidance of doubt Relevant Date has the meaning given in 10.1(iii) above and will only include a date in respect of a Settlement Method Election if Party B gives a notice for that purpose to Party A.

 

11.

NOTICES

 

	The addresses and telephone and facsimile numbers for delivery of notices hereunder shall be as follows:
	Notices to Party A:

	Address: Credit Suisse International
	One Cabot Square
	London E14 4QJ
	England
	Attention:	(A) Head of Credit Risk Management; and
		(B) Global Head of OTC Operations - Operations Department; and
		(C) Head of Client Management Team, General Counsel Division
	Swift:	Credit Suisse International CSFP GB2L
	Facsimile:	+44 (0) 207888 2686
	Attention:	Head of Client Management Team, General Counsel Division
	Telephone number for oral confirmation of receipt of facsimile in legible form under this Agreement: +44 (0) 207888 2055. Designated responsible employee for the purposes of Section 12(a)(iii) of the Agreement: Senior Legal Secretary.
	With a copy to:
	Facsimile:	+44 (0) 207888 3715
	Attention:	Head of Credit Risk Management
	With a copy to:
	Facsimile:	+44 (0) 207888 9503
	Attention:	Global Head of OTC Operations - Operations Department.

 

 

 

	Payments to Party A and Party B shall be made as follows:
	Payments to Party A:	Bank:	Citibank London (CITIGB2L)
		Beneficiary:	Credit Suisse International
		Account:	10403229
	Payments to Party B:	To be advised separately
	Deliveries to Party A and Party B shall be made as follows:
	Deliveries to Party A:	Bank:	Euroclear Bank Brussels
		Swift code:	MGTCBEBEECL
		CSD Account number:	EGSP 611
		Beneficiary:	Credit Suisse Securities (Europe) Limited
		Account:	Euroclear 93827
	Deliveries to Party B:	To be advised separately

 

 

	(i)	London is specified as the location for its Local Business Days for the purposes of the EMIR Port Rec Protocol; and
	(ii)	Party B agrees to deliver the following items to Party A at the contact details shown below:

 

	(A)	the Portfolio Data:

	portfolio.recon@credit-suisse.com (as may be updated from time to time); and
	(B)	notices of a discrepancy and Dispute Notices:

 

	I.	recognition or valuation of OTC trades:portfolio.recon@credit-suisse.com

II.

collateral: cmu.recon@credit-suisse.com

 

(b)

Party B is a Portfolio Data Receiving Entity, with respect to which:

14.	ISDA 2013 EMIR NFC REPRESENTATION PROTOCOL

 

Party A confirms that it is an adhering party to the ISDA 2013 EMIR NFC Representation Protocol (NFC Protocol), as published by the ISDA on 8 March 2013 and available on the ISDA website (www.isda.org). Party A and Party B agree that the provisions set out in the attachment to the NFC Protocol and Party A’s elections made in its adherence letter to the NFC Protocol are incorporated into and shall apply to the Agreement as if the Agreement was a Covered Master Agreement. In this regard, references to “the Implementation Date” shall mean the date of this Confirmation and references to “the Agreement” shall mean the Agreement. For the purposes thereof:

 

	(a)	Party A is a Party that does not make the NFC Representation;
	(b)	Party B is a Party making the NFC Representation; and
	(c)	for the purposes of sub-paragraph (ii) of the NFC Status provisions contained in the attachment to the NFC Protocol, the address details for the delivery by Party B to Party A of any Clearing Status Notice, Non-Clearing Status Notice, NFC+ Representation Notice, NFC Representation Notice or Non-representation Notice are:
		Clearing_status_notices@credit-suisse.com
	(d)	in respect of any Clearing Status Notice or a Non-representation Notice delivered by Party B to Party A, Party B shall inform Party A of the date on which subparagraph (i)(1) and/or (i)(2) of the NFC Representation, as applicable, became, or will become, incorrect in respect of Party B. Party B provides such information (i) in the relevant Clearing Status Notice or a Non-representation Notice, or (ii) failing which, as soon as possible upon Party A’s request. The failure by Party B to take any action mentioned in this subparagraph will not constitute an Event of Default under the Agreement.
	(e)	If the representation in subparagraph (i)(1) of the NFC Representation proves to have been incorrect or misleading in any material respect when made (or deemed repeated) by Party B (where Party B has become a financial counterparty (as such term is defined in EMIR) after it had served a Clearing Status Notice), sub-paragraph (iii) of the attachment to the NFC Protocol shall be deemed to apply and, for that purpose, (1) any Transactions subject to the clearing obligation pursuant to EMIR shall be deemed to be “Relevant NFC Clearable Transactions” and Transactions shall otherwise be deemed to be “Relevant NFC Non-Clearable Transactions”, (2) for the purposes of the definitions “Relevant NFC Non-Clearable Transaction Risk Mitigation Deadline Date” and “Change of Status Party”, the references to subparagraph (i)(2) of the NFC Representation therein shall be deemed to be references to subparagraph (i)(1) of the NFC Representation.

 

If Party B delivers a Non-representation Notice to Party A other than because Party B is or will become a financial counterparty (as such term is defined in EMIR), Party A will classify Party B as a non-financial counterparty that is subject to the clearing obligation.

 

 

	Credit Suisse International is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and Prudential Regulation Authority and has entered into this transaction as principal. The time at which the above transaction was executed will be notified to Party B on request.
	Please confirm your agreement to be bound by the terms of the foregoing by executing the copy of this Confirmation enclosed for that purpose and returning it to us.

 

 

 

	Very truly yours,
	CREDIT SUISSE INTERNATIONAL
	By:	/s/ Mounir Elarchi
		Name:	Mounir Elarchi
		Title:	Managing Director

 

 

	By:	/s/ Walter Rotondo
		Name:	Walter Rotondo
		Title:	Managing Director

 

 

 

 

 

 

SCHEDULE 1

 

 

 

Amendment Agreement dated 6 August 2015
(the “Amendment Agreement”)

between

The parties have previously entered into an option transaction (the “Transaction”) pursuant to a confirmation dated 14 July 2015 (as amended from time to time, the “Confirmation”), governed by the Master Agreement as defined therein, and have now agreed to amend the Confirmation by the terms of this Amendment Agreement.

Accordingly, in consideration of the mutual agreements contained in this Amendment Agreement, the parties agree as follows:

 

With effect from the date of this Amendment Agreement:

 

 

On the date of this Amendment Agreement, each party makes the representations set forth in section 10.1(i) of the Confirmation and the Counterparty makes the representations set forth in section 10.1(ii), (iii) and (iv) of the Confirmation, for the purposes of which the definition of the “Relevant Date” in section 10.1(iii) of the Confirmation shall be deemed to include the date of this Amendment Agreement

IN WITNESS WHEREOF the parties have executed this Amendment Agreement on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

CREDIT SUISSE INTERNATIONAL

ROCK INVESTMENT SAS

 

 

By:	/s/ Mounir Elarchi			By:	/s/ Xavier Niel
Name:	Mounir Elarchi			Name:	Xavier Niel
Title:	Managing Director			Title:	President
Date:				Date:	6/08/2015

 

 

 

 

 

Re.:	Amendment to the Confirmation of an Option Transaction

 

Dear Sirs,

The purpose of this letter agreement (this Amendment) is to amend the terms of the Call Option Transaction in respect of shares in Telecom Italia confirmed by a Confirmation entered into between us with a Trade Date of 14 July 2015 as previously amended by the parties on 6 August 2015 (the Confirmation). The Confirmation is subject to and forms part of a 2002 ISDA Master Agreement as if the parties had executed such agreement on the same date as the Confirmation with the elections specified in the Confirmation (the Agreement).

Capitalised terms used in this Amendment but not otherwise defined have the meaning given to them in the Confirmation.

 

	(such date, the Amendment Date).
	For the avoidance of doubt, the parties acknowledge that if the Amendment Date occurs after the Scheduled Amendment Date, it will not constitute an Event of Default.

 

 

(a)	The Initial Number of Iliad Shares will be equal to a number of Iliad Shares as determined by Party A in accordance with the following formula and rounded to the nearest integer:

 

 

 

 

 

 

IN WITNESS WHEREOF the parties have executed this Amendment on the respective dates specified below with effect from the date specified first on the first page of this Amendment.

 

 

ANNEX 1

 

 

 

 

 

 

 

 

The following provisions are inserted into the Confirmation as paragraph 11 and 12 and the remaining paragraphs are re-numbered accordingly.

 

11.	CREDIT SUPPORT DOCUMENTS AND CREDIT SUPPORT PROVIDER

 

	The Pledge shall be a Credit Support Document and the Pledgor shall be a Credit Support Provider in each case in respect of Party B for the purposes of the Agreement.
	For the avoidance of doubt:

 

 

(a)

Party A will determine the Actual Ratio in respect of each Exchange Business Day during the Pledge Period and if the Actual Ratio is greater than or equal to the Top-Up Ratio, Party A may send a written notice to Party B (with a copy to the Pledgor) informing them of the Actual Ratio and the Pledged Share Closing Price in respect of such Exchange Business Day and requiring the delivery of additional collateral or a prepayment of the Accrued Premium in accordance with the below (the “Top-Up Notice”). In addition to the notice details specified elsewhere in this Agreement, Party A may send the Top-Up Notice solely by email sent to (i) xniel@iliad.fr (on behalf of himself as Pledgor and as representative of Party B) or (ii) to such other email addresses in respect of Party B and the Pledgor as have been notified by Party B to Party A from time to time.

 

such that following such payments and taking into account the Additional Pledged Shares transferred to the Pledged Account by the Pledgor on or prior to the Cut-off Time in accordance with sub-paragraph (b) above (if any), the Actual Ratio is lower than or equal to the Restore Ratio. For the avoidance of doubt no payment is required by Party B where the Additional Pledged Shares alone are sufficient to reduce the Actual Ratio to lower than or equal to the Restore Ratio.

 

 

 

	The payment by Party B of each Cash Collateral Amount to Party A shall constitute a transfer of title of the relevant Cash Collateral Amount. All rights, title and interest in and to such transferred Cash Collateral Amount will pass to Party A upon transfer.
	The references to Cash Collateral Account and Cash Collateral Account Balance are for record keeping purposes only and are not accounts of Party B and do not represent any proprietary interest of Party B in the cash collateral.

 

 

(a)	Notwithstanding any term of the Agreement, if an Early Termination Date is designated in respect of this Transaction as a result of either an Event of Default or a Termination Event (in each case arising in respect of either party):

 

 

 

 

	(i)	the Cash Collateral Account Balance on the preceding day; multiplied by
	(ii)	EONIA in respect of that day; divided by
	(iii)	365.

 

 

 

(a)	If on any Exchange Business Day including immediately after the Amendment Date:

 

 

then Party B may by written notice to Party A on such Exchange Business Day (the Request Notice) require that Party A:

 

 

Notwithstanding any other provision of the Agreement, this Confirmation or of the Pledge, the Parties agree that the possession of any material non-public information by Party B or the Pledgor in respect of the Issuer and/or the Shares will not prevent Party B from serving any Request Notice above.

 

(b)	The Requested Cash Amount and Requested Number of Iliad Shares (assuming such payment and/or release is made by Party A) must not result in:

 

 

and any Request Notice that would result in such consequences is not valid.

 

(c)	Unless the Release Conditions are no longer satisfied, then by no later than 2:00 p.m. on the second Scheduled Trading Day following the receipt of a valid Request Notice:

 

 

 

 

 

 

in each case as envisaged by the Pledged Share Adjustment Notice.

 

 

 

 

 

 

 

 

 

ANNEX 2


DOCUMENTS TO BE DELIVERED


PART 1


CONDITIONS PRECEDENT

The Conditions Precedent are set out below and will only be satisfied if delivered in a form and substance satisfactory to Party A. Other than the Executed Agreements, the Legal Opinions and the financial statements of Party B, each of the documents will be covered by the Section 3(d) Representation given by Party B. In respect of the financial statements, Party B represents that the financial statements fairly represented Party B’s financial condition as at the date at which the financial statements were drawn up.

Each of the following documents executed by the parties to those documents:

A copy of any satisfactory document evidencing that the Initial Number of Iliad Shares have been deposited in the Pledged Account and that Societe Generale has confirmed that it has undertaken any steps to implement the procédure nominative administrée with respect to the Iliad Shares owned by the Pledgor linked to the mandate that has been granted to the Custodian to administer and operate the Pledged Account.

 

 

PART 2

OTHER DOCUMENTS TO BE DELIVERED

In addition to the documents listed in the Confirmation and in Part 1 of this Annex 2, Party B also agrees to provide each of the following documents for the purpose of Section 4(a)(ii).

 

1.	FINANCIAL STATEMENTS
	Party B shall supply to Party A as soon as the same become available, but in any event within five and a half calendar months after the end of each of its financial years, its audited financial statements for the relevant financial year which shall be prepared in accordance with French generally accepted accounting principles. Such financial statements should be consolidated but only to the extent that Party B prepares consolidated statements.
	Party B represents each time it delivers financial statements that the financial statements fairly represented Party B’s financial condition as at the date at which the financial statements were drawn up.

 

Re.:	Amended and Restated Confirmation of a Call Spread Transaction with Maturity Date 21 September 2017

 

Dear Sirs,

The purpose of this letter agreement (this Confirmation) is to confirm the terms and conditions of Transaction (the Transaction) entered into between us on the Trade Date specified below. This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. This amended and restated Confirmation supersedes and replaces the initial confirmation of the Transaction dated 21 October 2015,  with effect from and including the Amendment Effective Date specified below.

The definitions and provisions contained in the 2006 ISDA Definitions (the 2006 Definitions) and the 2002 ISDA Equity Derivatives Definitions (the Equity Definitions, and together with the 2006 Definitions, the Definitions), in each case as published by the International Swaps and Derivatives Association, Inc. (ISDA), are incorporated into this Confirmation. In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.

This Confirmation shall supplement, form a part of, and be subject to the ISDA 2002 Master Agreement (the Agreement) as if on the Trade Date specified in this Confirmation, you and we had executed the ISDA 2002 Master Agreement without any Schedule except for the following additional provisions and elections (the Master Agreement):

	(i)	the Master Agreement shall solely apply to the Transaction governed by this Confirmation and to no other transaction between us and accordingly any Event of Default or Termination Event arising under that Master Agreement shall solely affect, and the provisions of Sections 6(e) and 6(f) of that Agreement will only apply to, this Transaction (for the avoidance of doubt, the “Other Amounts” referred to in Section 6(f) of the Agreement shall only include amounts arising under the Agreement). The parties agree that notwithstanding the provisions of the Confirmation dated 14 July 2015 evidencing the terms of the share option transaction entered between them on 14 July 2015 (as amended from time to time, the “July Confirmation”), this Transaction shall not be deemed to be the Relevant Transaction as defined in the July Confirmation and accordingly, this Confirmation shall supplement, form a part of and be subject to the Agreement as defined above;
	(ii)	the Automatic Early Termination provisions contained in Section 6(a) of such agreement shall not apply in relation to Party A and shall not apply in relation to Party B;
	(iii)	the Termination Currency is EUR;

(iv)

for the purposes of Section 3(f) of this Agreement, Party B makes the following representations:

		(1)	it is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes; and
		(2)	it is a “non-US branch of a foreign person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for United States federal income tax purposes.

	(vii)	the Agreement and any non-contractual obligations arising out of or in relation to this Agreement will be governed by and construed in accordance with English law. All disputes arising out of or in relation to this Agreement or any non-contractual obligations arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the English Courts;
	(viii)	for the purposes of Section 13(c) of the Agreement, Party B will appoint its Process Agent within 10 Business Days (as defined in the General Terms below) of the date of this Confirmation and will notify such appointment to Party A promptly thereafter;
	(ix)	without prejudice to any other consequences under the Agreement, if Party B fails to appoint a Process Agent in accordance with sub-paragraph (vi) above, Party B agrees that Party A shall be entitled to appoint one on behalf of and at the expense of Party B but for the avoidance of doubt Party A will also be permitted to effect service by any other method permitted by law;
	(xi)	the parties agree that the definitions and provisions contained in Annexes 1 to 18 and Section 6 of the 2002 Master Agreement Protocol published by ISDA on 15 July 2003 are incorporated and apply to the Agreement. References in those definitions and provisions to any “ISDA 2002 Master Agreement and/or “2002 Master” will be deemed to be references to the Agreement; and
	(xii)	the parties to the Agreement agree that the amendments set out in the Attachment to the ISDA 2012 FATCA Protocol published by ISDA on 15 August 2012 and available on the ISDA website(www.isda.org)shall apply to the Agreement. The parties further agree that the Agreement will be deemed to be a Covered Master Agreement and that the Implementation Date shall be the Trade Date as specified in this Confirmation regardless of the definitions of such terms in the Protocol.

1.	PARTIES
	The Parties are:

	(a)	Credit Suisse International, an unlimited liability company incorporated under the laws of England and Wales, whose registered office is located at One Cabot Square, London E14 4QJ, United Kingdom, registered with the companies registry of England and Wales under number 2500199 (Party A); and
	(b)	Rock Investment SAS, a société par actions simplifiée incorporated under the laws of France, whose registered office is located at 16 rue de la Ville l’Evêque, 75008 Paris, registered at the Paris companies and trade register under number 795 278 860 (Party B).