(1)
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Stichting Administratiekantoor Mobile Telecommunications Investor, a foundation (stichting) incorporated under the laws of the Netherlands, registered with the Dutch trade register under registration number 65286936, with its registered address at Herikerbergweg 238, Luna ArenA, 1101 CM Amsterdam (the “Foundation”); and
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(2)
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L1T VIP Holdings S.à r.l., a société à responsibilité limitée incorporated under the laws of Luxembourg, registered with the Luxembourg Chamber of Commerce (Registre de commerce et des sociétés) under registration number B200215, with its registered address at 1-3 Boulevard de la Foire, L-1528, Luxembourg (“L1T”),
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(A)
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L1T wishes to transfer the VimpelCom ADSs (as defined below) to the Foundation.
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(B)
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The Foundation has agreed to acquire the VimpelCom ADSs against issuance of Depositary Receipts (as defined below) and to administer the VimpelCom ADSs pursuant to and in accordance with the Constitutional Documents (each as defined below).
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(C)
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This Deed governs the contractual aspects relating to, title to, and the transfer of the VimpelCom ADSs, and the transfer of the legal and beneficial ownership of the VimpelCom ADSs shall be effected pursuant to this Deed.
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(D)
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In furtherance of the above, the Parties also wish to set forth in this Deed the terms and conditions of the support that L1T will provide to the Foundation in an effort to procure the proper continued operation of the Foundation and certain continuing obligations of the Foundation and L1T in respect of the VimpelCom ADSs.
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1.
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Interpretation
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“Articles of Association”
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shall mean the articles of association (statuten) of the Foundation, as may be amended from time to time;
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“Board Member”
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shall mean a member of the board of the Foundation;
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“Bye-laws” | shall mean the bye-laws of VimpelCom (as may be amended from time to time); | |
“Conditions of Administration”
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shall mean the terms and conditions (administratievoorwaarden) under which the Foundation shall administer the VimpelCom ADSs, in the form attached hereto as Annex A and as amended from time to time;
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“Constitutional Documents”
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shall mean the Articles of Association and the Conditions of Administration;
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“DCC”
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shall mean the Dutch Civil Code (Burgerlijk Wetboek);
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“Deed”
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shall have the meaning ascribed to such term in the heading hereof;
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“Deposit Agreement”
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shall mean the Deposit Agreement dated as of March 26, 2010 among VimpelCom, The Bank of New York Mellon (and any successor as depositary under the Deposit Agreement), and all owners and holders from time to time of the VimpelCom ADSs issued thereunder, as amended from time to time;
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“Depositary Receipt”
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shall mean the registered right in the name of the DR Holder vis-à-vis the Foundation with respect to any VimpelCom ADS held by the Foundation;
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“DR Holder”
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shall mean the holder of the Depositary Receipts; | |
“MTO”
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shall mean mandatory offer pursuant to section 16.1 of the Bye-Laws;
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“Person”
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shall mean any individual, corporation, company, firm, partnership, joint venture, association, trust, unincorporated organisation or other entity;
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“Section”
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shall mean any section of this Deed;
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“Taxes”
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shall mean all taxes, including, without limitation, corporate income tax, wage withholding tax, value added tax, customs and excise duties, capital tax and other legal transaction taxes, dividend withholding tax, (municipal) real estate taxes, other municipal taxes and duties, environmental taxes and duties, levied or imposed in the applicable jurisdiction at the national, autonomous community or local level as well as any contribution to any social security or employee or union social security scheme and any other payroll taxes, including fines, penalties, interest and surcharges;
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“Transfer”
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shall mean with respect to any securities, rights, obligations or assets (including, for the avoidance of doubt, the VimpelCom ADSs and the Depositary Receipts), directly, in any manner whatsoever, in one transaction or a series of transactions (including, without limitation, by way of agreement, extraordinary dividend, liquidation, legal merger, legal division, plan, scheme of arrangement or otherwise), selling, transferring, granting options or rights over, granting any pledge, right of usufruct, mortgage or other security interest on or otherwise encumbering, disposing of, distributing, delegating, or in any other way transferring any such securities, rights, obligations or assets or any direct interest or right therein or thereon, including, without limitation, by means of one or more derivative transactions;
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“Transfer Request Form”
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shall mean a Transfer of the VimpelCom ADSs, in the form attached hereto as Annex B, executed by L1T in favor of the Foundation;
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“VimpelCom”
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shall mean VimpelCom Ltd., a public limited company incorporated under the laws of Bermuda, registered with the Dutch trade register under registration number 34374835, with its registered address at Claude Debussylaan 88, 1082 MD Amsterdam, the Netherlands;
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“VimpelCom ADSs”
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shall mean the one hundred and forty five million, nine hundred and forty seven thousand, five hundred and sixty two (145,947,562) American Depositary Shares, created under the Deposit Agreement and representing rights with respect to the VimpelCom Shares; and
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“VimpelCom Shares”
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shall mean one hundred and forty five million, nine hundred and forty seven thousand, five hundred
and sixty two (145,947,562) issued and allotted common shares in the capital of VimpelCom.
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(a)
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a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted;
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(b)
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headings to Sections and Annexes are for convenience only and do not affect the interpretation of this Deed;
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(c)
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the Annexes and any attachments form part of this Deed and shall have the same force and effect as if expressly set out in the body of this Deed, and any reference to this Deed shall include the Annexes;
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(d)
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nouns, pronouns and verbs of singular number shall be deemed to include the plural, and vice versa, and pronouns of the masculine gender shall be deemed to include the feminine and neuter, and vice versa;
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(e)
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the words “include”, “includes”, and “including” shall be deemed to be followed by the phrase “without limitation”; and
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(f)
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the words “hereof”, “herein” and similar words shall be construed as references to this Deed as a whole and not limited to the particular Section or Annex in which the reference appears.
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2.
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Transfer of the VimpelCom ADSs Against Issuance of the Depositary Receipts
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3.
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Warranties by L1T
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(a)
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L1T holds unlimited and unconditional title to the VimpelCom ADSs, and its rights with respect to the VimpelCom ADSs are not subject to reduction, rescission, rights of pre-emption or any type of nullification;
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(b)
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the VimpelCom ADSs are free of any liens or attachments or other encumbrance, and there is no, with respect to each VimpelCom ADS, option, preferential right, or other right pursuant to which any Person is entitled to demand Transfer of such VimpelCom ADS;
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(c)
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L1T is duly authorized to perform its obligations under this Deed and to Transfer legal and beneficial title in the VimpelCom ADSs, and this Deed constitutes binding obligations of L1T in accordance with its terms; and
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(d)
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no depositary receipts (certificaten van aandelen) or similar rights have been issued with respect to the VimpelCom ADSs, and no third party has any other type of beneficial interest in one or more of the VimpelCom ADSs.
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4.
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Warranty by the Foundation
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5.
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Funding
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(a)
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sell all or part of the VimpelCom ADSs in an orderly fashion on the open market; and
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(b)
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set off (verrekenen) any payment obligation it has to L1T or a subsequent DR Holder,
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6.
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Notices
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7.
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No Rescission
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8.
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Amendments
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9.
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No Assignment
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10.
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Enforceability
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11.
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No Third-Party Rights
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12.
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Interpretation
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13.
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Entire Agreement
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14.
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Governing Law
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15.
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Submission to Jurisdiction
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Signed by Maxime Nino
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)
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for and on behalf of
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)
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L1T VIP Holdings S.à r.l.
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)
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/s/ Maxime Nino
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Manager
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Signed by C. H. Teschmacher
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)
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for and on behalf of
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)
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Stichting Administratiekantoor Mobile
Telecommunications Investor
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)
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/s/ C. H. Teschmacher
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Chairman
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Signed by M.W. Josephus Jitta
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)
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for and on behalf of
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)
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Stichting Administratiekantoor Mobile
Telecommunications Investor
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)
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/s/ M.W. Josephus Jitta
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Secretary
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DEED OF DETERMINING THE CONDITIONS
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IJS/6010735/11027781
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OF ADMINISTRATION OF
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15-03-2016
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STICHTING ADMINISTRATIEKANTOOR MOBILE
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15
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TELECOMMUNICATIONS INVESTOR
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1.
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DEFINITIONS
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1.1.
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In these Conditions of Administration (as defined below), the following definitions will apply:
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1.2.
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The definitions set out in clause 1.1 apply to both the singular and plural of the concepts defined. All references to ''clauses" will be deemed to make a reference to clauses in these Conditions of Administration, unless indicated otherwise or appearing otherwise from the context.
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1.3.
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The provisions of these Conditions of Administration shall apply to each and all outstanding Depositary Receipts.
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2.
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DEPOSITARY RECEIPTS
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2.1.
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The Foundation may only acquire Foundation ADSs against the issuance of Depositary Receipts.
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2.2.
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The Foundation shall issue one Depositary Receipt for every Foundation ADS it acquires, numbered in the same manner as the Foundation ADS against which the Depositary Receipt is issued. The nominal value of the Depositary Receipts shall be equal to the nominal value of the Foundation ADSs for which they are issued. The Foundation may only acquire fully paid up Foundation ADSs.
If the Foundation ADSs are not numbered, the Foundation is authorised to provide each Foundation ADS with a number for registration purposes in the register of the DR Holder.
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2.3.
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By acquiring the Depositary Receipts the DR Holder accepts the Conditions of Administration and shall be bound thereto.
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2.4.
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The Depositary Receipts shall be issued in registered form. No certificates (certificaatbewijzen) shall be issued for the Depositary Receipts.
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2.5.
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No DR Holder shall have a statutory right of pledge on the Foundation ADSs as referred to in Article 3:259 of the DCC.
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3.
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REGISTER OF THE DR HOLDER
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3.1.
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The Board shall keep a register in which the name, bank account number and address of the DR Holder shall be recorded, specifying from time to time the number of Depositary Receipts to which the DR Holder is entitled, and the date on which it acquired the Depositary Receipts.
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3.2.
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The register of the DR Holder shall be kept regularly updated. The registrations in and copies of and extracts from the register of the DR Holder can be signed by each Board Member.
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3.3.
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The DR Holder shall provide the Foundation with its address and bank account number and is obliged to keep the Foundation informed of any changes thereto.
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3.4.
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The Board will, at the DR Holder's request, provide the DR Holder with an extract of the registration in the register of the DR Holder with respect to its Depositary Receipts.
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3.5.
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All convocations and announcements to the DR Holder shall be made in writing to its address as recorded in the register of the DR Holder.
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3.6.
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If the DR Holder has also provided the Foundation with its electronic address, requesting to include such address in the register of the DR Holder together with the other information referred to in clause 3.1, that electronic address is deemed to be provided for it to be used to receive all announcements, notifications and notices electronically.
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4.
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TRANSFER OF DEPOSITARY RECEIPTS
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4.1.
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The Depositary Receipts may be Transferred freely, provided that the DR Holder Transfers no less than all Depositary Receipts at the same time in one transaction and provided that prior to such transaction the DR Holder and the transferee of the Depositary Receipts shall discharge all Board Members from any and all liability.
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4.2.
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In the event of a Transfer of the Depositary Receipts in accordance with clause 4.1, the DR Holder shall impose all its obligations with respect to Depositary Receipts on the transferee of the Depositary Receipts, including, for the avoidance of doubt, any obligations of the DR Holder under the deed of transfer pursuant to which the DR Holder acquired the Depositary Receipts.
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4.3.
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The Transfer of the Depositary Receipts in accordance with clause 4.1 requires a private deed to that effect and a notification to the Foundation.
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5.
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LIMITED RIGHTS ON DEPOSITARY RECEIPTS
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The Depositary Receipts may not be encumbered with a right of pledge or a right of usufruct. |
6.
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DISTRIBUTIONS
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6.1.
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All payments on the Foundation ADSs shall accrue to the DR Holder, with due observance of the provisions of this clause 6.
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6.2.
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The Foundation shall immediately collect all dividends and other distributions on the Foundation ADSs, whether in cash or in kind. Upon receipt thereof, after deduction of costs and Taxes, it shall forthwith make payable a corresponding dividend or distribution to the DR Holder to the bank account numbers recorded in the register of the DR Holder.
For American Depositary Shares that the Foundation acquires as bonus shares, by way of stock dividend or otherwise, a corresponding amount of Depositary Receipts shall be issued to the DR Holder, and such American Depositary Shares shall remain with the Foundation in Administration. Any distributions by way of an additional payment on the American Depositary Shares (bijschrijving) shall be made accordingly by way of an additional payment on the Depositary Receipts.
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6.3.
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The DR Holder shall be notified in writing that a distribution shall be made payable, under specification of the manner in which it can collect the distribution.
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6.4.
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All distributions made to the DR Holder are subject to the condition that if and to the extent the Foundation is held to refund the amount or the value of the distribution, or a part thereof, to the Company, a corresponding obligation shall exist for the DR Holder vis-à-vis the Foundation in the same form and for the same amount, with a maximum of the amount or value as received by the DR Holder.
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6.5.
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In the event that the Company makes a distribution on Shares in cash or in kind at the election of the holder of the Shares, the Foundation may elect to have the distribution made in the manner that the Board determines in its sole discretion, and the Foundation shall make a corresponding distribution to the DR Holder, subject to clause 6.2.
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6.6.
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Any final distribution paid on the Foundation ADSs in the event of a voluntary or mandatory winding-up and dissolution of the Company shall be distributed by the Foundation to the DR Holder subject to any rights of the Foundation under the deed of transfer pursuant to which the Foundation acquired the Foundation ADSs immediately in exchange for cancellation of the Depositary Receipts. The Foundation may in its discretion make provisional distributions as an advance payment on any final distribution made pursuant to this clause 6.6.
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7.
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EXERCISE OF SHAREHOLDER RIGHTS
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8.
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DURATION AND TERMINATION OF ADMINISTRATION
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8.1.
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Subject to the Administration being terminated early pursuant to clause 8.3, the Administration of the Foundation ADSs shall continue for a full Administration Period and such additional time as is necessary to dispose of any Foundation ADSs as provided in clause 8.2. In the period from one hundred and eighty (180) days to ninety (90) days prior to the end of any Administration Period, the DR Holder shall be entitled, by written notice to the Foundation, to require that the Administration of Foundation ADSs continue for another Administration Period. The DR Holder shall not be entitled to terminate the Administration of the Foundation ADSs.
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8.2.
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Upon the end of the Administration Period or early termination of the Administration pursuant to clause 8.3, if the Foundation holds any Foundation ADSs, the Foundation, as soon as practicably possible, shall dispose of the Foundation ADSs.
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8.3.
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The Board shall terminate the Administration of the Foundation ADSs upon the occurrence of any of the events in this clause 8.3(a) and 8.3(b) (each, a "Termination Event"), the occurrence of which shall be determined by the Board, in its sole discretion, by way of a unanimous resolution:
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(a)
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the Foundation no longer holds any Foundation ADSs; or
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(b)
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the Foundation is required by a binding, final and non-appealable judgement of a competent court to launch an MTO.
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8.4.
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When the Administration of the Foundation ADSs is terminated, upon the end of the Administration Period or early termination of the Administration pursuant to clause 8.3, the Foundation shall immediately distribute to the DR Holder, and the DR Holder (in exchange for cancellation of the Depositary Receipts issued for the Foundation ADSs) shall accept, such cash amount as is then held by the Foundation subsequent to its disposal of the Foundation ADSs.
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8.5.
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Any assets remaining following the termination of the Administration and the dissolution and liquidation of the Foundation shall be distributed to the DR Holder under the obligation of the DR Holder to accept and assume any and all remaining liabilities of the Foundation.
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9.
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AMENDMENT OF THE CONDITIONS OF ADMINISTRATION
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9.1.
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The Board, acting by unanimous consent of all members in office and there being no vacancies on the Board, may resolve to amend the Conditions of Administration with due observance of the provision of the Articles of Association; provided, however, that a resolution to amend the Conditions of Administration is subject to the prior approval of the DR Holder.
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9.2.
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The DR Holder cannot unilaterally amend or instruct the Board to amend the Conditions of Administration.
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10.
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APPLICABLE LAW
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10.1.
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The entire relationship between the Foundation and the DR Holder, as set out in the Articles of Association, this deed and any and all other agreements and documents related to the Administration of the Foundation ADSs, and the enforcement of any of these documents shall be governed by Dutch law without regard to any conflict of law-rules under Netherlands private international law.
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10.2.
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All disputes arising out of or in connection with this deed and the Administration of the Foundation ADSs shall in the first instance be submitted to the court of first instance (rechtbank) in Amsterdam, the Netherlands and shall not be submitted to any other court, without prejudice to the right of appeal (hoger beroep) and cassation (cassatie).
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Issued FOR CERTIFIED COPY by me, Tambina Jannie Geuze-Draaijer, prospective civil-law notary, acting as legal substitute for Paul Hubertus Nicolaas Quist, civil-law notary in Amsterdam.
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Amsterdam, 15 March 2016.
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/s/ Tambina Jannie Geuze-Draaijer
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