EXHIBIT 10.5
Public Deed No. 83/2000
P U B L I C D E E D
(Offentliche Urkunde)
Before me, the undersigned Public Notary of the Canton of Zug, Switzerland,
Peter B. Arnold, at his offices at Untermuli 6, CH-6300 Zug, Switzerland,
appeared on Friday, this 13th day of October 2000:
1. Stefan Koller, born 23 September 1958, Swiss citizen, residing at
Rebenstrasse 6, 6312 Steinhausen, Switzerland, Attorney-at-law, having his
offices at Untermuli 6, 6300 Zug, Switzerland, here acting not in his own
name but in the name and on behalf of
- Seat Pagine Gialle S.p.A., Via Aurelio Saffi, 18, I-10138 Torino,
Italy,
based on the duly legalized power of attorney dated 12 October 2000,
which was presented upon notarisation and of which a copy is
attached hereto as ENCLOSURE A;
- J.P. Morgan Securities Ltd., 60 Victoria Embankment, GB-London EC4Y
0JP, England,
based on the duly legalized power of attorney dated 12 October 2000,
which was presented upon notarisation and of which a copy is
attached hereto as ENCLOSURE B.
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2. Hugo Trutsch, born 10 June 1958, Swiss citizen, residing at Rutiweid 2,
6340 Baar, Switzerland, Attorney-at-law, having his offices at
Neuhofstrasse 4, 6340 Baar, Switzerland, here acting not in his own name
but in the name of and on behalf of
RSL COM Deutschland GmbH, D-60528 Frankfurt am Main, Lyonerstr. 9,
Germany,
based on the duly legalized power of attorney dated 11 October 2000, which
was presented upon notarisation and of which a copy is attached hereto as
ENCLOSURE C.
The question of a prior involvement within the meaning of ss. 3 (1)(7) of the
German Notarial Recordings Act was answered in the negative by the individuals
appeared herein.
This having been done, the persons appearing declared, requesting that it be
notarised, the following:
AMENDMENT AGREEMENT TO THE JOINT VENTURE AGREEMENT
DATED 6 MAY 2000 AS AMENDED ON 10 MAY 2000
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SEAT PAGINE GIALLE S.P.A.
RSL COM DEUTSCHLAND GMBH
AND
J.P. MORGAN SECURITIES LTD.
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AMENDMENT AGREEMENT TO THE JOINT VENTURE
AGREEMENT DATED 6 MAY 2000 AS AMENDED ON
10 MAY 2000
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CONTENTS
CLAUSE PAGE
1. Interpretation..................................................4
2. Amendments to the Joint Venture Agreement.......................4
3. Amendments to the Borrowing Request.............................5
4. Amendments to the Forward Purchase Transaction..................6
5. Release of the Cash Collateral..................................6
6. Regular Information.............................................6
7. Miscellaneous...................................................6
8. Costs and Taxes.................................................6
9. Governing Law - Arbitration.....................................7
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THIS AMENDMENT AGREEMENT dated 13 October 2000 is made among:
(1) Seat Pagine Gialle S.p.A., Via Aurelio Saffi 18, I-10138 Torino, Italy
("Seat");
(2) RSL COM Deutschland GmbH, Lyonerstrasse 9, D-60528 Frankfurt am Main,
Germany ("RSL"); and
(3) J.P. Morgan Securities Ltd., 60 Victoria Embankment, London, EC4Y 0JP,
England ("J.P. Morgan").
WHEREAS
(A) Seat and RSL have entered into a Joint Venture Agreement dated 6 May 2000,
Public Deed Urk.Nr. 44/2000 of the Public Notary, Peter B. Arnold,
Untermuli 6, CH-6300 Zug/Switzerland, which was amended by the Agreement
regarding certain clarifications concerning the Public Deeds established
by the acting Public Notary Urk.Nr. 43/2000, Urk.Nr. 44/2000 and Urk. Nr.
45/2000 between, inter alia, the parties to this Agreement on 10 May 2000,
Public Deed Urk.Nr. 47/2000 of the Public Notary, Peter B. Arnold,
Untermuli 6, CH-6300 Zug/Switzerland. Certified copies of these deeds were
available for inspection by those present at the notarisation of this
Agreement. Those present waived the right to have these deeds read out
aloud and to have these deeds annexed to this Agreement.
(B) RSL and J.P. Morgan have entered into a Borrowing and Forward Purchase
Agreement as Exhibit 4 to the Joint Venture Agreement which consists of
(i) an Overseas Securities Lender's Agreement together with a Schedule;
(ii) a Borrowing Request; (iii) an Agreement for the Transfer of Shares as
Annex 1 to the Borrowing Request together with four appendices; (iv) an
Escrow Agreement as Annex 2 to the Borrowing Request (also entered into
with Morgan Stanley Bank AG, Junghofstrasse 13-15, D-60311 Frankfurt am
Main, Germany, as Escrow Agent) with two appendices; (v) a 1992 ISDA
Multicurrency - Cross Border Master Agreement together with a Schedule and
the 1991 ISDA Definitions, the 1998 Supplement to the 1991 ISDA
Definitions and the 1996 ISDA Equity Derivatives Definitions; (vi) a
Forward Purchase Transaction and (vii) a Master Netting Agreement.
(C) All conditions of the transactions which should pursuant to the Joint
Venture Agreement have taken place by 15 October 2000 will have taken
place by that date except that the new Seat shares are not issued and
freely tradable. In light of this development and in order to allow for
such transactions to be performed still after 15 October 2000, the
amendment agreements mentioned in paragraph (D) of these recitals are
being entered into.
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(D) Seat, RSL and J.P. Morgan have agreed to amend the Joint Venture Agreement
together with the Borrowing and Forward Purchase Agreement. Seat and J.P.
Morgan intend also to enter into an amendment agreement governed by
Italian law of even date herewith to amend the Share Purchase Agreement
entered into between Seat and J.P. Morgan and attached as Exhibit 5 to the
Joint Venture Agreement.
1. INTERPRETATION
In this Agreement, including the recitals hereto, except so far as the
context otherwise requires and subject to any contrary indication, words
and expressions defined and expressed to be construed in the Joint Venture
Agreement and the relevant Exhibits to the Joint Venture Agreement shall
have the same meaning and construction mutatis mutandis herein.
2. AMENDMENTS TO THE JOINT VENTURE AGREEMENT
2.1 The reference in Section 3 (Consideration) subparagraph 3 of the Joint
Venture Agreement to 15 October 2000 shall be amended and replaced by a
reference to 30 November 2000 (the "Amended Final Subscription Date").
2.2 In Section 3 subparagraph 5 the words following the date of October 16,
2000 ("provided Seat decides to uphold this agreement pursuant to Section
4 No. 3 (b)") shall be deleted.
2.3 Section 4 subparagraph 3 shall be completely replaced and amended and
shall read as follows:
"Final Subscription Date
(a) In such a case where the new Seat shares contemplated by Section 3
subparagraph 3 are not available as freely tradable shares on
November 30, 2000 (the "Amended Final Subscription Date") due to
causes beyond control of Seat, the Parties shall discuss and use
their best efforts to postpone the Amended Final Subscription Date.
In the case that such discussions do not lead to a postponement of
the Amended Final Subscription Date (which would then be the "Agreed
Final Subscription Date" but which cannot be later than December 20,
2000 [the "Final Cut off Date"]) by December 20, 2000, then (and
only then, following the date of December 20, 2000) the
consideration shall become due in the form described in subparagraph
(b) below on the next Business Day. However, the consideration shall
become due in the form described in subparagraph (b) below already
immediately after November 30, 2000 if the new Seat shares
contemplated by Section 3 subparagraph 3 are not available as freely
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tradable shares on November 30, 2000 due to causes under the control
of Seat.
(b) In the cases refered to in subparagraph (a) the consideration to the
Intermediary pursuant to Section 3 subparagraph 2 shall no longer be
due in the form of Seat shares, but in the form of a cash amount
corresponding to the Cash Equivalent (as defined in Section 3
subparagraph 4).(c) The Parties agree that Seat has in any event the
right to deliver (by itself or through a third party as may be
instructed by Seat) by the Amended Final Subscription Date (or by
the Agreed Final Subscription Date, if such date will be agreed, or
by the Final Cut off Date) existing Seat shares in lieu of the new
Seat shares contemplated by Section 3 subparagraph 3 provided the
existing Seat shares are likewise freely tradable and carry at least
the same rights as the new Seat shares.
(d) The Parties agree that Seat shall (other than in the version of the
Joint Venture Agreement which was notarised on May 6, 2000) no
longer have a right to terminate this Agreement against a break-up
fee."
2.4 Subject to Section 4 subparagraph 3 of the Joint Venture Agreement as
amended, the parties to this Agreement agree that their rights and
obligations set forth in the Joint Venture Agreement as amended are
irrevocable.
2.5 For the avoidance of doubt, the Option Agreement entered into between Seat
and RSL dated 6 May 2000, Public Deed Urk.Nr. 45/2000 of the Notary
Public, Peter B. Arnold, Untermuli 6, CH-6300 Zug/Switzerland shall not be
affected by this Agreement. Consequently, the parties agree that the Joint
Venture Agreement (as amended hereby) is effective and no longer
terminable or rescindable by SEAT for any reason and accordingly, the
options provided to RSL and SEAT under the Option Agreement entered into
between Seat and RSL dated 6 May, 2000, Public Deed Urk.Nr. 45/2000 of the
Notary Public, Peter B. Arnold, Untermuli 6, CH-6300 Zug/Switzerland, are
fully exerciseable under their terms, as of the respective periods
referred to therein.
3. AMENDMENTS TO THE BORROWING REQUEST
The right of the Lender to call for the retransfer of the Securities
pursuant to Clause 7 (B) of the OSLA and the termination right of the
Borrower pursuant to Clause 7 (E) of the OSLA as amended by the Special
Terms of the Borrowing Request shall hereby be definitely waived and
excluded.
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4. AMENDMENTS TO THE FORWARD PURCHASE TRANSACTION
4.1 The definition of Purchase Price and Maturity Date under the Terms of the
Forward Purchase Transaction shall be amended and construed in light of
this Agreement.
4.2 In the definition of Maturity Date under the Terms of Forward Purchase
Transaction any reference to 15 October 2000 shall be amended and replaced
by a reference to the Amended Final Subscription Date or, where
applicable, the Agreed Final Subscription Date (as defined and referred to
in Clause 2.3 of this Agreement) or, as the case may be, the Final Cut off
Date (as defined and referred to in Clause 2.3 of this Agreement) and any
reference to 16 October 2000 shall be amended and replaced by a reference
to the next following Business Day (as defined in the Borrowing Request)
after the Amended Final Subscription Date or, where applicable, the Agreed
Final Subscription Date or, as the case may be, the Final Cut off Date.
4.3 The first sentence of the provisions of Sale and Purchase of Shares of the
Forward Purchase Transaction shall be amended and construed in the light
of this Agreement and the second sentence of the provisions of Sale and
Purchase of Shares of the Forward Purchase Transaction shall be deleted.
5. RELEASE OF THE CASH COLLATERAL
Section 3 subparagraph 5 second sentence of the Joint Venture Agreement
shall be amended as above and J.P. Morgan shall instruct the Escrow Agent
to release the Cash Collateral deposited with the Escrow Agent on 18
October 2000.
6. REGULAR INFORMATION
Seat shall instruct law firm Bonelli Erede Pappalardo to regularly inform
representatives of RSL about the status of the process by which the new
Seat shares come into existence as freely tradable shares.
7. MISCELLANEOUS
Section 14 (Confidentiality) and Section 17 (Miscellaneous) of the Joint
Venture Agreement shall apply to this Agreement, mutatis mutandis, as if
references therein to the agreement were references to this Agreement.
8. COSTS AND TAXES
Section 13 - Costs and Taxes subparagraphs 1 through 3 of the Joint
Venture Agreement shall apply to this Agreement, mutatis mutandis.
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9. GOVERNING LAW - ARBITRATION
This Agreement shall be governed by and construed in accordance with
German law. All disputes arising out of or in connection with this
Agreement shall be decided by three arbitrators according to the Rules for
Arbitration provided by the International Chamber of Commerce and, where
applicable, according to the procedures set out in the Arbitration
Agreement entered into inter alia by the Parties hereto dated 6 May 2000.
Any arbitration proceedings shall be held in Paris and in the English
language.
IN WITNESS whereof the parties hereto have executed this Agreement on the date
first above written.
Signed for and on behalf of
Seat Pagine Gialle S.p.A.
/s/
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Signed for and on behalf of
RSL COM Deutschland GmbH
/s/
-------------------------
Signed for and on behalf of
J.P. Morgan Securities Ltd.
/s/
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NOTARIAL AUTHENTICATION
(Oeffentliche Beurkundung)
(Public Deed No. 83/2000)
The undersigned Notary Public of the Canton of Zug, Switzerland, lic. iur. Peter
B. Arnold, Attorney at Law, hereby certifies and authenticates:
The foregoing Agreement corresponds with the intentions and the free will of the
parties who personally appeared in the capacities as follows:
1. Stefan Koller, born 23 September 1958, Swiss citizen, residing at
Rebenstrasse 6, 6312 Steinhausen, Switzerland, Attorney-at-law, having his
offices at Untermuli 6, 6300 Zug, Switzerland, here acting not in his own
name but in the name and on behalf of
- Seat Pagine Gialle S.p.A., Via Aurelio Saffi, 18, I-10138 Torino,
Italy,
based on the duly legalized power of attorney dated 12 October 2000,
which was presented upon notarisation and of which a copy is
attached hereto as ENCLOSURE A;
- J.P. Morgan Securities Ltd., 60 Victoria Embankment, GB-London EC4Y
0JP, England,
based on the duly legalized power of attorney dated 12 October 2000,
which was presented upon notarisation and of which a copy is
attached hereto as ENCLOSURE B.
2. Hugo Trutsch, born 10 June 1958, Swiss citizen, residing at Rutiweid 2,
6340 Baar, Switzerland, Attorney-at-law, having his offices at
Neuhofstrasse 4, 6340 Baar, Switzerland, here acting not in his own name
but in the name and on behalf of
RSL COM Deutschland GmbH, D-60528 Frankfurt am Main, Lyonerstr. 9,
Germany,
based on the duly legalized power of attorney dated 11 October 2000, which
was presented upon notarisation and of which a copy is attached hereto as
ENCLOSURE C.
The foregoing Deed was laid out for inspection to and was approved by the
persons appearing. Subsequently, the Deed was read out aloud to the persons
appearing before the notary, approved by the person appearing and executed by
them in their own hands.
This Public Deed is made out in 4 original copies.
Zug/Switzerland, this 13th day of October 2000
The Notary Public
Peter B. Arnold
