Download Notice and Procedures Pertaining to Binding Indications of Notice

Notice and Procedures Pertaining to Binding Indications of Notice
for ADSs evidencing shares of Mobile Telesystems PJSC
We refer to that Deposit Agreement dated as of July 6, 2000 as amended (as amended from time
to time, the "Deposit Agreement"), among Mobile Telesystems PJSC, incorporated under the laws
of the Russian Federation ("MTS"), JPMorgan Chase Bank, N.A., as depositary (the
"Depositary"), and all holders from time to time of American depositary receipts ("ADRs") issued
thereunder. Pursuant to the permits granted to MTS under applicable Russian regulations with
respect to the ADRs issuable under the Deposit Agreement, a maximum of 797,330,454 ordinary
shares of MTS ("Shares") may be accepted by the Depositary under the Deposit Agreement. At
the current ratio of each American depositary share ("ADS") representing two Shares, under the
permit no more than 398,665,227ADSs can be outstanding at any given time.
As cancellations of ADSs occur, from time to time the Depositary may be in a position to accept
the deposit of Shares under the Deposit Agreement. As a result of recent ADS cancellations, the
Depositary is now in a position to accept deposits of up to 87,929,284 Shares which, on deposit
thereof under the Deposit Agreement, would be represented by the issuance of up to 43,964,642
additional ADSs.
In order to deal with such future issuances of ADSs, MTS and the Depositary have entered into
Amendment No. 5 to the Deposit Agreement wherein initial procedures have been established
with respect to the processing of additional deposits of Shares under the Deposit Agreement. A
copy of such amendment is available for viewing on the website of the U.S. Securities and
Exchange Commission at:
https://www.sec.gov/cgi-bin/browseedgar?action=getcompany&CIK=0001115837&owner=include&count=40&hidefilings=0
At this time in order to allow an equal opportunity for interested investors to deposit Shares under
the Deposit Agreement, during the period from 9:00 AM (New York City time) on June 9, 2016
through 5:00 pm (New York City time) on June 16, 2016 (the "Indication Period"), the Depositary
will be accepting binding indications of interest ("Binding Indications") through the proper
completion and timely submission of the form of certification attached as an exhibit to this notice.
At the conclusion of the Indication Period, the Depositary will determine if all or a portion of the
Shares included in the Binding Indications that were properly and timely submitted may be
deposited with the Depositary’s account with Sberbank of Russia (the "Custodian"). If in
aggregate the number of Shares indicated in all of the accepted Binding Indications is not more
than 87,929,284, investors whose Binding Indications were accepted will be advised accordingly
by the Depositary and will be obligated to comply with the provisions of the Deposit Agreement
regarding the issuance of ADSs and promptly deliver that number of Shares indicated in such
investor's Binding Indication to the Custodian. To the extent the number of Shares sought to be
deposited based upon all Binding Indications properly and timely received during the Indication
Period exceeds 87,929,284 Shares, the number of Shares accepted for deposit from such Binding
Indications shall be reduced by the Depositary on a pro rata basis. Each investor whose Binding
Indication was pro rata accepted will be advised by the Depositary of the number of Shares
required to be deposited by such investor, each of whom will be obligated to comply with the
provisions of the Deposit Agreement regarding the issuance of ADSs and to promptly deliver to
the Custodian for deposit under the Deposit Agreement the exact number of Shares indicated by
the Depositary. Deliveries of Shares shall be required within three (3) business days of the date
on which the Depositary first notifies the investor that all or a portion of such investor's Binding
Indication has been accepted.
.
For every two (2) Shares accepted by the Depositary for deposit at the Custodian, the depositing
investor (or such person or entity directed by such depositing investor) will receive one (1) ADS.
An ADS issuance fee of up to $3.50 per 100 ADSs issued (or portion thereof) will be assessed in
accordance with the Deposit Agreement.
MTS investors should be advised that the presentation of a Binding Indication to the Depositary
during the Indication Period and notification to such investor by the Depositary that all or a
portion of the Shares set forth in such Binding Indication are to be accepted for deposit will
contractually obligate the investor to deposit with the Custodian the number of Shares indicated
by the Depositary (up to the amount set forth in such investor's Binding Indication). If an investor
shall fail to timely deposit the requisite number of Shares indicated by the Depositary, such
investor shall not be permitted to submit any future Binding Indications and shall be required to
indemnify the Depositary for any and all losses, liabilities and expenses incurred by the
Depositary in connection with such failure (including, without limitation, reasonable fees and
expenses of counsel and the costs of the Depositary in either (i) providing the market with an
additional notice of availability and seeking further Binding Indications or (ii) notifying those
investors, if any, whose Binding Indications were not fully accepted by the Depositary that they
may deposit additional Shares in accordance with their indications of interest).
All determinations made by the Depositary shall be final and binding. The Depositary shall have
no liability to investors submitting Binding Indications, to any other investors including any
shareholders of the Company, or to any Holders, Beneficial Owners or the Company, or any of
their respective directors, officers, employees, agents and affiliates in connection with any actions
taken by the Depositary in connection with the above procedures including without limitation any
and all determinations made by the Depositary or the lack thereof.
For more information on J.P. Morgan, go to www.jpmorganchase.com/corporate/About-JPMC/about-us.htm
For more information on J.P. Morgan’s Depositary Receipt services, go to www.jpmorgan.com/visit/adr
For market information on Depositary Receipts and international equities, go to J.P. Morgan’s Web site
www.adr.com
Disclosures
J.P. Morgan collects fees from holders of depositary receipts. JPMorgan may (i) reimburse the issuer for certain
expenses incurred by the issuer in connection with the depositary receipts program or (ii) share with the issuer
revenue derived by JPMorgan from the program. JPMorgan may use brokers, dealers or other service providers
that are affiliates or other divisions of JPMorgan and may earn or share fees and commissions.
From time to time, J.P. Morgan may pay a rebate to brokers in connection with the deposit of shares for the
issuance of unsponsored depositary receipts. J.P. Morgan disclaims all liability arising out of, or relating to, such
rebates. In particular, J.P. Morgan disclaims all responsibility regarding whether such broker passes all or a
portion of such rebate to beneficial holders of such depositary receipts.
The details of this announcement are provided for informational purposes only. JPMorgan does not warrant or
guarantee the accuracy or completeness of, and does not undertake an obligation to update or amend this
announcement.
[Date]
JPMorgan Chase Bank, N.A., as Depositary
4 New York Plaza, 13th Floor
New York NY 10004
Facsimile Number: 1-302-691-6783
Attention:
J.P. Morgan ADR Operations
Dear Sirs,
Reference is hereby made to that Deposit Agreement dated as of July 6, 2000 as amended (as amended
from time to time, the "Deposit Agreement"), among Mobile Telesystems PJSC, incorporated under the
laws of the Russian Federation (the “Company”), JPMorgan Chase Bank, N.A., as depositary (the
"Depositary"), and all holders from time to time of American depositary receipts ("ADRs") issued
thereunder. Unless otherwise defined in this certification, all capitalized terms used, but not otherwise
defined, herein shall have the meaning given to such terms in the Deposit Agreement.
In accordance with the provisions of Section 3 of the Deposit Agreement each of the undersigned is
providing the Depositary with this certification setting forth its binding indication of interest (“Binding
Indication”) to timely deposit the below referenced number of Shares with Sberbank of Russia (the
"Custodian"), as Custodian under the Deposit Agreement in order to receive ADSs or Restricted ADSs in
respect thereof. If this certification is being provided by multiple signatories, the obligation to deliver
Shares under this Binding Indication shall be the joint and several obligation of each such signatory. Each
ADS/Restricted ADS represents two Shares.
Each signatory below understands and agrees that presentation of this Binding Indication to the Depositary
jointly and severally obligates such signatory to deliver all of the Shares indicated below, or such reduced
Share amount as determined by the Depositary in accordance with the provisions of the Deposit
Agreement, within three (3) Moscow business days after notification of the Depositary's acceptance of
some or all of the Shares indicated below for deposit under the Deposit Agreement.
In connection with the Binding Indication set forth in this certification,
undersigned hereby certifies and agrees as follows:
each of the
1. Each has received and read a copy of the Depositary’s announcement dated June 6, 2016 and
has reviewed the terms of the Deposit Agreement (as most recently amended by Amendment
No. 5 thereto dated as of June 3, 2016 as filed with the U.S. Securities and Exchange
Commission);
2. Each is providing this Binding Indication setting forth its binding obligation to deposit the
number of Shares indicated below or such reduced amount as the Depositary may instruct in
accordance with the application of the pro ration mechanism described in the Deposit
Agreement and understands that once this Binding Indication has been provided to the
Depositary the same may not be amended, rescinded, withdrawn or modified by or on behalf
of any of the undersigned;
3. Each agrees that provision of this Binding Indication and notification by the Depositary that
all or a portion of the Shares indicated herein are to be accepted for deposit contractually
obligates each of the undersigned (on a joint and several basis in the case of multiple
signatories) to deliver to the Depositary’s account with the Custodian the number of Shares
indicated by the Depositary and that such delivery is required to be made within three (3)
Moscow business days after the date on which the Depositary notifies the person whose name
is indicated in the section below captioned “Contact Information” of such partial or complete
acceptance;
4.
If the requisite number of Shares indicated by the Depositary are not timely deposited with the
Custodian, each of the undersigned shall be prohibited from submitting any future Binding
Indications and each shall be required to indemnify the Depositary, on a several basis, for any
and all losses, liabilities and expenses incurred by the Depositary in connection with such
failure (including, without limitation, reasonable fees and expenses of counsel and the costs of
the Depositary in either (i) providing the market with an additional notice of availability and
seeking further Binding Indications or (ii) notifying those investors, if any, whose Binding
Indications were not fully accepted by the Depositary that they may deposit additional Shares
in accordance with their indications of interest);
5. Each acknowledges that all determinations made by the Depositary shall be final and binding.
Each further acknowledges that the Depositary shall have no liability to any investors
submitting Binding Indications, including, without limitation, any of the undersigned or to any
other investors (including any shareholders of the Company, Holders or Beneficial Owners) or
to the Company, or any of their respective directors, officers, employees, agents and affiliates
in connection with any actions taken by the Depositary in connection with the procedures
utilized with respect to each and any binding indication submitted to the Depositary including
without limitation any and all determinations made by the Depositary or the lack thereof; and
6. If any of the undersigned is an “affiliate” of the Company or is depositing any Shares that are
“restricted securities” (as such terms are defined below), then in either such case the person in
whose name Restricted ADSs will be registered (under the ADS delivery instructions below)
has completed and attached hereto a Certification and Agreement Upon the Deposit of Shares
by Affiliates or Holders of Restricted Securities form and confirms that it agrees to each of
the certifications contained therein.
7. If this Binding Indication is being submitted by multiple signatories, each of the undersigned
confirms that (A) the person who has initialed the appropriate line in the section below
captioned “Affiliate Status and Restricted Securities” is authorized to do so on behalf of all of
the undersigned and (B) the person whose name and contact details are indicated in the section
below captioned “Contact Information” is authorized on behalf of all of the undersigned to
respond on behalf of all of the signatories below to any inquiries from the Depositary with
respect to this Binding Indication and to receive any notifications and other communications
sent by or on behalf of the Depositary relating to this Binding Indication.
AFFILIATE STATUS AND RESTRICTED SECURITIES
All investors must initial one of the lines below:
Affiliate Status: An affiliate is a person, such as an executive officer, a director or large shareholder,
in a relationship of control with the Company. Control means the power to direct the management and
policies of the Company, whether through the ownership of voting securities, by contract, or
otherwise. Shares held by an affiliate are referred to as “control securities.” Control securities may
under certain circumstances also constitute restricted securities.
Restricted Securities: The Shares indicated below constitute restricted securities if any such Shares
were acquired directly or indirectly from the Company or a controlling person or "affiliate" of the
Company in a transaction or chain of transactions not involving any public offering, or if any such
Shares otherwise fall within the definition of “restricted securities” set forth in Rule 144 under the
Securities Act of 1933, as amended.
If any of the Shares indicated in this form are control securities and/or restricted securities (as
indicated below), all signatories below confirm that Restricted ADSs will be issued with respect to
such Shares (to the extent accepted for deposit) and such Restricted ADSs will be registered in the
name of the person indicated below.
At least one of the signatories below must initial the appropriate line on behalf of all signatories below. If this
form is signed by multiple signatories, the below certifications must cover the Shares owned by all such
signatories.
The signatories hereto jointly and severally certify that
One or more of the signatories below is an affiliate or
some or all of the Shares indicated herein are restricted securities:__________________
Or
NONE of the signatories below is an affiliate and
NONE of the Shares indicated herein are restricted securities: _____________________
If any one or more of the signatories below is an affiliate, please describe the relationship between such
signatory(ies), its affiliates and the Company:
_____________________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
CONTACT INFORMATION (all lines must be completed, to the extent applicable):
Name of Signatory 1:_____________________________________________________________________
Signatory 1 Address:_____________________________________________________________________
Name of Signatory 2:_____________________________________________________________________
Signatory 2 Address:______________________________________________________________________
Name of Signatory 3:_____________________________________________________________________
Signatory 3 Address:______________________________________________________________________
Name of Signatory 4:______________________________________________________________________
Signatory 4 Address:______________________________________________________________________
(if additional signatories exist please attach an additional page to the completed form with contract details)
Phone Number on behalf of all signatories (including country code/area code and any extensions):_________________
Contact Person on behalf of all signatories hereto:________________________________________________
Contact Person email on behalf of all signatories hereto:___________________________________________
Total Number of Shares (not currently held in ADS form) currently held by all signatories hereto and by all affiliates of
such signatories (irrespective of whether such affiliates are seeking to deposit Shares hereunder):
A)
Number of Shares sought to be deposited hereunder that are control securities (i.e., are beneficially owned
by an affiliate of the Company) but are NOT restricted securities:
B)
C)
securities:
Number of Shares sought to be deposited hereunder that are restricted securities:
Number of Shares sought to be deposited hereunder that are neither control securities nor restricted
Total number of Shares sought to be deposited (A plus B plus C) and for which this Binding Indication is
provided:
Note: If any of the Shares sought to be deposited are both control securities and restricted securities, such Shares are
deemed to constitute restricted securities and the number of Shares sought to be deposited should be reflected under B)
above.
ADS delivery instructions (for non-affiliates depositing non-restricted securities)
Please deliver the ADSs with respect to the accepted deposits of Shares by or on behalf of all of the undersigned to the
following account within The Depository Trust Company:
DTC Participant Number:
Name of DTC Participant:
Investor Account Number:
Investor Account Name:
DTC Participant Contact Name:
DTC Participant Contact Phone Number:
DTC Participant Contact Email:
ADS delivery instructions (for deposits of control securities by affiliates or deposits of restricted securities by any
investor).
Please register the Restricted ADSs with respect to the accepted deposits of Shares by or on behalf of all of the
undersigned as follows:
Registered Name:
Registered Address
Holder Email:
Holder Phone Number (including country code/area code and any extensions):
U.S. Tax Identification Number (a form W-8 or W-9 may also be required upon
acceptance of any portion of the Binding Indication):
Each of the undersigned hereby certifies all of the above is true and correct as of the date set forth below and
jointly and severally agrees to deliver to the Custodian (Sberbank of Russia) at the account notified to it by the
Depositary that number of Shares indicated above (or such reduced number as shall be notified to it by the
Depositary) within three Moscow business days after notification of the Depositary's acceptance of some or all
of the Shares indicated in A), B) and C) above as part of this Binding Indication.
Each of the undersigned acknowledges that the certifications and agreements set forth herein shall survive the
issuance and cancellation of ADSs/Restricted ADSs. This Binding Indication agreement shall be governed by
and construed in accordance with the laws of the State of New York.
In addition to the indemnifications set forth above, each of the undersigned agrees, on a several basis, to
indemnify the Depositary and each of its officers, directors, agents, employees, and affiliates for any and all
liability incurred as a result of their reliance on the acknowledgements and certifications herein.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By:_______________________
Name:
Title:
Date:
[NAME OF CERTIFYING ENTITY]
By:_______________________
Name:
Title:
Date:
[NAME OF CERTIFYING ENTITY]
By:_______________________
Name:
Title:
Date:
[NAME OF CERTIFYING ENTITY]
By:_______________________
Name:
Title:
Date:
Exhibit C to Deposit Agreement
Certification and Agreement of Affiliates Upon the Deposit of Shares
[DATE]
JPMorgan Chase Bank, N.A., as Depositary
ADR Department
4 New York Plaza, Floor 12
New York, New York 10004
Re:
Mobile Telesystems PJSC
Dear Sirs:
Reference is hereby made to the Deposit Agreement dated as of July 6,
2000, Amendment No. 1 thereto dated as of March 19, 2004, Amendment No. 2 thereto
dated as of December 20, 2004, Amendment No. 3 thereto dated as of August 7, 2007,
Amendment No. 4 thereto dated as of April 30, 2010 and Amendment No. 5 thereto dated
as of June 3, 2016 (as so amended and further amended from time to time, the "Deposit
Agreement"), among Mobile Telesystems PJSC (the "Company"), JPMorgan Chase Bank,
N.A., as Depositary, and all holders from time to time of American depositary receipts
issued thereunder.
Capitalized terms used but not defined herein shall have the meanings
given them in the Deposit Agreement. References to the Deposit Agreement include the
certification and other procedures established by the Depositary pursuant to such
agreement.
This certification and agreement is furnished in connection with the
deposit of Shares and issuance of Restricted ADSs under the Deposit Agreement.
We acknowledge that by depositing the Shares, we will become a party to
and be bound by the provisions of the Deposit Agreement, including Section 5 thereof
pertaining to Restricted ADSs, and that the Restricted ADSs and the Shares represented
thereby have not been and will not be registered under the Securities Act of 1933, as
amended (the "Securities Act").
We certify that (i) we are, or at the time the Shares are deposited and at
the time the Restricted ADSs are issued will be, the beneficial owner of the Shares and of
the Restricted ADSs, (ii) we are not a U.S. person (as defined in Regulation S under the
Securities Act ("Regulation S")) and we are located outside the United States (within the
meaning of Regulation S) and acquired the Shares to be deposited outside the United
States (within the meaning of Regulation S) in a transaction satisfying all of the applicable
requirements of Regulation S, (iii) we will not sell, offer, distribute, transfer or dispose of
the Restricted ADSs except (a) outside the United States in an “offshore transaction”
within the meaning of Regulation S on a Designated Offshore Securities Market (as
defined in Regulation S) or in a transaction otherwise satisfying all of the applicable
requirements of Regulation S under the Securities Act, (b) pursuant to an effective
registration statement under the Securities Act, (c) in compliance with Rule 144 under the
Securities Act, or (d) otherwise pursuant to an applicable exemption from the registration
requirements of the Securities Act, subject in the case of each of clauses (iii)(a), (iii) (c)
and (iii) (d) to an opinion of counsel satisfactory to the Company and the Depositary, that
such registration or compliance is not required as to said sale, offer, distribution, transfer
or disposal, (iv) in connection with any sale pursuant to clause (iii)(a) above, we will not
engage in any “directed selling efforts” (within the meaning given to such term under
Regulation S) in the United States in connection with such sale, and we will not make such
sale if we are aware of the Company having made, or being engaged in, “directed selling
efforts” (within the meaning given to such term under Regulation S) in the United States,
(v) we are not in the business of buying and selling securities, (vi) we are (or may be) an
affiliate of the Company, and as such we understand that the deposit of Shares, the
issuance of the Restricted ADSs and the sale of the Restricted ADSs is subject to
limitations under the Securities Act and that we are providing this Certification and
Agreement to provide comfort to the Depositary and the Company that such deposit,
issuance and any sale may occur without the need for registration under the Securities Act.
We agree to indemnify the Depositary, the Company and each of their
respective officers, directors, agents, employees, and affiliates for any and all liability
incurred as a result of their reliance on our certifications herein or in connection with our
deposit of Shares, the issuance of the Restricted ADSs and any sale of the Restricted ADSs
or the Shares represented thereby.
We certify that we have confirmed with the Company that the deposit of
Shares for the issuance and subsequent sale of Restricted ADSs is not subject to any
limitation or restriction thereon imposed by the Company.
We represent and warrant that:
(i)
the Shares being deposited are duly authorized, validly issued,
fully paid, non-assessable, and were legally obtained by us;
(ii)
all pre-emptive (and similar) rights with respect to such Shares
have been validly waived or exercised;
(iii)
we are duly authorized to deposit the Shares and have fulfilled all
requirements of applicable law or regulation with respect to the Shares or the deposit
thereof against the issuance of Restricted ADSs;
(iv)
the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim;
(v)
the Shares presented for deposit have not been stripped of any
rights or entitlements; and
(vi)
such Shares are not subject to any unfulfilled requirements of
applicable law or regulation.
We acknowledge that such representations and warranties shall survive
the deposit and withdrawal of Shares and the issuance and cancellation of Restricted ADSs
and the transfer of such Restricted ADSs. This Certificate and Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
Very truly yours,
[Name of Certifying Entity]
[By:_______________________
Name:
Title: