TWELFTH AMENDMENT AGREEMENT Dated 5 June 2015 among: ING Bank N.V., London Branch (“ING”), AND Telenor East Holding II AS (the “Counterparty”).
Exhibit 99.1
(conformed copy)
TWELFTH AMENDMENT AGREEMENT
Dated 5 June 2015 among:
ING Bank N.V., London Branch (“ING”),
AND
Telenor East Holding II AS (the “Counterparty”).
ING and the Counterparty are parties to a Total Return Swap Transaction as evidenced by the letter agreement dated 2 June 2006, as amended and novated by the Assignment, Novation and Amendment Agreement dated 30 March 2007 between and among ING, Telenor ASA and Telenor East Invest AS, as further amended by the Second Amendment Agreement dated 11 May 2007, and as further amended by the Third, Fourth, Fifth, Sixth, Seventh and Ninth Amendment Agreements dated 2 June 2008, 28 May 2009, 2 June 2010, 9 June 2010, 1 June 2011 and 6 June 2012 respectively and as amended and novated by an Assignment, Novation and Amendment Agreement effective as of 6 July 2011 and as further amended by the Tenth and Eleventh Amendment Agreements dated 5 June 2013 and 5 June 2014 respectively (together with additional completed Supplemental Confirmations, the “TRS”).
ING and the Counterparty wish to further amend the TRS in certain respects, as described herein.
Accordingly, the parties hereby agree as follows:
1. Definitions.
Unless otherwise specified in this Twelfth Amendment Agreement (this “Agreement”), terms defined in the TRS (including by incorporation by reference) are used herein as therein defined.
2. Amendments.
The parties agree that Paragraph 2, 3 and 4 of the TRS (except for the section in Paragraph 2 headed “Additional Provisions”) are amended and restated in their entirety to read as follows:
2. The terms of the particular Transaction to which this Master Confirmation relates are as follows:
General Terms:
| Trade Date: | 5 June 2015 | |||
| Effective Date: | 10 June 2015 | |||
| Termination Date: | The final Cash Settlement Payment Date | |||
| Shares: | VimpelCom LTD-SPON ADR ISIN: US92719A1060 (Sedol No. B62HR76) | |||
| Exchange: | NASDAQ GS | |||
| Related Exchange(s): | All Exchanges | |||
| Calculation Agent: | ING | |||
Equity Amounts payable by the Equity Amount Payer:
| Equity Amount Payer: | ING | |||
| Number of Shares: | 2,237,000 | |||
| Equity Notional Amount: | USD 12,482,460; being on the Trade Date the Number of Shares multiplied by the Initial Price. | |||
| Equity Notional Reset: | Applicable | |||
| Type of Return: | Total Return | |||
| Initial Price: | In respect of the initial Valuation Date, USD 5.58 | |||
| Final Price: | In respect of any Valuation Date other than a Final Valuation Date, the Relevant Price. In respect of a Final Valuation Date, provided the parties have not otherwise agreed on a Final Price (including an amount representing ING’s cost of funding, inclusive of the Spread, for the period from the Termination Date to the final Cash Settlement Payment Date) by no later than 4pm London time (the “Notification Time”) on the second Exchange Business Day following such Final Valuation Date, then the following provisions shall apply.
On or before the Notification Time on the third Exchange Business Day following such Final Valuation Date, ING shall notify the | |||
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| Counterparty whether ING elects, in its sole discretion, to dispose of the Shares being terminated and, if ING so elects, the number of days, between 5 and 40 (beginning on the relevant Termination Date), designated by ING for such disposal (the “Unwind Period”).
If ING notifies the Counterparty on or before the Notification Time on the third Business Day following such Final Valuation Date that ING has elected not to dispose of all of the Shares, the Final Price shall be the Relevant Price on the relevant Final Valuation Date.
If ING notifies the Counterparty on or before the Notification Time on the third Business Day following such Final Valuation Date that ING has elected to dispose of the Shares being terminated during the Unwind Period, the Final Price shall be the sum of (i) the costs and expenses of ING in disposing of such Shares (which shall not exceed 20 bps, based on the Equity Notional Amount in respect of such Shares on the relevant Termination Date); and (ii) the product of the Relevant Price on each day during the Unwind Period multiplied by the Daily Unwind Amount on any such day, provided that, in calculating the Final Price, any terminated Shares that ING does not dispose of during the Unwind Period shall be deemed to have been disposed of on the final day of the Unwind Period.
The “Daily Unwind Amount” shall be the number of Shares disposed of (or deemed disposed of) by ING on any day during the Unwind Period.
The final Cash Settlement Payment Date shall be three Exchange Business Days following the earliest of (i) the date on which the parties have agreed the Final Price, (ii) the last day of the Unwind Period or (iii) such date on which ING notifies the Counterparty that it has disposed of all of the Shares. | ||||
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| If the parties fail to agree the Final Price as provided in the first paragraph of this section, then the Counterparty shall be obligated to pay ING’s cost of funding (including the Spread) in respect of the terminated Shares held by it during the period commencing on the Termination Date and ending on the final Cash Settlement Payment Date determined in accordance with clause (ii) or (iii) of the preceding paragraph. | ||||
| Relevant Price: | The official closing price per Share quoted by the Exchange as of the Valuation Time on the Valuation Date. | |||
| Valuation Time: | The Scheduled Closing Time on the relevant Exchange. | |||
| Valuation Date(s): | The third Exchange Business Day preceding the Cash Settlement Payment Date. | |||
Floating Amounts payable by the Floating Amount Payer:
| Floating Amount Payer: | Counterparty | |||
| Notional Amount: | The Equity Notional Amount | |||
| Payment Date(s): | The Cash Settlement Payment Date | |||
| Designated Maturity: | 1 Month | |||
| Spread: | Plus 1.100000% | |||
| Floating Rate Option: | USD LIBOR-BBA | |||
| Floating Rate for the initial Calculation Period: |
0.1850% (exclusive of spread) | |||
| Floating Rate Day Count Fraction: |
Actual/360 | |||
| Reset Dates: | The first day of each Calculation Period. | |||
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| Business Days: | New York, London and Oslo | |||
Settlement Terms:
| Cash Settlement: | Applicable | |||
| Settlement Currency: | USD | |||
| Cash Settlement Payment Date: | 10 July 2015; 10 August 2015; 10 September 2015; 13 October 2015; 10 November 2015; 10 December 2015; 11 January 2016; 10 February 2016; 10 March 2016; 11 April 2016; 10 May 2016; 10 June 2016 | |||
| Settlement Method Election: | Not Applicable | |||
| Dividends: | ||||
| Dividend Period: | First Period | |||
| Dividend Amount: | Record Amount
“Record Amount” means, in relation to a dividend amount, the dividend percentage of the gross cash dividend per share declared by the Issuer to holders of record of a share on any record date occurring during the relevant dividend period. | |||
| Dividend Percentage: | 85.00% | |||
| Dividend Payment Dates: | Each date on which the Issuer pays the relevant dividend to its shareholders of record. Provided that, if such payment date falls after the Termination Date, the Dividend Amount shall be paid on the date on which the Issuer pays the relevant dividend to its shareholder of record and such obligation to pay will constitute its legal valid and binding obligation enforceable in accordance with the terms of this Master Confirmation. | |||
| Extraordinary Dividend: | As determined by the Calculation Agent, (i) any cash dividend declared on the Shares at a time | |||
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| when the Issuer has not previously declared or paid dividends on such Shares for the four quarterly periods; (ii) any increase by more than 25% (determined on an annualised basis) in the dividends paid on the Shares; (iii) any payment by the Issuer to shareholders that the Issuer announces will be an extraordinary dividend; (iv) any payment by the Issuer to shareholders out of the Issuer’s capital and surplus; or (v) any other “special” cash or non-cash dividend on, or distribution with respect to, the Shares which is, by its terms or declared intent, declared and paid outside the normal operations or normal dividend procedures of the relevant Issuer. For the avoidance of doubt, the Calculation Agent shall determine, in its sole discretion, whether such amount shall be included as part of an adjustment pursuant to Section 11.2 of the Equity Definitions. | ||||
| Re-investment of Dividends: | Not applicable | |||
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Adjustments:
| Method of Adjustment : | Calculation Agent Adjustment |
Extraordinary Events:
| Consequences of Merger Events: | ||||
| Share-for-Share: |
Alternative Obligation | |||
| Share-for-Other: |
Modified Calculation Adjustment | |||
| Share-for-Combined: |
Modified Calculation Adjustment | |||
| Determining Party: |
Calculation Agent | |||
| Tender Offer: | Applicable | |||
| Consequences of Tender Offers: | ||||
| Share-for-Share: |
Modified Calculation Agent Adjustment | |||
| Share-for-Other: |
Modified Calculation Adjustment | |||
| Share-for-Combined: |
Modified Calculation Adjustment | |||
| Determining Party: |
Calculation Agent | |||
| Composition of Combined Consideration: |
Not Applicable | |||
| Nationalisation, Insolvency or Delisting: |
Negotiated Close-out | |||
| Determining Party: |
Calculation Agent | |||
Additional Disruption Events:
| Change in Law: | Applicable | |||
| Insolvency Filing: | Applicable | |||
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| Determining Party: | Calculation Agent | |||
| Non-Reliance: |
Applicable | |
| Agreements and Acknowledgements Regarding Hedging Activities: |
Applicable | |
| Additional Acknowledgements: |
Applicable | |
Optional Early Termination:
| Optional Early Termination: | Applicable | |||
| Option Style: | Bermuda | |||
| Exercising Party: | ING, Counterparty | |||
| Exercise Business Day: | New York, London, Oslo | |||
| Procedure for Exercise: | ||||
| Bermuda Option Exercise Date: | Each Valuation Date (excluding the Final Valuation Date) | |||
| Expiration Date: | 5 Business Days preceding Bermuda Option Exercise Date | |||
| Expiration Time: | 11:00 New York time | |||
| Partial Exercise: | Applicable (the number(s) and name(s) of the Shares being terminated (the “Terminated Shares”) must be specified in the notice) | |||
| Multiple Exercise: | Applicable | |||
| Minimum Notional Amount: | Not Applicable | |||
| Maximum Notional Amount: | Not Applicable | |||
| Settlement Terms: | ||||
| Cash Settlement: | Applicable | |||
| Cash Settlement Valuation Time: | Valuation Time | |||
| Cash Settlement Valuation Date: | The relevant Valuation Date | |||
| Cash Settlement Payment Date: | The relevant Cash Settlement Payment Date | |||
| Cash Settlement Method: | For the avoidance of doubt, if either party designates an Early Termination pursuant to the terms hereof, the Cash Settlement Valuation Date shall be deemed the final Valuation Date with respect to the Terminated Shares, the relevant Cash Settlement Payment Date shall be deemed to be the Termination Date with respect to the Terminated Shares and the Calculation Agent will determine the amounts that would be payable pursuant to the terms of this Transaction accordingly. | |||
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| EMIR PDD Protocol:
|
||
| EMIR PDD Protocol: |
The parties agree that the amendments and provisions set out in the attachment to the ISDA 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on 19 July 2013 and available on the ISDA website (xxx.xxxx.xxx) (the “PDD Protocol”) shall be incorporated into and apply to this Agreement and that (i) references to the Adherence Letter shall be references to this Agreement, (ii) references therein to the “Protocol Covered Agreement” shall be deemed to be references to this Agreement (and each “Protocol Covered Agreement” shall be read accordingly), and (iii) references therein to “Implementation Date” shall be deemed to be references to the date of this Agreement. Furthermore, we confirm that we are Portfolio Data Sending Entity and you confirm that you are a Portfolio Data Receiving Entity (as both such terms are defined in the PDD Protocol. Our address for any notices or communications to us in respect of portfolio data, reconciliation and dispute resolution is XXX.Xxxxxxxxxxxxxxx@xxxxxxx.xxx.” | |
Notices:
Contact details for ING for purpose of giving notice:
Name: Redacted
Tel: Redacted
Fax: Redacted
Email: Redacted
Contact details for Counterparty for purpose of giving notice:
Name: Redacted
Tel: Redacted
Fax: Redacted
Email: Redacted
Governing Law: English Law
General/Additional Provisions
| 3. Offices: |
ING is acting through its London Office, and Counterparty is acting through its Fornebu Office. | |
| 4. Account Details: |
Payments to ING:
| |
| Bank of America NY Bic code : BOFAUS3N Account: Redacted | ||
| In favour of: ING Bank N.V Bic Code: INGB GB2L | ||
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| Payments to Counterparty: Swift Code: XXXXXXXX XXX account: Redacted | ||
| In favour of: Telenor East Holding II AS |
The amendments to the TRS set forth in this Clause 2 shall become effective when this Agreement has been executed by each party hereto. Except as herein provided, the TRS shall remain unchanged and in full force and effect, and references in the TRS to “this Master Confirmation” (including indirect references such as “hereof”, “herein”, “thereof” and “therein”) shall be deemed to be references to the TRS as amended hereby. No further amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of electronic messages on an electronic messaging system.
3. Counterparts.
This Agreement may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.
4. Costs and Expenses.
The parties will each pay their own costs and expenses (including legal fees) incurred in connection with this Agreement and as a result of the negotiation, preparation and execution of this Agreement.
Counterparty will reimburse ING for ADR Agent Fees which it incurs in connection with the TRS regardless of whether such fees are due after the Termination Date.
5. Governing Law.
This Agreement, any non-contractual obligations arising out of or in relation to this Agreement, will be governed by and construed in accordance with the laws of England and Wales.
6. Jurisdiction.
The terms of Section 13(b) of the Agreement (as defined in the TRS) shall apply to this Agreement, with references in such Section to “this Agreement” being deemed references to this Agreement alone.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the respective dates specified below.
Party
| ING BANK, N.V., LONDON BRANCH | ||||||||
| By: | /s/ Xxxxx Xxxxxxx |
By: | /s/ Xxxxxxx Xxxx | |||||
| Name: | Xxxxx Xxxxxxx | Name: Xxxxxxx Xxxx | ||||||
| Title: | Authorised Signatory | Title: Authorised Signatory | ||||||
| Date: | 5 June 2015 | Date: 5 June 2015 | ||||||
Party
| TELENOR EAST HOLDING II AS | ||
| By: | /s/ Pål Stette | |
| Name: | Pål Stette | |
| Title: | Attorney-in-fact | |
| Date: | 8 June 2015 | |
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