SEVENTH AMENDMENT AGREEMENT dated 1 June 2011 among: ING Bank N.V., London Branch (“ING”), AND Telenor East Invest AS (the “Counterparty”).
Exhibit 99.1
CONFORMED COPY
SEVENTH AMENDMENT AGREEMENT
dated 1 June 2011 among:
ING Bank N.V., London Branch (“ING”),
AND
Telenor East Invest 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 the Counterparty, as further
amended by the Second Amendment Agreement dated 11 May 2007, and as further amended by the Third,
Fourth, Fifth and Sixth Amendment Agreements dated 2 June 2008, 28 May, 2009 2 June, 2010, and 9
June 2010 respectively (as so amended and novated and in effect on the date hereof, 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 Sixth 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: |
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Trade Date:
|
3 June, 2011 | |
Effective Date:
|
6 June, 2011 | |
Termination Date:
|
The final Cash Settlement Payment Date |
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Shares:
|
VimpelCom LTD-SPON ADR ISIN: US92719A1060 (Sedol No. B62HR76) |
|
Exchange:
|
New York Stock Exchange | |
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:
|
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, the Relevant Price on 1 June, 2011 | |
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 Counterparty whether ING elects, in its sole | ||
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| 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. |
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| 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. | ||
| If the parties fail to agree the Final Price as |
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| 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: |
US 1 month LIBOR as published on Bloomberg page BBAM on 2 June, 2011 (exclusive of spread) | |
Floating Rate Day Count Fraction: |
Actual/360 | |
Reset Dates:
|
The first day of each Calculation Period. | |
Business Days:
|
New York, London and Oslo | |
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Settlement Terms: |
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Cash Settlement:
|
Applicable | |
Settlement Currency:
|
USD | |
Cash Settlement Payment Date:
|
6 July 2011; 8 August 2011; 6 September 2011; 6 October 2011; 7 November 2011; 6 December 2011; 6 January 2012; 6 February 2012; 6 March 2012; 12 April 2012; 7 May 2012; 6 June 2012 | |
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 when the Issuer has not previously declared or paid dividends on such Shares for the four |
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| 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: |
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Method of Adjustment : |
Calculation Agent Adjustment | |||||
Extraordinary Events: |
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Consequences of Merger Events: |
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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: |
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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: |
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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: |
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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 | |||||
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| will determine the amounts that would be payable pursuant to the terms of this Transaction accordingly. | ||||||
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
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: | |
| Redacted | ||
| Payments to Counterparty: | ||
| Redacted |
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,
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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.
5. Governing Law.
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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the respective dates specified
below.
Party
ING BANK, N.V., LONDON BRANCH
By:
|
/s/ Xxxxxxx Xxxx | By: | /s/ Xxxx Xxxxx | |||||||||
| Name: | Xxxxxxx Xxxx | Name: | Xxxx Xxxxx | |||||||||
| Title: | Authorised Signatory | Title: | Managing Director | |||||||||
| Date: 1 June 2011 | Date: 1 June 2011 | |||||||||||
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Party
TELENOR EAST INVEST AS
| By: | /s/ Pal Stette | |||
| Name: | Pal Stette | |||
| Title: Attorney-in-fact Date: 1 June 2011 |
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