As filed with the Securities and Exchange Commission on August 14, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
V IMPEL C OM L TD .
(Exact name of registrant as specified in its charter)
| Bermuda | Not Applicable | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
VimpelCom Ltd.
Claude Debussylaan 88
1082 MD Amsterdam
The Netherlands
+31 20 79 77 200
(Address, including zip code, and telephone number, including area code of registrant’s principal executive offices)
VimpelCom Ltd. Director Investment Plan
(Full title of the plan)
CT Corporation System
111 Eighth Avenue, 13th Floor
New York, NY 10011
+1 (212) 894 8400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Daniel G. Walsh, Esq.
Akin Gump LLP
Eighth Floor
Ten Bishops Square
London, England E1 6EG
Telephone: +44 20 7012 9600
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of securities to be registered |
Amount to be registered (1)(2) |
Proposed maximum offering price per share (3) |
Proposed maximum aggregate offering price (3) |
Amount of registration fee |
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Common Shares ($0.001 par value) |
1,000,000 | $9.01 | $9,010,000 | $1,032.55 | ||||
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| (1) | This registration statement registers common shares, par value $0.001 per share, in the capital of VimpelCom Ltd. (the “Common Shares”), that may be offered and sold under the VimpelCom Ltd. Director Investment Plan (the “Plan”). The Common Shares that may be offered and sold under the Plan in connection with this registration statement have previously been acquired in open market purchases. |
| (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there is also being registered such indeterminate number of Common Shares which may become issuable as a result of a stock split, stock dividend or similar transaction effected without the receipt of consideration which results in an increase in the number of Common Shares outstanding. |
| (3) | Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) and 457(h) under the Securities Act. The above calculation is based on the average of the high and low prices of the American depositary shares of VimpelCom Ltd. evidenced by American depositary receipts, each representing one Common Share, as reported on the New York Stock Exchange on August 8, 2012, which was $9.01. |
Unless we state otherwise or the context indicates otherwise, all references in this registration statement to “Company,” “Registrant,” “we,” “us,” and “our” or similar terms refer to VimpelCom Ltd.
EXPLANATORY NOTE
We are filing this registration statement on Form S-8 relating to 1,000,000 of our Common Shares issuable pursuant to the VimpelCom Ltd. Director Investment Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to “incorporate by reference” into this registration statement certain information we file with it. The information we incorporate by reference is part of this registration statement, and later information we file with the SEC will automatically update and supersede this information. The following documents filed with the SEC are incorporated by reference in this registration statement:
| • |
the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed with the SEC on April 30, 2012; and |
| • |
the description of the securities to be registered as set forth in the section entitled “ Share Capital, Corporate Governance and Shareholders Rights ” in the Registrant’s Registration Statement on Form F-4 (File No. 333-164770), filed with the SEC on February 8, 2010, as amended from time to time. |
Certain of the Registrant’s Reports on Form 6-K (to the extent designated therein), and all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this registration statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to our restated bye-laws and indemnification agreements that we have entered into or intend to enter into with all of our directors and officers, we will indemnify and hold harmless our directors and officers from and against all actions, costs, charges, liabilities, losses, damages and expenses in connection with any act done, concurred in or omitted in the execution of our business, or their duty, or supposed duty, or in their respective offices or trusts, to the extent authorized by law. We may also advance moneys to our directors and officers for costs, charges and expenses incurred by any of them in defending any civil or criminal proceedings. The foregoing indemnities will not apply (and any funds advanced will be required to be repaid) with respect to a director or officer if any allegation of fraud or dishonesty is proved against such director or officer.
Additionally, we have obtained insurance on behalf of our directors and officers for liability arising out of their actions in their capacity as directors and officers.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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Exhibit No. |
Description |
|
| 4.1 | Form of Deposit Agreement (common shares) between VimpelCom Ltd. and The Bank of New York Mellon, as depositary (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form F-4 of VimpelCom Ltd., filed February 8, 2010). | |
| 4.2 | Bye-laws of VimpelCom Ltd. adopted on April 20, 2010 (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-8 of VimpelCom Ltd., filed April 27, 2010). | |
| 4.3 | VimpelCom Ltd. Director Investment Plan. | |
| 5.1 | The shares of Common Stock to be offered and sold under the Plan in connection with this registration statement have been purchased in open market transactions. Because no original issuance securities will be offered or sold pursuant to the Plan, no opinion of counsel regarding the legality of the securities being registered hereunder is required. | |
| 23.1 | Consent of Ernst & Young Accountants LLP, as auditors of the financial statements of VimpelCom Ltd. | |
| 23.2 | Consent of Ernst & Young LLC, as auditors of the financial statements of Open Joint Stock Company “Vimpel-Communications”. | |
| 24.1 | Power of Attorney (included on signature page). | |
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Amsterdam, the Netherlands, on August 14, 2012.
| VimpelCom Ltd. | ||
| By: | /s/ JO LUNDER | |
| Name: Jo Lunder | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Jo Lunder the true and lawful attorney-in-fact and agent of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agents full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title | Date | ||
|
/s/ JO LUNDER (Jo Lunder) |
Chief Executive Officer
(principal executive officer) |
August 14, 2012 | ||
|
/s/ CORNELIS HENDRIK VAN DALEN (Cornelis Hendrik Van Dalen) |
Chief Financial Officer
(principal financial officer) |
August 14, 2012 | ||
|
/s/ COLIN DELAHAY (Colin Delahay) |
Group Director of Accounting, Reporting & Control (principal accounting officer) |
August 14, 2012 | ||
|
/s/ AUGIE K. FABELA II (Augie K. Fabela II) |
Chairman of the Board | August 14, 2012 | ||
|
/s/ MIKHAIL FRIDMAN (Mikhail Fridman) |
Director | August 14, 2012 | ||
| Signature | Title | Date | ||
|
/s/ KJELL MORTEN JOHNSEN (Kjell Morten Johnsen) |
Director | August 14, 2012 | ||
|
/s/ DR. HANS PETER KOHLHAMMER (Dr. Hans Peter Kohlhammer) |
Director | August 14, 2012 | ||
|
/s/ LEONID R. NOVOSELSKY (Leonid R. Novoselsky) |
Director | August 14, 2012 | ||
|
/s/ ALEXEY M. REZNIKOVICH (Alexey M. Reznikovich) |
Director | August 14, 2012 | ||
|
/s/ OLE BJØRN SJULSTAD (Ole Bjørn Sjulstad) |
Director | August 14, 2012 | ||
| Puglisi & Associates |
Authorized Representative in the United States |
August 14, 2012 | ||
| By: /s/ DONALD J. PUGLISI | ||||
| Donald J. Puglisi, Managing Director |
Exhibit 4.3
VimpelCom Ltd. Director Investment Plan
Rule 1 Definitions
In the Rules of this Plan, except where inconsistent with the subject or context, the words and expressions shall have the following meanings as set out below:
| Award | The award of a Matching Option to acquire Matching Shares under the Rules of this Plan; | |
| Bye-laws | The VimpelCom Ltd. Bye-laws adopted on 20 April 2010, as may be amended from time to time; | |
| Cause | Either Participant’s (i) intentional failure to perform duties, (ii) dishonesty, gross negligence or willful misconduct in the performance of duties, (iii) involvement in a transaction in connection with the performance of duties to the Company or any of its affiliates which transaction is adverse to the interests of the Company or any of its affiliates and which is engaged in for personal profit, (iv) willful violation of any law, rule, or regulation in connection with the performance of duties (other than traffic violations or similar offenses) or (v) breach of any Group Company policy applicable to the Participant (including, without limitation, the Insider Trading Rules and any code of ethics or business conduct policies), in each case only if determined by the Supervisory Board in its sole and absolute discretion; | |
| Company | VimpelCom Ltd., an exempted company formed under the laws of Bermuda having its principal executive offices as of the Effective Date at Claude Debussylaan 88, 1082 MD Amsterdam, the Netherlands, and registered with the Dutch Chamber of Commerce under registration number 34374835; | |
| Director | A director of the Company as defined in the Bye-laws; | |
| Effective Date | The date as from which this Plan is effective, being August 14, 2012; | |
| Exchange | The New York Stock Exchange or such other internationally recognized exchange or market quotation system on which the Shares are then traded; | |
| Exercise Price | The price per Share payable for the Matching Shares upon the exercise of a Matching Option (which price shall not be less than the par value of a Share); | |
| Good Standing | The Participant has not engaged in (whether by action or omission) any behavior that constitutes or could reasonably be expected or deemed to constitute Cause; | |
| Group | The Company and its Subsidiaries (as defined in the Bye-laws) from time to time; | |
| Group Company | Any of the Company or its Subsidiaries (as defined in the Bye-laws) from time to time; | |
| Insider Trading Rules | The VimpelCom Ltd. Corporate Policy and Procedure on Insider Trading, as may be amended from time to time; | |
| Investment Amount | The amount that the Participant chooses to invest in accordance with the Participation Agreement; | |
| Investment Share Price | The price per Share set forth in the Participation Agreement at which the Participant will purchase the Investment Shares; | |
| Investment Shares | The Shares purchased under the Rules of this Plan and the Participation Agreement, such number of Shares equal to the Investment Amount divided by the Investment Share Price, with the result rounded down or up to the nearest whole number per the standard rounding rules (i.e., 0.4 will be rounded down and 0.5 will be rounded up); | |
| Matching Award Value | The Investment Amount multiplied by a multiplier to be determined by the Supervisory Board upon meeting the Performance Conditions at the end of the Performance Period as set out under the Participation Agreement and the Rules of the Plan. In any event, the multiplier used to determine the Matching Award Value will not exceed 5; | |
| Matching Option | An option granted by the Company to acquire Matching Shares in accordance with the Plan and the Matching Option Agreement; provided, however , that under no circumstances will an “option” be a security as defined under Russian law; | |
| Matching Option Agreement | The written agreement between the Company (or any Group Company) and the Participant evidencing the grant of a Matching Option and setting forth the terms and conditions thereof in accordance with the terms of the relevant Offer and the Rules of this Plan; | |
| Matching Share Amount | The Matching Award Value divided by the Matching Share Price, with the result rounded down or up to the nearest whole number per the standard rounding rules (i.e., 0.4 will be rounded down and 0.5 will be rounded up); | |
| Matching Share Price | The price per Share which shall be used to determine the number of Matching Shares to be issued upon exercise of a Matching Option, such price per Share to be calculated in accordance with the terms of the Participation Agreement and Matching Option Agreement; | |
| Matching Shares | The Shares that can be acquired by the Participant by exercising the Matching Option granted under the Rules of this Plan; | |
| Offer | An invitation to participate in the Plan; | |
| Participant | A Director to whom an Offer has been made and who has accepted such Offer by signing and returning the Participation Agreement in accordance with the Rules of this Plan; | |
| Participation Agreement | The agreement which contains the Offer to a Participant to participate in the Plan on the terms set forth therein and allowing the Participant to accept such Offer on the terms set forth therein by indicating the Participant’s Investment Amount; | |
| Performance Conditions | The performance target(s) set by the Supervisory Board that must be attained in order for the Matching Options to Vest and to determine the Matching Award Value. The Performance Conditions will be defined in respect of each Award in the Participation Agreement; | |
| Performance Period | The period over which the Performance Conditions attached to the Offer are measured. The Performance Period will be defined in the Participation Agreement; | |
| Plan | The VimpelCom Ltd. Director Investment Plan in its present form or as from time to time amended in accordance with the provisions hereof; | |
| Release | The issuance or transfer of Shares by the Company pursuant to this Plan whereby “Release”, “Released” and “Release Date” shall be construed and interpreted accordingly; | |
| Rules | The Rules governing the operation of the Plan as may be amended from time to time; | |
| SPA | The written agreement or instrument setting forth the terms and conditions of the sale and purchase of the Investment Shares; | |
| Shares | Common shares of par value USD$0.001 each (or such other par value as may result from any reorganization of capital) in the capital of the Company, having the rights and restrictions set out in the Bye-laws, including American Depositary Receipt(s) evidencing American Depositary Share(s); | |
| Supervisory Board | The Supervisory Board of the Company as defined in the Bye-laws; | |
| Transfer | The meaning ascribed to this term in Rule 6.4; | |
| Vesting | The satisfaction of the conditions to the exercise of the Matching Option as set forth in the Participation Agreement, the Matching Option Agreement and the Rules of this Plan, and “Vested” and “Vest” shall be construed accordingly; and | |
| Vesting Date | The date on which the Matching Option shall become exercisable, as specified in the relevant Participation Agreement, subject to satisfaction of the Performance Conditions and the Rules of this Plan. | |
Rule 2 Interpretation
Words or expressions used in the Plan shall where appropriate:
| (i) | when denoting the masculine gender include the feminine and vice versa; |
| (ii) | when denoting the singular include the plural and vice versa; |
| (iii) | when referring to any enactment be construed as a reference to that enactment as for the time being consolidated, amended, re-enacted or replaced and shall include any regulations made thereunder; |
| (iv) | when referring to the Rules be taken to refer to the Rules of this Plan; |
| (v) | when a period of time is specified and starts from a given day or the day of an act or event, be calculated inclusive of that day; |
| (vi) | be construed such that the headings and sub-headings are for ease of reference only, and do not affect the interpretation of any Rule; and |
| (vii) | references to tax and/or social security contributions and/or withholding taxes shall for the avoidance of doubt include the Netherlands and any other jurisdiction to which a Participant may be subject. |
Rule 3 Availability of Shares
The Company shall ensure that sufficient Shares are available at the time of Vesting of the Matching Options.
Rule 4 Powers of the Supervisory Board
| 4.1 | The Plan shall be administered by the Supervisory Board. The Supervisory Board shall have such powers and authority delegated to it as set out in the Plan. |
| 4.2 | The Supervisory Board shall have the authority and the absolute and sole discretion to: |
| (i) | select Directors as Participants; |
| (ii) | construe and interpret the provisions of the Plan, any Participation Agreement and any other agreement or document executed pursuant to the Plan; |
| (iii) | determine the terms and conditions of any Offer or Award; |
| (iv) | interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan, Participation Agreement, Matching Option Agreement and any other instrument or agreement relating to, or Award granted under, the Plan; |
| (v) | establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Supervisory Board shall deem appropriate for the proper administration of the Plan; |
| (vi) | accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards or Matching Options; and |
| (vii) | make any other determination and take any other action that the Supervisory Board deems necessary or desirable for the administration of the Plan. |
| 4.3 | The Supervisory Board’s interpretation and construction of any provision of the Plan, of any Offers or Awards effectuated under the Plan or of any Participation Agreement or Matching Option Agreement shall be final and binding on all Participants claiming an interest in an Award effected under the Plan. No member of the Supervisory Board of the Company or any employee or agent of the Company shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect to the Plan or any Award hereunder. |
Rule 5 Offer
| 5.1 | The Supervisory Board may decide to make an Offer to Directors in accordance with the Rules of this Plan. |
| 5.2 | Offers shall be made annually and at any other time at the discretion of the Supervisory Board and are subject to the Insider Trading Rules and applicable mandatory provisions regarding insider trading. |
| 5.3 | Offers made to a Participant in a certain year shall not be construed to give that Participant the right to future Offers. |
| 5.4 | If, after receipt of an Offer, a Participant wishes to participate in the Plan, then as a condition to the grant of an Award, he is required to return a signed copy of the Participation Agreement to the Company in the manner and by the date specified in the Offer (as described in the Participation Agreement). If the Company has not received a signed copy of the Participation Agreement by the date specified in the Offer, the Offer shall lapse and shall be void ab initio . |
| 5.5 | Where under any of the provisions of these Rules it is provided that an Offer shall lapse, that lapsed Offer shall cease to confer any rights whatsoever on the Participant notwithstanding any other provisions of these Rules. |
Rule 6 Investment Shares
| 6.1 | The Participation Agreement shall specify, inter alia, the manner in which the Investment Share Price, the Matching Share Price and the Matching Award Value shall be determined, the Performance Conditions and the Vesting Date. |
| 6.2 | Following the Participant’s execution of the Participation Agreement, the Company (or any Group Company) and the Participant will enter into and perform their respective obligations under the SPA. No rights to the Investment Shares shall accrue to the Participant prior to the date of their delivery in accordance with the terms of the SPA. |
| 6.3 | The Participant shall not be entitled to any compensation of damages insofar as such damages arise or may arise from a delayed delivery of Shares in accordance with the SPA, and no rights shall accrue to the Participant in respect of the Investment Shares until the date of their delivery in accordance with Rule 6.2 above. The Participant shall not be permitted to designate the time for such delivery of the Investment Shares. |
| 6.4 | The sale, assignment, alienation, charge, pledge, or other transfer (other than by will or by the laws of descent and distribution) or encumbrance (each, a “ Transfer ”) of any of the Investment Shares by the Participant prior to the Vesting Date will cause the corresponding Matching Option to lapse and be void ab initio . |
Rule 7 Award of Matching Option to Acquire Matching Shares
| 7.1 | The Exercise Price for the Matching Option shall be specified in the Participation Agreement and the Matching Option Agreement. |
| 7.2 | The Matching Option shall Vest and become exercisable on the Vesting Date, subject to satisfaction of the Performance Conditions and any other conditions set forth in the Participation Agreement, the Matching Option Agreement and the Rules of this Plan, as applicable. The calculation of the Matching Award Value and the Matching Share Amount in relation to a Matching Option will be determined in accordance with the Participation Agreement, the Matching Option Agreement and the Rules of this Plan. |
| 7.3 | The Supervisory Board, when making an Award, may in its absolute and sole discretion impose Performance Conditions, being conditions and limitations (additional to any conditions and limitations contained in any other of these Rules) which must be satisfied prior to the Vesting of the Matching Option in relation to such Award, provided that such additional conditions and limitations shall: |
| (i) | be objective and specified in detail in the Participation Agreement; |
| (ii) | be such that the Vesting of the Matching Option after the fulfillment or attainment of any conditions and limitations so specified shall not be dependent upon the further discretion of any person, other than the determination by the Supervisory Board that such conditions or limitations have been fulfilled; and |
| (iii) | not be capable of amendment, variation or waiver unless a change in circumstances occurs which causes the Supervisory Board to consider that a waived, varied or amended condition would be a fairer measure of performance and would not be more difficult to satisfy than any existing additional conditions. |
| 7.4 | No consideration shall be payable by a Participant for an Award of Matching Options made in his favor. |
| 7.5 | An Award will Vest on the Vesting Date stated in the Participation Agreement as long as , at the applicable Vesting Date: |
| (i) | any Performance Conditions, as well as any additional conditions and limitations imposed on the Award in accordance with the terms of the Participation Agreement, the Matching Option Agreement or the Rules of this Plan (and which have not been waived) have been fulfilled; and |
| (ii) | the Participant is serving as a Director and is in Good Standing at the Vesting Date, except as set forth in Rule 7.6 below. |
| 7.6 | If a Participant ceases to serve as a Director of the Company and (a) is in Good Standing at the time that he ceases to serve as a Director of the Company and (b) meets all obligations to the Group to which the Participant is subject, including but not limited to any non-competition, non-solicitation, confidentiality, or non-disparagement obligations described and agreed in any agreement with a Group Company through the applicable Vesting Date, then the date on which the Participant ceases to serve as Director of the Company shall be deemed to be the Vesting Date and as soon as reasonably practical thereafter (and in any event within 30 calendar days) the Supervisory Board will determine whether and to what extent any Performance Conditions have been satisfied or waived by reference to the performance of the Company over that part of the Performance Period as has elapsed as of the date the Participant ceases to serve as Director of the Company. |
If the Supervisory Board determines that the Performance Conditions have been satisfied, the number of Matching Shares subject to the Matching Option shall be reduced pro rata so that it reflects only the proportion of the original Performance Period which has elapsed before the deemed Vesting Date. Notwithstanding the foregoing, the Supervisory Board may, at its absolute and sole discretion, determine not to accelerate the Vesting Date and instead to apply to the Participant’s Matching Option on the Vesting Date as set forth in the Participation Agreement subject to satisfaction of the Performance Conditions (and any other conditions set forth the Participation Agreement, the Matching Option Agreement and the Rules of this Plan).
In all cases, if the Supervisory Board determines that the Performance Conditions (and any other conditions set forth in the Participation Agreement, the Matching Option Agreement and the Rules of this Plan) are not satisfied, then the Matching Option will lapse and will not Vest.
| 7.7 | If a Participant ceases to serve as a Director of the Company prior to the Vesting Date in any other circumstances other than those listed in Rule 7.6, the Participant’s right to exercise the Matching Options shall lapse entirely on the date the Participant ceases to serve as a Director. |
| 7.8 | The Supervisory Board shall have the power to allow a Matching Option held by a Participant to Vest at a date prior to the Vesting Date. |
| 7.9 | A Participation Agreement may contain such other provisions as deemed desirable by the Supervisory Board, including without limitation: (i) restrictions on the disposition of any Matching Option granted and/or Matching Shares acquired upon exercise of a Matching Option; (ii) submission by the Participant of such forms and documents as the Supervisory Board may require to effect the Award; and/or (iii) procedures to facilitate the payment of withholding taxes in accordance with Rule 12. |
Rule 8 Shareholder’s Rights
| 8.1 | Subject to Rule 6.4 above, the Investment Shares shall entitle the Participant to all share ownership rights, such as the right to receive dividends, to vote and to dispose of the Shares. The Participant shall not be deemed for any purpose to be the owner of any Matching Shares subject to the Matching Option unless and until (i) the Matching Option shall have been exercised pursuant to the terms thereof in accordance with the Plan, and (ii) the Company or any Group Company shall have delivered title to the Matching Shares in accordance with the Matching Option Agreement. |
| 8.2 | An unvested Matching Option does not entitle the Participant to any rights with respect to the Matching Shares or any share ownership rights, such as the right to receive dividends, to vote and to dispose of the underlying Shares. The Participant may not Transfer an Award, a Matching Option and/or underlying Matching Shares to which he may be entitled upon exercise of a Matching Option in accordance with the Plan, or any rights in respect thereof, in all cases until the Matching Option has Vested and been exercised and the Matching Shares have been delivered in accordance with the Matching Option Agreement; provided that the designation of a beneficiary shall not constitute a Transfer. Any Transfer, whether voluntary or involuntary, in violation of this Rule 8.2 shall cause the Award or Matching Option to immediately lapse and be void ab initio . |
Rule 9 Vesting and Exercise of Stock Options
| 9.1 | As soon as reasonably practicable (and in any event within 30 calendar days) after the Vesting Date, the Supervisory Board will determine whether and to what extent any Performance Conditions have been satisfied or waived, and the Matching Award Value and Matching Share Amount in relation to each Award, and will notify the Participant in writing of their determinations under this Rule 9.1. |
| 9.2 | The Matching Option, once Vested, must be exercised at the time and in the manner as may be set forth in the Participation Agreement, the Matching Option Agreement and/or this Plan, as applicable. |
| 9.3 | The exercise of a Matching Option shall be made only after the Supervisory Board has made the determinations described in Rule 9.1 and provided written notice to the Participant of their determination. Exercise shall be made only by a written notice delivered in person, by mail, by internationally recognized courier service or by facsimile transmission to the Company at its principal executive office or other address provided by the Company, specifying the number of Matching Shares to be purchased pursuant to the exercise of the Matching Option, and in compliance with any other conditions for exercise set forth in the relevant Participation Agreement or Matching Option Agreement. Once the written notice is approved by the Company as being in accordance with the Plan and the Matching Option Agreement, the Exercise Price for any Matching Shares purchased pursuant to the exercise of the Matching Option shall be paid by or on behalf of the Participant via wire transfer (or via any other means approved by the Company). No fractional Shares (or cash in lieu thereof) shall be issued upon exercise of a Matching Option and the number of Shares that may be purchased upon exercise shall be rounded to the nearest number of whole Shares. |
| 9.4 | To the extent any Matching Option has not Vested as of the Vesting Date, or to the extent a Vested Matching Option is not exercised in accordance with the time period (if any) specified in the Participation Agreement, the Matching Option Agreement or the Plan, that Matching Option will lapse. If an Award or Matching Option lapses under the Plan, it cannot Vest and a Participant has no rights in respect of it, nor any right to receive consideration for such lapsed Award or Matching Option. |
Rule 10 Delivery of Matching Shares upon Matching Option Exercise
| 10.1 | The Company (or any Group Company) or any party designated by the Company (or any Group Company) shall deliver the Matching Shares which a Participant is entitled to receive upon exercise of a Matching Option as soon as practicable following the exercise of the Matching Option, but in no event later than the last day of the calendar year in which the Vesting Date and exercise of the Matching Option occur. In no event will the Participant be permitted to designate the time of delivery of the Matching Shares. |
| 10.2 | The Participant shall not be entitled to any compensation of damages insofar as such damages arise or may arise from a delayed delivery of Matching Shares under this Rule 10. |
Rule 11 Loss of employment
| 11.1 | Awards granted under the Plan, and the provisions of the Plan, shall not interfere with or limit in any way the rights of the shareholders of the Company to remove any Director from the Board pursuant to the Bye-laws, nor confer upon any Director any right to continue in the service of the Company or any other Group Company (whether as a Director, employee or other service provider). |
| 11.2 | An Offer made under this Plan shall not be considered a guarantee to the Participant that his service with the Company or with any other Group Company will continue. |
| 11.3 | Any benefits derived by the Participant under this Plan shall not be taken into account for the purposes of determining the Participant’s contribution or entitlement to benefits under any retirement arrangement or for the purposes of determining any other claim for compensation the Participant may have against the Company or against any other Group Company. |
| 11.4 | Where the Participant ceases to serve as a Director of the Company for whatever reason, the Participant shall not be entitled to any compensation or damages including damages for breach of contract, unfair dismissal or any claim for compensation for the loss of employment or position insofar as such compensation or damages arise or may arise from the Participant ceasing to have rights under this Plan as a result of such cessation of service as Director. The Plan shall not at any time affect the rights of the Company or a Group Company to terminate such Participant’s status as a Participant. |
| 11.5 | Except as may be expressly provided in the Participation Agreement or the Offer, an Offer shall neither entitle nor preclude a Participant from participating in another Offer under the Plan or participation in any other plan, program or policy operated by any Group Company. |
Rule 12 Tax and social security
| 12.1 | All applicable wage tax, personal income tax and employee social security premiums, if any, as a result of or in respect of the implementation of the Plan shall be borne by the Participant. Any “employer part” social security premiums as a result or in respect of the implementation of the Plan shall be borne by the Company or any Group Company. |
| 12.2 | It shall be a condition of the obligation of the Company to issue or to procure the delivery of the Shares acquired by the Participant upon exercise of the Matching Option that the Participant shall permit the Company or any Group Company to make such arrangements as it considers necessary to meet any liability to taxation or social security contributions in respect of Investment Shares, Awards or exercises of Matching Options. These arrangements may include the Company or any Group Company withholding directly at source or selling, that number of acquired Matching Shares, equaling in value to any wage or income tax, employee’s social security levies liability and any other liabilities for which the Company or a Group Company as the case may be, has an obligation to withhold and account, or the Participant arranging for discharge of the liability himself, in all cases as the Supervisory Board deems appropriate. Any failure by the Participant to allow the Company to satisfy any such withholding obligation will cause the applicable Award or Matching Option to lapse and be rendered void ab initio . |
| 12.3 | The Plan is based on the applicable tax and social security legislation and regulations prevailing at the Effective Date. If any tax and/or social security legislation or regulations are amended after the Effective Date and any tax or employee social security levies become payable, the costs and risks related thereto shall be borne by the Participant. |
| 12.4 | Except as described in this Rule 12, any tax, employee social security levies or similar liabilities arising from the disposal of Shares shall be the sole responsibility of the Participant. |
| 12.5 | The Company does not guarantee any tax treatment in respect of the Investment Shares, Matching Options and the Matching Shares and the Participant is advised to consult with his or her personal tax advisors regarding participation in the Plan. |
Rule 13 Reporting obligations
The Company shall not, or any party designated by the Company shall not, be entitled to deliver the Shares in accordance with this Plan, until such time as the Company is satisfied that the Company and the Participant are aware of, and will carry out, their reporting obligations in respect of such delivery.
Rule 14 Delisting
If an event occurs as a result of which the Shares are no longer listed on an Exchange, the date on which such event occurs shall be deemed to be the Vesting Date and as soon as reasonably practical thereafter (and in any event within 30 calendar days) the Supervisory Board will determine whether and to what extent any Performance Conditions have been satisfied or waived by reference to the performance of the Company over that part of the Performance Period as has elapsed as of the date on which the Shares cease to be listed on an Exchange. If the Supervisory Board determines that the Performance Conditions have been satisfied, the number of Matching Shares subject to the Matching Option shall be reduced pro rata so that it reflects only the proportion of the original Performance Period which has elapsed before the deemed Vesting Date.
Rule 15 Plan amendments and special provisions
| 15.1 | Subject to the terms and conditions of the Bye-laws, the Supervisory Board may at any time and from time to time at its absolute and sole discretion amend any of the Rules of this Plan and/or the Participation Agreements to, inter alia, take account of a change in legislation or to obtain or maintain a favorable tax, exchange control, legal, accounting or regulatory treatment for Participants and/or the Group. |
| 15.2 | The Plan may be terminated at any time by the Supervisory Board provided such termination does not materially and adversely affect the subsisting rights of the Participant. |
| 15.3 | The Supervisory Board may amend the Plan, establish Rules of this Plan or establish a sub-plan for Participants in a particular jurisdiction, which Plan, Rules and/or sub-plan are designed to conform to the rules of such jurisdiction. |
| 15.4 | If the Shares are altered by way of capitalization or rights issue, change in par value, reclassification, recapitalization, merger, amalgamation, consolidation, reorganization, scheme of arrangement, spin-off, split-up, sub-division, issuance of warrants, rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, asset dividend, bonus issue, combination or exchange of shares, repurchase of shares, change in corporate structure, change in depositary receipt ratio or otherwise, the Supervisory Board shall have the absolute and sole discretion to conclusively determine the appropriate adjustments, if any, to be made to the Performance Conditions, the Plan and any agreement with a Participant under the Plan. Except as expressly determined by the Supervisory Board, no Participant shall be afforded any rights by reason of any capital or corporate reorganization of the Company. |
| 15.5 | A purchase of Investment Shares by a Participant or an Award pursuant to the Plan shall not affect in any way the right or power of the Company or any Group Company to effectuate any capital or corporate reorganization or transaction. |
| 15.6 | The Supervisory Board may amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Participation Agreement, Award granted or any other agreement entered into under this Plan; provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant shall not to that extent be effective without the consent of the affected Participant. |
Rule 16 Notification
Any notice or other document required to be given to any Participant with respect to the operation of this Plan shall be delivered to him at his home address or such other address as may appear to the Company to be appropriate, or by e-mail message or in any other format agreed in advance between the Participant and the person giving the notice on behalf of the Company. Any notice or other document required to be given to the Company shall be delivered in a format agreed in advance between the Participant and the person receiving the notice. Notices sent by post, unless received earlier, shall be deemed to have been given on the fifth day following the date of posting.
Rule 17 Regulations and Other Approvals; Governing Law
| 17.1 | The Plan and the rights of all persons claiming hereunder shall be construed and determined in accordance with the laws of The Netherlands, without giving effect to conflicts of laws principles. |
| 17.2 | The obligation of the Company to deliver Shares in accordance with the Plan shall be subject to all applicable laws, rules and regulations, including all applicable securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Supervisory Board. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Shares pursuant to an Award unless such Shares have been properly registered for sale or unless the Company has received an opinion of counsel, satisfactory to the Company, that such Shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale any of the Shares to be offered or sold under the Plan. The Supervisory Board shall have the authority to provide that all certificates for Shares or other securities of the Company delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Supervisory Board may deem advisable under the Plan, the applicable Award agreement, the applicable securities laws, or the rules, regulations and other requirements of the U.S. Securities and Exchange Commission or other applicable governing body, any Exchange upon which such Shares or other securities are then listed or quoted and any other applicable federal, state, foreign, or local laws, and the Supervisory Board may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. Notwithstanding any provision in the Plan to the contrary, the Supervisory Board reserves the right to make such changes as may be necessary or appropriate to any Participation Agreement or Award granted under the Plan that it in its sole discretion deems necessary or advisable in order to comply with the legal requirements of any governmental entity to whose jurisdiction it is subject or the rules and regulations of any Exchange on which the Shares are listed or traded. |
| 17.3 | The Supervisory Board may make such changes as may be necessary or appropriate to comply with the rules and regulations of any government authority or of any Exchange. |
| 17.4 | Each Award is subject to the requirement that, if at any time the Supervisory Board determines, in its discretion, that the listing, registration, or qualification of Shares issuable pursuant to the Plan is required by any Exchange or under any law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no Award shall be granted, in whole or in part, unless listing, registration, qualification, consent, or approval has been effected or obtained. The Supervisory Board may cancel an Award or any portion thereof if it determines, in its absolute and sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Shares from the public markets, the Company’s issuance of Shares to the Participant, the Participant’s acquisition of Shares from the Company and/or the Participant’s sale of Shares to the public markets, illegal, impracticable or inadvisable. |
| 17.5 | Participants of the Plan shall be subject to and bound by the terms and conditions of the Insider Trading Rules adopted by the Company and/or applicable statutory provisions as regards insider trading. This may restrict the rights of the Participants under the Plan with respect to the timing of the purchase or sale of the Shares. |
Rule 18 Disputes
| 18.1 | The decision of the Supervisory Board in any dispute or question relating to any Participation shall be final and conclusive subject to the terms of this Plan. |
| 18.2 | Except as may be expressly provided in an agreement with Participants under this Plan, the provisions of the Rules shall govern and prevail in the event of any conflict with an agreement with Participants under this Plan. |
Rule 19 Costs of the Plan
| 19.1 | The costs of introducing, operating and administering this Plan shall be borne by the Company. Except for the Release, the costs associated with the sale or transfer of the Shares shall be borne by the Participant. |
Rule 20 Other Provisions
| 20.1 | Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Group, on the one hand, and a Participant or other person or entity, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company. |
| 20.2 | If any provision of the Plan or any Award or agreement under this Plan is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify it under any law deemed applicable by the Supervisory Board, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Supervisory Board, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder of the Plan and any such Award and agreement under this Plan shall remain in full force and effect. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the VimpelCom Ltd. Director Investment Plan of our reports dated April 30, 2012, with respect to the consolidated financial statements of VimpelCom Ltd. (“VimpelCom”) as of December 31, 2011 and for the two years then ended and the effectiveness of internal control over financial reporting of VimpelCom as of December 31, 2011 included in its Annual Report on Form 20-F for the year ended December 31, 2011 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG ACCOUNTANTS LLP
Amsterdam, the Netherlands
August 14, 2012
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the VimpelCom Ltd. Director Investment Plan of our report dated April 30, 2012, with respect to the consolidated financial statements of Open Joint Stock Company “Vimpel-Communications” as of December 31, 2009 included in VimpelCom Ltd.’s Annual Report on Form 20-F for the year ended December 31, 2011 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLC
Moscow, Russia
August 14, 2012