Parties VimpelCom | Claimant VimpelCom Ltd. |
OTMTI | Respondent Orascom TMT Investments S.à r.l. |
Parties’ Submissions | |
RFA | VimpelCom’s Request for Arbitration, dated 8 July 2015 |
Response | OTMTI’s Response to Request for Arbitration and Counterclaim, dated 3 September 2015 |
Counterclaim | The separately numbered paragraphs in the Counterclaim section of OTMTI’s Response to Request for Arbitration and Counterclaim, dated 3 September 2015 |
SoC | VimpelCom’s Statement of Claim, dated 4 December 2015 |
SoDC | OTMTI’s Statement of Defense and Counterclaim, dated 4 March 2016 |
Reply | VimpelCom’s Amended Reply on Indemnification Claims and Statement of Defense to Counterclaim, dated July 8, 2016 |
Rejoinder | OTMTI’s Rejoinder on Indemnification Claims and Reply on Counterclaim, dated 22 August 2016 |
Rejoinder-CC | VimpelCom’s Rejoinder on Counterclaim, dated 3 October 2016 |
V-PHB | VimpelCom’s Post-Hearing Brief, dated 20 January 2017 |
O-PHB | OTMTI’s Post-Hearing Memorial, dated 20 January 2017 |
V-TS | VimpelCom’s Opening Submission on Tax Savings and Submission on Allocation of Costs, dated 24 March 2017 |
O-TS | OTMTI’s Memorial on the Application of Article 10.7(d) of the SSEA to VimpelCom’s Indemnification Claims, and the Cost Allocation Principles Governing Any Award of Costs, dated 24 March 2017 |
VR-TS | VimpelCom’s Reply Submission on Tax Savings, dated 14 April 2017 |
OR-TS | OTMTI’s Second Memorial on the Application of Article 10.7(d) of the SSEA to VimpelCom’s Indemnification Claims, dated 14 April 2017 |
V-Costs | VimpelCom’s Statement of Costs, dated 26 May 2017 |
O-Costs | OTMTI’s Summary of Costs and Fees Incurred by Respondent OTMTI, dated 26 May 2017 |
CLA | Claimant’s Legal Authority |
CE | Claimant’s Exhibit |
RLA | Respondent’s Legal Authority |
RE | Respondent’s Exhibit |
Abouali I | Witness Statement of Gamal Abouali, dated 4 March 2016 |
Abouali II | Second Witness Statement of Gamal Abouali, dated 21 August 2016 |
Cisternino I | Witness Statement of Christian Cisternino, dated 4 December 2015 |
Cisternino II | Second Witness Statement of Christian Cisternino, dated 6 June 2016 |
Dobbie I | Witness Statement of David Dobbie, dated 6 June 2016 |
Dobbie II | Second Witness Statement of David Dobbie, dated 30 September 2016 |
Hubert I | Witness Statement of Michel Hubert, dated 4 March 2016 |
Hupert II | Second Witness Statement of Michel Hubert, dated 22 August 2016 |
Kuper | Witness Statement of Bart Kuper, dated 6 June 2016 |
Lemke I | Witness Statement of Alexander Lemke, dated 4 December 2015 |
Lemke II | Second Witness Statement of Alexander Lemke, dated 6 June 2016 |
Lemke III | Third Witness Statement of Alexander Lemke, dated 30 September 2016 |
Maisto I | Expert Report of Guglielmo Maisto, dated 6 June 2016 |
Maisto II | Second Expert Report of Guglielmo Maisto, dated 24 March 2017 |
Maisto III | Third Expert Report of Guglielmo Maisto, dated 14 April 2017 |
Malackowski I | Expert Report of James E. Malackowski, dated 4 March 2016 |
Malackowski II | Second (Amended) Expert Report of James Malackowski (Royalty), dated 7 September 2016 |
Malackowski III | Second (Amended) Expert Report of James Malackowski (Interest), dated 7 September 2016 |
Manzitti I | Expert Report of Andrea Manzitti, dated 4 March 2016 |
Manzitti II | Second Expert Report of Andrea Manzitti, dated 20 August 2016 |
Manzitti III | Third Expert Report of Andrea Manzitti, dated 23 March 2017 |
Manzitti IV | Fourth Expert Report of Andrea Manzitti, dated 14 April 2017 |
Meyer I | Expert Report of Paul K. Meyer on Indemnification Claims, dated 6 June 2016 |
Meyer II | Amended Expert Report of Paul K. Meyer on Counterclaim, dated 8 July 2016 |
Meyer III | Third Expert Report of Paul K. Meyer (on Counterclaim), dated 30 October 2016 |
Nasr | Witness Statement of Karim-Michel Nasr, dated 18 August 2016 |
G. Petrella | Expert Report of Giovanni Petrella, dated 4 March 2016 |
V. Petrella I | Witness Statement of Vania Petrella, dated 4 March 2016 |
V. Petrella II | Second Witness Statement of Vania Petrella, dated 22 August 2016 |
Soliman | Witness Statement of Ayman Soliman, dated 3 March 2016 |
Suchak | Witness Statement of Ravi Suchak, dated 6 June 2016 |
Defined Terms and Other Abbreviations | |
Agenzia | Agenzia delle Entrate, the Italian Revenue Agency |
Arbitration Costs | As defined in Article 28.1 of the LCIA Rules |
Closing Memorandum | Memorandum of Closing between VimpelCom, OTH, Wind Telecom S.p.A., Weather Investments II S.à r.l., and Orascom Telecom Media and Technology Holding S.A.E., dated 15 November 2012 |
CSPs | Third-party lenders, known as Credit Support Providers, that entered into Credit Support Agreements with certain Italian banks in September 2005, in transactions connected to a 26 May 2005 Credit Facilities Agreement through which those banks lent funds to Wind Telecomunicazione |
EFSA | Egyptian Financial Supervisory Authority |
EGM | Extraordinary General Meeting |
49/51% Rule | An Algerian law that was understood to limit foreign ownership of Algerian companies to 49%, requiring 51 % Algerian ownership |
Gide | Gide, Loyrette Nouel |
Global Telecom | Global Telecom Holding S.A.E. |
Guardia | Guardia di Finanza, the Italian Financial Police |
Hellas I | Hellas I Telecommunication S.à r.l. |
IBLOR | Italian Bank Lender of Record |
Italian Tax Authorities or | Authorities | The Agenzia delle Entrate and the Guardia di Finanza, collectively |
LCIA Rules | 2014 Rules of Arbitration of the London Court of International Arbitration |
Legal Costs | As defined in Article 28.2 of the LCIA Rules |
Material Loss Provision | The provision in Article 11 of the Closing Memorandum, containing a reference inter alia to a "material Loss" |
Name Rights | As defined in Article 11 of the Closing Memorandum |
Orascom Telecom | Orascom Telecom Holding S.A.E. |
Orascom TMT | Orascom Telecom Media & Technology S.A.E. |
OTA | Orascom Telecom Algérie S.p.A. |
PVC | Processo verbale di constatazione, an audit report issued by the Agenzia |
SSEA | Amended and Restated Share Sale and Exchange Agreement between VimpelCom and OTMTI, dated 15 April 2011 |
Separation Agreement | Separation Agreement, dated 15 April 2011 |
Tellas | Tellas Telecommunications S.A. |
WACC | Weighted Average Cost of Capital |
WAHF | Wind Acquisition Holding Finance S.p.A. |
WAHF Audit | The Italian Tax Authorities’ audit of WAHF in 2013-2014 |
WAHF Luxembourg | Wind Acquisition Holdings Finance S.A. |
Weather II | Weather Investments II S.à r.l., now known as OTMTI |
Wind Group | Wind Telecom and its subsidiaries and affiliates |
Wind Hellas | Wind Hellas Telecommunications S.A. |
Wind Hellas Spin-Off (also "Spin-Off’) | The spin-off from or other disposal by the Weather Group of the Wind Hellas Group and all related assets and liabilities (SSEA, Art. 1.1) |
Wind Telecom | Wind Telecom S.p.A. (see also "Weather I") |
Wind Telecom Audit | The Italian Tax Authorities’ audit of Wind Telecom in 2013 |
Wind Telecomunicazioni | Wind Telecomunicazioni S.p.A. |
Wind Telecomunicazioni Audit | The Italian Tax Authorities’ audit of Wind Telecomunicazioni in 2013-2014 |
2006 PIK Loans | Payment-in-kind loans obtained by WAHF, through WAHF Luxembourg, in December 2006 |
2007 Shareholders Agreement | Shareholders agreement between Wind Telecom, Wind Telecomunicazioni and Wind Hellas, dated 26 October 2007 |
2009 PIK Loans | Payment-in-kind loans obtained by WAHF, through WAHF Luxembourg, in December 2009 |
Any and all disputes, controversies and claims between or among the parties and arising under, relating to or in connection with, this Agreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence, validity, enforceability or breach of this Agreement, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the LCIA Rules then in force (the "Rules"), save that any provision of the Rules which imposes any restriction on the nationality of any arbitrator or is otherwise invalid, void or unenforceable under English law shall not apply, in accordance with the following terms and conditions....
This Agreement, and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or alleged breach thereof, whether in contract, in tort or otherwise, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another jurisdiction.
Following the consultation period... any and all disputes, controversies and claims between or among the parties and arising under, related to or in connection with this Agreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence, validity, enforceability or breach of this Agreement, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the LCIA Rules then in force (the "Rules"), save that any provision of the Rules which imposes any restriction on the nationality of any arbitrator or is otherwise invalid, void or unenforceable under English law shall not apply, in accordance with the following terms and conditions....
This Agreement, and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or alleged breach thereof, whether in contract, in tort or otherwise, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another jurisdiction.
Following the Closing, Weather II29 shall indemnify, defend and hold VimpelCom and its respective officers, directors, employees, agents, Subsidiaries and Affiliates harmless from and against any and all liabilities, losses, damages, claims, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ and accounting fees (collectively, "Losses") incurred by VimpelCom or any of its respective officers, directors, employees, agents, Subsidiaries or Affiliates, arising out of or resulting from (i) any breach of any representation or warranty made by Weather I or Weather II contained in Article III, Article IV or Article IX, as the case may be, of this Agreement or (ii) any breach by Weather I or Weather II of any covenant or obligation of Weather I or Weather II under this Agreement; provided, however, the indemnification set forth in this Section 10.2(a) shall not apply to any Loss sustained solely by a Spin-Off Asset to the extent such Loss is retained by such Spin-Off Asset at the time it is spun-off pursuant to the Spin-Off Plan.
Following the Closing, Weather II shall indemnify, defend and hold VimpelCom and its respective officers, directors, employees, agents, Subsidiaries and Affiliates harmless from and against any and all Losses incurred by VimpelCom or any of its respective officers, directors, employees, agents, Subsidiaries or Affiliates, arising out of or resulting from (i) claims or residual liabilities related to Weather I’s ownership of Wind Hellas prior to the completion of the Wind Hellas Spin-Off,30 (ii) the Wind Hellas Spin-Off or (iii) claims related to Wind Hellas after the Wind Hellas Spin-Off.
Following the Closing, Weather II shall indemnify, defend and hold VimpelCom and its respective officers, directors, employees, agents, Subsidiaries and Affiliates harmless from and against any and all Losses incurred by VimpelCom or any of its respective officers, directors, employees, agents, Subsidiaries or Affiliates arising out of or resulting from any Italian Withholding Tax Liability.31
If VimpelCom, on one hand, or any of Weather II or the Weather I Shareholders, on the other hand, shall receive notice of any matter which such party, or any of its officers, directors, employees, agents, Subsidiaries or Affiliates (any of the foregoing, an "Indemnitee"), has determined has given, or is reasonably likely to result in, a right of indemnification under this Agreement, the Indemnitee shall promptly give the indemnifying party (the "Indemnitor") written notice of such claim, stating the amount of the Losses, if known, and method of computation thereof, all with reasonable particularity and including documentary proof, if available, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises; provided, however, that failure to so notify the Indemnitor shall not relieve the Indemnitor from any liability which it may have on account of the claim, except to the extent the Indemnitor shall have been prejudiced by such failure.
If an Indemnitee shall receive notice of any claim or proceeding initiated by a third party which is or may be subject to indemnification (other than any claim or proceeding related to Taxes) (each, a "Third Party Claim"), the Indemnitee shall promptly give the Indemnitor written notice of such Third Party Claim; provided, however, that failure to so notify the Indemnitor shall not relieve the Indemnitor from any liability which it may have on account of the Third Party Claim, except to the extent the Indemnitor shall have been prejudiced by such failure. In such event the Indemnitee shall permit the Indemnitor, at its option, to participate in the defense of such Third Party Claim by counsel of its own choice and at its own expense. If, however, the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee hereunder against all Losses that may result from such Third Party Claim, subject to the limitations set forth in this Article X, then the Indemnitor shall be entitled, at its option, to assume and control the defense of such claim by counsel of its own choice and at its own expense, provided that the Indemnitor and its counsel shall proceed with diligence and good faith with respect thereto....
For purposes of this Article X, a Loss shall be eligible for indemnification to the extent and only to the extent such Loss has effectively been sustained by the Indemnitee. Any indemnification due by the Indemnitor shall be calculated taking into account the value of (i) any Tax savings obtained by the Indemnitee Group and/or (ii) any increase in the amount of Tax losses available to them for carry-forward or carry-back and, in each case, resulting from the tax deductibility of the relevant Loss.
The Indemnitor shall not be held liable for indemnification with respect to a Loss or the increased portion of a Loss, as the case may be, to the extent such Loss, or increased portion of the Loss, for which indemnification is sought is attributed to (A) any willful misconduct on the part of the Indemnitee after Closing, or (B) any change in accounting methods (including consolidation methods) or policies of the Indemnitee after Closing, or (C) to the extent the Indemnitee Group had not, upon learning of the situation giving rise or likely to give rise to a Loss, used or caused entities of its Group to use, all reasonable efforts to mitigate the corresponding Loss; or (D) any breach of representation, warranty or covenant to the extent that the liability for such breach occurs or is increased as a result of any Tax-related or other Law enacted after the Closing with retroactive effect.
In the event of a Tax audit or inquiry by any Taxing Authority that may lead to an Italian Withholding Tax Liability and without prejudice to the provisions of Section 10.7 and provided that the following actions are not restricted by any obligation of confidentiality or by applicable Law:
(i) VimpelCom shall notify Weather II of such event as soon as reasonably practicable but in any event within ten (10) Business Days after VimpelCom or any of its Subsidiaries has been informed in writing of the beginning of such procedure.
(ii) VimpelCom shall coordinate, or cause its Subsidiaries to coordinate, with Weather II in the taking of any action relating to the conduct of such Tax audit or inquiry actions and provide to Weather II and its professional advisors such information and access to personnel, premises, documents and records as Weather II may reasonably request, subject to appropriate confidentiality undertakings. VimpelCom will use its reasonable efforts to include a representative appointed by Weather II in any meeting or material telephone call arranged by VimpelCom and/or the relevant Subsidiary with a representative of the relevant Taxing Authorities....
from a substantial standpoint - in our experience the current approach of Italian tax courts (and the Supreme Court of Justice) is generally very tough against taxpayers in relation to complex intra-group cross-border transactions generating an overall tax erosion in Italy, in particular in cases in which the transaction gives rise to costs not reflected in (i) real cash payments between related parties and (ii) income taxed at the level of another resident group company.89
• On 29 October 2013, VimpelCom wrote to OTMTI noting that it had not yet heard back following its 27 September 2013 notice about the initiation of the WAHF Audit, invited OTMTI again to discuss the issue, and inquired whether OTMTI would like to attend any meetings with the Guardia.278 The parties thereafter met on 7 November 2013 to discuss the WAHF Audit.279
• On 19 November 2013, VimpelCom notified OTMTI that the Guardia wished to meet to discuss "the preliminary findings of their investigations," thereafter notified OTMTI of the specific time and place for the meeting, and proposed a call to "discuss the approach for the meeting"; after the meeting, VimpelCom proposed another "update call" with OTMTI.280
• On 25 November 2013, VimpelCom requested information from OTMTI, explaining that "[w]e will need to be able to provide the [Guardia] with adequate explanations to these questions and why Weather took the decisions it did."281 While VimpelCom was waiting for OTMTI’s response, the Guardia requested another meeting, and VimpelCom invited OTMTI to attend.282
• On 3 December 2013, VimpelCom asked OTMTI to share its "arguments to support that WAHF was beneficial owner of the relevant payments," in advance of the next meeting with the Guardia.283 VimpelCom also forwarded "the list of documents requested" by the Guardia.284
• VimpelCom thereafter arranged for OTMTI to attend the next meeting with the Guardia on 12 December 2013.285 OTMTI received the same document from the Guardia that VimpelCom did, setting out its "conclusion" that a 27% withholding tax amounting to €199 million should have been applied, because "[t]hey considered the Luxco as a conduit... and in general the structure an abusive construction."286 The Guardia was to issue its final report soon to the Agenzia, and OTMTI advised that "[a]t this point our thinking is that there is little to be gained by trying to change their mind and that our arguments should be presented to the [Agenzia] in due course."287
• On 21 February 2014, the same day VimpelCom learned that the Agenzia had agreed to meet,288 it asked OTMTI if it wished to attend. OTMTI confirmed that it would do so and proposed a preparation call to "discuss the findings of the audit and the approach to take with the tax administration." OTMTI indicated that it believed the Guardia’s findings were "wrong," and that "there is room" to rebut those findings, through arguments about the "genuine" role of WAHF Luxembourg. These would be along the same lines that it had just argued in the Wind Telecomunicazione Audit with respect to another challenged transaction, referred to in the correspondence as the "2005 Senior."289
• Following further discussions between the Parties, OTMTI suggested asking the Agenzia to postpone the scheduled meeting, whereas VimpelCom was concerned that this "could lead to a more aggressive approach from them," and preferred to proceed with the meeting, at minimum to ask the Agenzia to explain "on what basis [the Guardia’s report] is grounded." OTMTI believed that approach would not suffice since "we have had this report for over 2 months now, so supposedly have plenty of time to review it," even though the reality was that in the interim "the Senior issues took precedence" in the Parties’ mutual preparations. OTMTI therefore considered it "preferable to take the time" first to review arguments (including those soon to be circulated by its outside counsel), "before engaging with" the Agenzia. It concluded that "[h]owever you are best placed to weight the risk of antagonizing the [Agenzia] by delaying the meeting, versus that of coming to them somewhat unprepared, and we will defer to you[r] final judgement here."290
• VimpelCom responded that, since 60 days already had expired following the Guardia’s report, "they can issue the tax assessment at any time," so it believed it best to proceed with the meeting. OTMTI confirmed its outside counsel would attend. VimpelCom in turn confirmed that "[i]n the event that we are compelled to discuss possible defensive arguments, we intend to outline the points of objection [that its outside counsel] mentioned on the call [with OTMTI]," and if OTMTI’s outside counsel "believes there are further arguments which we should advance to help our position, we would certainly welcome her raising them with the [Agenzia] at the meeting."291 OTMTI’s outside counsel then circulated an executive summary of possible defense arguments to be considered.292
• On 5 March 2014, OTMTI requested a meeting to "better understand your estimates of potential claim and/or settlement amount under different scenarios," and "review the action plan on the various open cases," and VimpelCom proposed a meeting two days later.293
• Following that meeting, the Parties scheduled a further call "to resume discussions on possible settlement scenarios for the Senior and on the PIK," and VimpelCom responded by circulating "for your review a first draft of the memo that we intend to submit to the [Agenzia] on WAHF... in case you had any substantive comments." VimpelCom noted however that "[w]e should aim to submit the memo to the [Agenzia] as soon as possible before they issue the assessment." It also advised OTMTI that the Agenzia had requested another meeting, and invited OTMTI’s counsel to attend.294
• OTMTI’s counsel thereafter submitted its comments on the draft memo,295 VimpelCom returned a revised second draft which "takes into account the comments which [OTMTI’s counsel] had provided on the first draft, and OTMTI confirmed, "no further comments from our side."296 The resulting defense memorandum, reflecting this process of coordination, was submitted to the Agenzia on 20 March 2014.297
• Following submission of the defense memo, VimpelCom notified OTMTI of the Agenzia’s request for another meeting, and proposed another call to discuss.298 During this 26 March 2014 meeting, the Agenzia apparently continued to assert that WAHF Luxembourg was not the beneficial owner of the WAHF interest payments, so a withholding tax should have been paid.299
• Over the next week, it appears that the only communications with the Agenzia were about its parallel inquiry in relation to the Wind Telecomunicazione Audit.300 Thereafter, when the Agenzia proposed another meeting on the WAHF Audit, VimpelCom on 9 April 2014 notified OTMTI of this fact, as well as its "sense that there may be some appetite on their part to explore settlement of the audit without the application of penalties."301 VimpelCom also informed OTMTI that it was important to follow up with the Agenzia soon, since "there will be several holidays in Italy" beginning 18 April 2014 through early May 2014, and the Agenzia officer responsible for the WAHF Audit "will soon be leaving and will be replaced with someone else."302 VimpelCom invited OTMTI’s counsel to participate in a meeting then scheduled for 11 April 2014.303
• The Agenzia thereafter postponed the meeting to the morning of 14 April 2014, a time when OTMTI’s counsel could not attend, but she confirmed that if the meeting could not be postponed further, "we are fine with you and [your outside counsel] meeting with them on your own." VimpelCom nonetheless attempted to get the meeting postponed to 15 April 2014, but the Agenzia ultimately declined to do so and asked to proceed on 14 April 2014. VimpelCom proceeded with the meeting on its own, as OTMTI had expressly consented to its doing. It also informed OTMTI of its desire to arrange a "second meeting" that week with the Agenzia, tentatively on 17 April 2014, before the start of the holiday period.304
when deciding whether to settle or to pursue litigation on a very complex matter, which also involve[s] considerable amounts... it may be not sufficient to evaluate whether strong arguments are available to resist the claim. Unfortunately, as far as complex and international transactions are concerned, the taxpayer runs the risk that its own arguments, even if reasonably grounded, would not be properly understood and evaluated by the Tax Court. This is because Italian judges are not normally familiar with such complex tax issues. Moreover, the recent case-law developments show that, especially when complex and international financial transactions are concerned, the Tax Courts often rule in favor of the Tax Authorities.357
The firm suggested that the defensive arguments previously outlined in any event "may be used strategically in the tax settlement procedure to achieve a satisfactory agreement," which counsel characterized as "at least" (a) distinguishing between "the amounts effectively paid to resident CSPs" and the larger amount passed on to foreign CSPs, (b) as to the latter, obtaining any lower withholding tax rates provided under applicable tax treaties, and (c) obtaining an agreement involving no penalties, which otherwise could be significant.358
a Loss shall be eligible for indemnification to the extent and only to the extent such Loss has effectively been sustained by the Indemnitee. Any indemnification due by the Indemnitor shall be calculated taking into account the value of (i) any Tax savings obtained by the Indemnitee Group and/or (ii) any increase in the amount of Tax losses available to them for carry-forward or carry-back and, in each case, resulting from the tax deductibility of the relevant Loss.
Change of Business Name; Use of Retained Name and Marks.
(i) As promptly as reasonable after the Closing Date, VimpelCom shall use its commercially reasonable efforts to cause the name of the businesses and trade names, in each case, specifically identified on Annex 6.2(e) to be changed to names that do not constitute Retained Names and Marks except as provided in Section 4.6(a) of the OTH Separation Agreement; provided that in no event shall VimpelCom’s obligation in this Section 6.2(e) require VimpelCom to take any action that would, or would be reasonably expected to, result in the loss of a material Permit or in any material Loss....
(ii) As promptly as reasonably practicable following the Closing Date and provided that names are changed pursuant to Section 6.2(e)(i), VimpelCom shall remove or obliterate all such Retained Names and Marks from the businesses conducted by Weather I, including from signs, purchase orders, invoices, brochures, labels, letterheads, shipping documents, packaging material and other materials. Notwithstanding the foregoing, the use by VimpelCom or its Affiliates of such materials during the eighteen (18) months following the Closing Date (or during any extension of such period), shall not constitute a breach of the foregoing obligation so long as VimpelCom is using reasonable efforts to terminate any and all further use thereof...484
In furtherance of Section 6.2(e) of the SSEA and notwithstanding any provision set forth therein to the contrary, [Orascom Telecom] shall at its own cost:
(a) Use commercially reasonable efforts to procure that, to the extent legally permissible, the company names of [Orascom Telecom] and of any other member of the Orascom Group which includes the Rump Names are changed within 90 Business Days of the Demerger Closing Date, provided, however, that [Orascom Telecom] agrees not to change the company names of [Orascom Telecom] and [OTA] during the 180-day period following the Closing Date without the prior written consent of [OTMTI], following which the name changes for such entities shall be undertaken within 90 Business Days (unless such 180-day period is further extend by mutual agreement of the parties)...485
Notwithstanding anything to the contrary in Clauses 4.6 and 4.7 of the Separation Agreement or in the SSEA, [Orascom Telecom] shall retain non-exclusive rights to use, reproduce, display and exploit the company names of [Orascom Telecom] and [OTA] and all other uses of "Orascom" (including as trade names, trademarks, logos, designs, domain names or otherwise) (the "Name Rights") to the same extent and in the same ways that [Orascom Telecom] has used and exploited any Name Rights prior to the Demerger Closing Date. These Name Rights shall terminate at midnight on December 31, 2012, unless termination or any action required by VimpelCom would, or would be reasonably expected to, result in the loss of a material Permit or any material Loss, in which case [Orascom Telecom] and [Orascom TMT] shall in good faith negotiate appropriate modifications to the Name Rights with a view to their termination as soon as practicable....