NOVEMBER 9, 2001
SONERA CORPORATION
RIGHTS OFFERING OF - SHARES
IN THE FORM OF SHARES
OR AMERICAN DEPOSITARY SHARES
--------------------------
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
--------------------------
SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
MESSETURM
60308 FRANKFURT AM MAIN
GERMANY
SONERA CORPORATION
(incorporated under the laws of
the Republic of Finland)
Rights Offering of - Shares
in the form of Shares
or American Depositary Shares
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
November 9, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Deutsche Bank AG London
Nordea Securities Corporate Finance Oy
Mandatum & Co Ltd.
c/o Goldman ▇▇▇▇▇ International
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
and
Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
Sonera Corporation, a company organized under the laws of Finland (the
"Company"), is offering up to - new shares of the Company (the "Offered
Shares"), in the form of shares (the "Shares") or American depositary shares
("ADSs"), in a rights offering to holders of its Shares (the "Shareholders") on
November 14, 2001 (the "Record Date") and to holders of its ADSs (the "ADS
Holders") on the Record Date pursuant to shareholders' pre-emptive rights (the
"Rights Offering"). The Company is granting Shareholders primary rights to
purchase their pro rata share of the Offered Shares (the "Primary Share Rights")
and is granting ADS Holders primary rights to purchase their pro rata share of
the Offered Shares, in the form of ADSs (the "Primary ADS Rights" and, together
with the Primary Share Rights, the "Primary Rights"). In addition, at the same
time, the Company is granting Shareholders secondary rights to purchase a
portion of any Offered Shares that are not subscribed for pursuant to the
exercise by Shareholders of Primary Share Rights (the "Secondary Share Rights")
and is
1
granting ADS Holders secondary rights to purchase a portion of any Offered
Shares, in the form of ADSs, that are not subscribed for pursuant to the
exercise by Shareholders of Primary Share Rights (the "Secondary ADS Rights"
and, together with the Secondary Share Rights, the "Secondary Rights"). The
Primary Share Rights and the Secondary Share Rights together are referred to
herein as the "Share Rights"; the Primary ADS Rights and the Secondary ADS
Rights together are referred to herein as the "ADS Rights"; and the Share
Rights and the ADS Rights together are referred to herein as the "Rights".
The Republic of Finland, acting through the Ministry of Transport and
Communications (the "Majority Shareholder"), has announced that it will exercise
all of its Primary Share Rights, consisting of the right to subscribe for -
Offered Shares, being 52.8 percent of the Offered Shares. The remaining Offered
Shares (those not offered to the Majority Shareholder), being 47.2 percent of
the Offered Shares or - Offered Shares, are referred to herein as the
"Underwritten Shares". Subject to the terms and conditions stated herein, the
underwriters named in Schedule 1 hereto (the "International Underwriters", for
whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and Deutsche Bank AG London are acting as
representatives (the "Joint Global Coordinators")) propose to subscribe or to
procure subscribers for, and the Company proposes to issue to the International
Underwriters (or to subscribers procured by the International Underwriters, as
the case may be), at the subscription price of E- per share (the
"Subscription Price"), up to - percent (the "International Portion") of the
Underwritten Shares (the "International Underwritten Shares"), being - Offered
Shares (the "International Underwriting Commitment"), subject to the terms and
conditions of this Agreement.
It is understood by all parties that the Company is concurrently entering into
an agreement (the "U.S. Underwriting Agreement" and, together with the
International Underwriting Agreement, the "Underwriting Agreements") providing,
subject to the terms and conditions stated therein, for the underwriters named
therein (the "U.S. Underwriters" and, together with the International
Underwriters, the "Underwriters") to subscribe or to procure subscribers for,
and for the Company to issue to the U.S. Underwriters (or to subscribers
procured by the U.S. Underwriters, as the case may be), at the Subscription
Price, up to - percent (the "U.S. Portion") of the Underwritten Shares (the
"U.S. Underwritten Shares"), being - Offered Shares (the "U.S. Underwriting
Commitment" and, together with the International Underwriting Commitment, the
"Underwriting Commitments"). Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the U.S.
Underwriting Agreement are hereby made expressly conditional on one another.
The aggregate number of Underwritten Shares to be subscribed for by the
Underwriters (or for which the Underwriters shall procure subscribers) pursuant
to the Underwriting Commitments (the "Purchased Shares") will be the number of
Underwritten Shares notified to the Joint Global Coordinators, on behalf of the
International Underwriters, and the U.S. Underwriters by the Company in
accordance with Section 2(b) below as soon as practicable after the close of
business in Finland on November 28, 2001 (the "Subscription Period Expiration")
and by not later than 6.00 p.m. Finnish time on November 29, 2001 (the
"Determination Time"). Such number shall be the aggregate number of Underwritten
Shares less the Exercised Offered Share Amount. The "Exercised Offered Share
Amount" shall be the aggregate number of Underwritten Shares that (1) have been
subscribed and paid for by Shareholders and ADS Holders, or their respective
transferees of Rights, pursuant to the exercise of the Primary Rights by the
Subscription Period Expiration, and (2) have been
2
determined prior to the Determination Time to be allocated to Shareholders or
ADS Holders pursuant to the exercise of the Secondary Rights, as determined
by the Company or its advisers prior to the Determination Time.
The aggregate number of International Underwritten Shares to be subscribed for
by the International Underwriters (or for which the International Underwriters
shall procure subscribers) pursuant to the International Underwriting Commitment
(the "International Purchased Shares") will be the International Portion of the
Purchased Shares. The aggregate number of U.S. Underwritten Shares to be
subscribed for by the U.S. Underwriters (or for which the U.S. Underwriters
shall procure subscribers) pursuant to the U.S. Underwriting Commitment (the
"U.S. Purchased Shares") will be the U.S. Portion of the Purchased Shares.
The International Underwriters and the U.S. Underwriters are simultaneously
entering into an agreement between international and U.S. syndicates (the
"Agreement Between Syndicates"), which provides, among other things, for the
transfer of Purchased Shares between the two syndicates.
The Company has entered into a deposit agreement dated as of October 12, 1999
(as amended as of April 26, 2001, the "Deposit Agreement") among the Company,
Citibank N.A. as depositary (in such capacity, the "Depositary") and the holders
and beneficial owners from time to time of American depositary receipts (the
"ADRs") issued by the Depositary and evidencing the ADSs. In addition, the
Company has entered into a rights agency agreement dated as of November 9, 2001
(the "ADS Rights Agency Agreement") among the Company and Citibank N.A. as ADS
rights agent (in such capacity, the "ADS Rights Agent") in relation to the
Rights Offering to ADS Holders.
Three forms of prospectus are to be used in connection with the Rights Offering
and the offering by the Underwriters of the Purchased Shares: (i) one to be used
for offering the Offered Shares in the United States, (ii) one to be used for
offering the Offered Shares outside the United States and Finland, and (iii) a
Finnish language prospectus for use in connection with the Rights Offering in
Finland, which prospectus may be supplemented from time to time subsequent to
its initial publication by means of public announcements by the Company in
accordance with Finnish law (such prospectus, as so updated, the "Finnish
Prospectus"). The international form of prospectus will be identical to the U.S.
prospectus except for certain substitute pages and amendments thereto as
mentioned below. References herein to any prospectus, whether in preliminary or
final form and whether as amended or supplemented, shall include the U.S. and
the international versions thereof.
1. The Company represents and warrants to, and agrees with, each of the
International Underwriters that:
(a) A registration statement on Form F-3 (File No. 333--) (the
"Registration Statement", as more fully defined below) in
respect of the Offered Shares and the Share Rights has been
filed with the U.S. Securities and Exchange Commission (the
"Commission"); the Registration Statement and any amendment
thereto, each in the form heretofore delivered to the
Underwriters, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus
contained therein, have been declared effective by the
Commission in such form; and no stop order suspending the
effectiveness
3
of the Registration Statement or any post-effective
amendment thereto, if any, has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus
included in the Registration Statement or filed with the
Commission is hereinafter called a "Preliminary
Prospectus"; the term "Registration Statement" shall
include (i) all exhibits thereto, (ii) the information
contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities Act
of 1933, as amended (the "Act") in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act
to be part of the Registration Statement at the time it was
declared effective and (iii) the documents incorporated by
reference in the prospectus contained in the Registration
Statement at the time the Registration Statement became
effective; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act is hereinafter called
the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form F-3 under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration Statement);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Joint
Global Coordinators expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the
Act or
4
the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;
(d) The Registration Statement conforms, and each of the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Joint
Global Coordinators expressly for use therein;
(e) A registration statement on Form F-6 (File No. 333-10880) in
respect of the ADSs evidencing Offered Shares, if any, issued
pursuant to the exercise of ADS Rights has been filed with the
Commission; such registration statement (including any
amendments thereto) in the form heretofore delivered to the
Underwriters and, excluding exhibits, has been declared
effective by the Commission in such form; no other document
with respect to such registration statement has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each
as amended at the time such part of the registration statement
became effective, being hereinafter called the "ADS
Registration Statement"); and the ADS Registration Statement
when it became effective conformed, and any further amendments
thereto will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did not, as of the applicable
effective date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(f) The Finnish Prospectus has been filed with the Finnish
Financial Supervision Authority (the "FSA"); the Finnish
Prospectus does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter expressly for use
therein;
5
(g) Since the respective dates as of which information is given in
the Prospectus or incorporated by reference therein, except as
otherwise stated therein, (A) there has been no material
adverse change, or a development involving a prospective
material adverse change, in the financial condition, results
of operations or business affairs of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse
Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution
of any kind, declared, paid or made by the Company on its
capital stock;
(h) The Company has been duly incorporated and is validly existing
as a corporation under the laws of Finland, with power and
authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under
the Underwriting Agreements and the ADS Rights Agency
Agreement, and has been duly qualified as a foreign
corporation for the transaction of business under the laws of
each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification,
except where the failure to so qualify would not result in a
Material Adverse Effect;
(i) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) (each a "Subsidiary"
and, collectively, the "Subsidiaries") has been duly
incorporated and is validly existing under the laws of the
jurisdiction of its incorporation with corporate power and
authority to own, lease and operate its property and to
conduct its business as described in the Prospectus and is
duly qualified for the transaction of business under the laws
of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to so qualify would
not result in a Material Adverse Effect;
(j) The Company has an authorized capitalization as set forth in
the Prospectus and all of the issued shares of capital stock
of the Company (including the Offered Shares) and the Share
Rights have been duly and validly authorized and issued, and
conform to the description of the Shares and the Share Rights
contained in the Prospectus; all of the issued shares of
capital stock of the Company (excluding the Offered Shares)
are fully paid and non-assessable and the Offered Shares will,
upon their registration with the Finnish Trade Registry (the
"Trade Registry"), maintained by the Finnish Board of Patents
and Registrations, be fully paid and non-assessable; all of
the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except as set forth in the
Prospectus, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, claim or equity of
any kind; all of the Share Rights will be duly listed and
admitted for trading on the Helsinki Securities and
Derivatives Exchange, Clearing House Limited (the "Helsinki
Exchanges") as from 10.00 a.m., Finnish time, on November 15,
2001 until 6.30 p.m., Finnish time, on November 23, 2001; all
of the Offered Shares will
6
be duly listed and admitted for trading on the Helsinki
Exchanges promptly following the day of their registration
with the Trade Registry; the ADSs evidencing Offered Shares
will be duly admitted for quotation on the Nasdaq National
Market ("Nasdaq"); there are no outstanding securities
convertible into or exchangeable for, or warrants, rights
or options to purchase from the Company or any of its
Subsidiaries, or obligations of the Company or any of its
Subsidiaries to issue Shares or any other class of capital
stock of the Company or any of its Subsidiaries (except as
set forth in the Prospectus under "Management-Employee
Option Rights"); the Offered Shares and the Share Rights to
be issued by the Company may be freely deposited by the
Company with the Depositary against issuance of ADRs
evidencing ADSs and ADS Rights evidencing Share Rights; the
Offered Shares to be issued by the Company are freely
transferable by the Company to or for the account of the
several International Underwriters and (to the extent
described in the Prospectus) the initial purchasers
thereof; there are no restrictions on subsequent transfers
of the Offered Shares, the ADSs evidencing Offered Shares,
the Share Rights or the ADS Rights under the laws of
Finland and of the United States; the Offered Shares, the
ADSs evidencing Offered Shares, the Share Rights and the
ADS Rights conform to, and entitle the holders thereof to
the rights set forth in, the description of the Shares, the
ADSs, the Share Rights and the ADS Rights, respectively,
contained in the Prospectus; and, other than as described
in the Prospectus, there are no restrictions upon the
voting rights of any of the Offered Shares or the ADSs or
the transfer of any of the Offered Shares, the ADSs, the
Share Rights or the ADS Rights pursuant to the Company's
Articles of Association or other governing documents or any
agreement or other instrument to which the Company is a
party or by which it may be bound;
(k) The Deposit Agreement was duly authorized, executed and
delivered by the Company, and, assuming due authorization,
execution and delivery by the Depositary, constitutes a valid
and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; upon issuance by the
Depositary of ADRs evidencing ADSs delivered at the relevant
Time of Delivery (as defined in Section 4 below) against the
deposit of Offered Shares in respect thereof in accordance
with the provisions of the Deposit Agreement, such ADRs with
respect to such Offered Shares will be duly and validly issued
and the persons in whose names the ADRs are registered will be
entitled to the rights specified therein and in the Deposit
Agreement; and the Deposit Agreement and the ADRs conform in
all material respects to the descriptions thereof contained in
the Prospectus;
(l) The ADS Rights Agency Agreement has been duly authorized,
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the ADS Rights Agent,
constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or
affecting creditors' rights and to general
7
equity principles; and the ADS Rights Agency Agreement
conforms in all material respects to the descriptions
thereof contained in the Prospectus;
(m) All consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any
court or governmental agency or body (hereinafter referred to
as a "Governmental Agency") having jurisdiction over the
Company or any of its subsidiaries or any of their properties
or any stock exchange authorities (hereinafter referred to as
"Governmental Authorizations") required for (A) the issue by
the Company of the Prospectus and the Finnish Prospectus, (B)
the Offered Shares, in the form of Shares or ADSs, and the
Share Rights to be duly and validly authorized and issued, (C)
the deposit of Offered Shares and Share Rights with the
Depositary and the issuance of ADSs and ADS Rights,
respectively, in respect thereof, (D) the execution and
delivery by the Company of the Underwriting Agreements, the
Deposit Agreement and the ADS Rights Agency Agreement to be
duly and validly authorized, (E) the consummation by the
Company of the transactions contemplated by the Underwriting
Agreements, the Deposit Agreement and the ADS Rights Agency
Agreement, and (F) the subscription for and distribution of
the Purchased Shares by the Underwriters, have in each case
been obtained or made and are in full force and effect
including but not limited to those required by the FSA, the
Finnish Central Securities Depositary (the "FCSD"), the
Helsinki Exchanges and Nasdaq, except (x) the registration of
the Offered Shares with the Trade Registry and the Company's
shareholders' register maintained by the FCSD, and (y) such
Governmental Authorizations as may be required under state
securities or Blue Sky laws or any laws of jurisdictions
outside Finland and the United States in connection with the
subscription and distribution of the Purchased Shares and ADSs
evidencing Purchased Shares by or for the account of the
Underwriters;
(n) Other than as described in the Prospectus, all dividends and
other distributions declared and payable on the shares of
capital stock of the Company may under the current laws and
regulations of Finland be paid in euros (including any such
dividends or distributions to be paid to the Depositary) that
may be converted into other currencies and may be freely
transferred out of Finland, and such dividends and other
distributions will not be subject to withholding or other
taxes under the laws and regulations of Finland and are
otherwise free and clear of any other tax, withholding or
deduction in Finland and without the necessity of obtaining
any Governmental Authorization in Finland;
(o) The offering of the Rights and the issue of the Offered Shares
by the Company under the Underwriting Agreements, the deposit
of the Share Rights being deposited with the Depositary
against issuance of ADS Rights, the deposit of the Offered
Shares being deposited with the Depositary against issuance of
the ADRs evidencing the ADSs to be delivered at the Time of
Delivery by the Company and the compliance by the Company with
all of the provisions of the Underwriting Agreements, the
Deposit Agreement and the ADS Rights Agency Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture,
8
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject (except for such conflicts, breaches, violations,
defaults, liens, charges or encumbrances that would not,
individually or in the aggregate, result in a Material
Adverse Effect), nor will such action result in any
violation of the provisions of the articles of association,
charter and by-laws (or other governing documents) of the
Company or any statute or any order, rule or regulation of
any Governmental Agency having jurisdiction over the
Company or any of its subsidiaries or any of their
properties;
(p) Neither the Company nor any of its Subsidiaries is (A) in
violation of its respective articles of association, charter,
by-laws or other governing document, any business licenses
issued by any regulatory authority in Finland, any decree or
legally binding declaration (whether governmental, ministerial
or other) issued by any governmental authority in Finland or
any laws or regulations of Finland or any political
subdivision thereof to which the Company or any of its
Subsidiaries is subject or (B) in default in the performance
or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or any Subsidiary is
subject, except as disclosed in the Prospectus and except for
such violations or defaults that would not result in a
Material Adverse Effect;
(q) The Company has complied, and will continue to comply, with
all applicable securities laws or any other applicable law so
as to permit the offering of the Share Rights and ADS Rights
to all Shareholders and ADS Holders, respectively, other than
as set forth in the Prospectus, and the completion of the
Rights Offering as contemplated in the Underwriting
Agreements, the Registration Statement, the Prospectus and the
Finnish Prospectus;
(r) Neither the Company nor any of its subsidiaries has taken nor
will take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Shares, any ADSs
evidencing Offered Shares or the Rights;
(s) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any property of
the Company or any of its Subsidiaries is the subject which,
if determined adversely to the Company or any of its
Subsidiaries, could, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect;
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
9
(t) The Company is not and, after giving effect to the Rights
Offering, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(u) The Company and its Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to
carry on the respective businesses now operated by each of
them, and except as disclosed in the Prospectus, neither the
Company nor any of its Subsidiaries has received any notice or
is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein,
and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or
inadequacy, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect;
(v) The Company and each of its Subsidiaries have all franchises,
permits, authorizations, approvals and orders and other
licenses and concessions of and from all Governmental Agencies
that are necessary to own or lease their other properties and
conduct their businesses as described in the Prospectus
("Governmental Licenses"), and, the Company and its
Subsidiaries are in compliance with the terms and conditions
of the Governmental Licenses, except for such Governmental
Licenses, where the failure to obtain or comply with such
Governmental Licenses would not result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a
Material Adverse Effect; and neither the Company nor any of
its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect;
(w) The Company and its Subsidiaries have good and marketable
title to all real property and good and marketable title to
all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the
Company and its Subsidiaries; and any real property and
buildings held under lease by the Company and its Subsidiaries
are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company and its Subsidiaries;
10
(x) The Company is not, after giving effect to the Rights
Offering, and will not be, a "passive foreign investment
company" within the meaning of the Internal Revenue Code of
1986, as amended;
(y) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes or with any sanctioned entities under the rules of
the Office of Foreign Assets Control;
(z) Each of KPMG Wideri Oy, who have certified certain financial
statements of the Company and its subsidiaries included in the
Prospectus and the Finnish Prospectus, and, to the Company's
best knowledge, KPMG ▇▇▇▇▇▇ ▇▇▇▇▇ Denetim ve Yemlini Mali
Musavirlik A.S., who have certified certain financial
statements of Turkcell Illestisim Hizmetleri AS ("Turkcell")
included in the Prospectus, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Wirtschaftsprufungsgesellschaft Steuerberatungsgesellschaft
mbh, who have certified certain financial statements of Group
3G UMTS Holding GmbH ("Group 3G") included in the Prospectus,
and KPMG Sweden, who have certified certain financial
statements of Across Holding AB ("Across Holding") included in
the Prospectus, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder;
(aa) None of the Company or any of its Subsidiaries has any taxes
payable and past due in any jurisdiction in which it has
operations, except where the failure to pay such taxes would
not have a Material Adverse Effect;
(bb) The Underwriting Agreements have been duly authorized,
executed and delivered by the Company;
(cc) The preparation, distribution and use of the Prospectus has
been approved by the Board of Directors of the Company in
accordance with the Articles of Association of the Company and
Finnish law;
(dd) Except as described in the Prospectus, no stamp or other
issuance or transfer taxes or duties are payable by or on
behalf of the Underwriters (or subscribers of the Purchased
Shares procured by the Underwriters), any subsequent
purchasers from the Underwriters to Finland or to any
political subdivision or taxing authority thereof or therein
in connection with (A) the issue and offer of the Rights by
the Company, (B) the issue and delivery of the Offered Shares
by the Company pursuant to the exercise of Rights, (C) the
deposit with the Depositary of Share Rights against issuance
of ADS Rights in accordance with the terms of the Deposit
Agreement, (D) the deposit with the Depositary of Offered
Shares against issuance of any ADRs evidencing the ADSs in
accordance with the terms of the Deposit Agreement, (E) the
issue and delivery by the Company to the Underwriters (or
subscribers procured by the Underwriters) of the Purchased
Shares in accordance with the terms of the Underwriting
Agreements and in the manner contemplated by the Prospectus,
or (F) the sale and delivery by the Underwriters who are not
Residents of Finland (as defined below) of the Purchased
Shares to purchasers who are not
11
Residents of Finland in accordance with the terms of the
Underwriting Agreements and in the manner contemplated by
the Prospectus. As used herein, a "Resident of Finland"
means a purchaser who is generally liable for tax in
Finland or Finnish branches of foreign credit institutions
or investment firms;
(ee) To the Company's best knowledge, (A) each of Turkcell, Fintur
Holdings B.V., AS Eesti Telekom, UAB Omnitel, Group 3G, Ipse
2000 S.p.A., Xfera Moviles S.A., Lattelekom SIA, AB Lietuvos
Telekomas and Metro One Telecommunications Inc. (each, an
"Associated Company") has been duly organized and is validly
existing under the laws of the jurisdiction of its
incorporation, and (B) except as otherwise disclosed in the
Prospectus, all of the issued and outstanding shares of
capital stock of each Associated Company have been duly
authorized and validly issued, are fully paid and
non-assessable. Except as disclosed in the Prospectus, all of
the shares of capital stock of the Associated Companies are
owned directly or indirectly by the Company, free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(ff) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or
any Subsidiary's principal suppliers, manufacturers, customers
or contractors, which, in either case, could reasonably be
expected to result in a Material Adverse Effect;
(gg) The consolidated financial statements of the Company included
in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the
financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified;
said financial statements (A) have been prepared in conformity
with Finnish generally accepted accounting principles
("Finnish GAAP") applied on a consistent basis throughout the
periods involved, except as otherwise indicated in the
Registration Statement or the Prospectus, (B) include, in the
case of the consolidated financial statements, a
reconciliation describing and quantifying material variations
to generally accepted accounting principles in the United
States ("U.S. GAAP"), and (C) comply with the requirements of
international accounting standards in all material respects.
The selected financial data included in the Registration
Statement and the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement and the Prospectus;
(hh) To the Company's best knowledge, the financial statements of
Turkcell, Group 3G and Across Holding included in the
Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial
position of Turkcell, Group 3G and Across Holding,
respectively,
12
and their respective consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders'
equity and cash flows of Turkcell, Group 3G and Across
Holding, respectively, and their respective consolidated
subsidiaries for the periods specified; and the said financial
statements have been prepared in conformity with, in the case
of Turkcell and Group 3G, U.S. GAAP and, in the case of Across
Holding, generally accepted accounting principles in Sweden,
in each case applied on a consistent basis throughout the
periods involved, except as otherwise indicated in the
Registration Statement and the Prospectus; and
(ii) The pro forma unaudited condensed consolidated financial
information of the Company and Across Holding, and their
subsidiaries, (including the notes thereto) (the
"Sonera/Across Pro Forma Accounts") included in the
Registration Statement and the Prospectus (A) have been
prepared in all material respects in accordance with
applicable requirements of Regulation S-X promulgated under
the Exchange Act, except as otherwise stated therein, and (B)
have been properly computed on the bases described therein;
and the assumptions used in the preparation of the
Sonera/Across Pro Forma Accounts included in the Registration
Statement and the Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
2. (a) Subject to the terms and conditions herein set forth, the
Company agrees to issue to each of the International
Underwriters (or to subscribers procured by) the International
Underwriters, and each of the International Underwriters
agrees, severally and not jointly, to subscribe for (or to
procure subscribers for), at the Subscription Price per
Offered Share, the aggregate number of International Purchased
Shares determined by multiplying the aggregate number of
International Purchased Shares by the percentage set forth
opposite the name of such International Underwriter in
Schedule 1 hereto (to be adjusted by the Joint Global
Coordinators so as to eliminate fractional Shares).
(b) As soon as practicable after the Subscription Period
Expiration and by not later than the Determination Time, the
Company shall notify (in the form of the notice set out in
Schedule 2 to this Agreement) the Joint Global Coordinators,
on behalf of the International Underwriters, and the U.S.
Underwriters in writing of the aggregate number of
Underwritten Shares to be subscribed for by the Underwriters
(or for which the Underwriters shall procure subscribers)
pursuant to the Underwriting Commitments. Such number shall be
the aggregate number of Underwritten Shares less the Exercised
Offered Share Amount and such number stated in the notice from
the Company shall be final and binding on the Company for all
purposes.
(c) If all the Underwritten Shares have been issued pursuant to
the exercise of Rights in the Rights Offering, the obligations
of the International Underwriters under this Agreement shall
terminate.
3. After the Determination Time and the authorization by the Joint Global
Coordinators of the release of the International Purchased Shares, the
several International
13
Underwriters propose to offer the International Purchased Shares for
sale upon the terms and conditions set forth in the Prospectus and
in the Agreement Between Syndicates. Any resale of the International
Purchased Shares by the International Underwriters or any
sub-underwriters appointed by the International Underwriters will
be for their own account and not on behalf of the Company or any
Shareholders or ADS Holders.
4. (a) Delivery of the International Purchased Shares by the Company
will be made by book-entry registration to an account or
accounts specified by the Joint Global Coordinators in the
facilities of the Finnish Book-Entry Securities System. It is
understood and agreed by the parties hereto that no delivery
or transfer of the International Purchased Shares at the Time
of Delivery shall be effective until and unless payment
therefor has been made pursuant hereto and the Joint Global
Coordinators shall have received, on behalf of the
International Underwriters, at the Time of Delivery
certificates and other evidence reasonably satisfactory to it
of the execution of the book-entry registration of the
International Purchased Shares in favor of the International
Underwriters or accounts specified by the International
Underwriters.
(b) Subject to the terms and conditions of this Agreement, the
time and date of the subscription and payment for the
International Purchased Shares shall be no later than 1.00
p.m. Finnish time on December 3, 2001 or such other time and
date as the Joint Global Coordinators and the Company may
agree upon in writing. Such time and date for delivery of the
International Purchased Shares is herein called the "Time of
Delivery". The Company will promptly after the subscription
and payment for the International Purchased Shares effect
their registration with the Trade Registry and their delivery
to the International Underwriters or to subscribers procured
by the International Underwriters. The delivery shall, in any
case, by completed no later than 9 a.m. Finnish time on
December 4, 2001.
(c) The documents to be delivered on the date hereof and at the
Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross-receipt for
the International Purchased Shares and any additional
documents requested by the International Underwriters pursuant
to Section 8 hereof, will be delivered at the offices of White
& Case LLP, Etelaranta 14, Helsinki or at such other place as
shall be agreed upon by the Joint Global Coordinators and the
Company (the "Closing Location"), and the International
Purchased Shares will be delivered as specified in Sections
4(a) and 4(b) above, all on the date hereof or at the Time of
Delivery, as the case may be. A meeting will be held at the
Closing Location at 2.00 p.m. Finnish time on the Finnish
Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered at
the Time of Delivery will be available for review by the
parties hereto. For the purposes of this Agreement, "Finnish
Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in Finland are generally authorized or obligated
by law or executive order to close.
14
5. The Company agrees with each of the International Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second
business day following the execution and delivery of the
Underwriting Agreements, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make
no further amendment or any supplement to the Registration
Statement or Prospectus prior to the Time of Delivery which
shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you copies thereof; to file promptly
all reports required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in
connection with the Rights Offering or the offering and sale
of Purchased Shares by the Underwriters; to advise you,
promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any Prospectus, of the suspension of the
qualification of the Offered Shares or ADSs evidencing Offered
Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly to take such action as may be necessary to ensure
that there are a sufficient number of ADSs registered in
accordance with the terms of the Deposit Agreement to
accommodate the issuance of any ADSs evidencing Offered
Shares;
(c) Promptly from time to time to take such action as you may
reasonably request to qualify the Rights, the Offered Shares
or ADSs evidencing Offered Shares for offering and sale, as
the case may be, under the securities laws of such
jurisdictions as you may request, to comply with such laws so
as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete
the distribution of the Rights, the Offered Shares and ADSs
evidencing Offered Shares, provided that in connection
therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d) Prior to 10.00 a.m. New York City time, or as promptly
thereafter as reasonably possible but in no event later than
3.00 p.m. New York City time, on the New York business day
next succeeding the date of the Underwriting Agreements and
from time to time, to furnish the Underwriters with copies of
15
the Prospectus in London and New York City in such quantities
as the Underwriters may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the
Offered Shares or ADSs evidencing Offered Shares and if at
such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document
and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection
with sales of any of the Offered Shares or ADSs evidencing
Offered Shares at any time nine months or more after the time
of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement
of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and
continuing to and including the date six months after the date
hereof, not to offer, sell, hedge, contract to sell or
otherwise dispose of, except as provided in the Underwriting
Agreements, any Shares, ADSs or any other securities of the
Company that are substantially similar to the Shares, ADSs or
any preference shares, including but not limited to any
securities that are convertible into or exchangeable for any
of the foregoing, or that represent the right to receive
shares of stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing
on the date hereof, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of the
date of the Underwriting Agreements), without your prior
written consent, which consent shall not be unreasonably
withheld;
(g) During a period of two years from the effective date of the
Registration Statement, to furnish to you copies of all
reports or other communications (financial or other) furnished
to shareholders, and to deliver to you (A) as soon as they are
publicly available, copies of any reports and financial
statements
16
furnished to or filed with the Commission or any securities
exchange on which any class of securities of the Company is
listed (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission); and (B) such
publicly available additional information concerning the
business and financial condition of the Company as you may
from time to time reasonably request;
(h) To continue to comply with all applicable securities laws or
any other applicable law so as to permit the offering of the
Share Rights and ADS Rights to all Shareholders and ADS
Holders, respectively, other than as set forth in the
Prospectus, and the completion of the Rights Offering as
contemplated in the Underwriting Agreements, the Registration
Statement, the Prospectus and the Finnish Prospectus;
(i) Not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company or facilitate the sale or resale of
the Offered Shares, any ADSs evidencing Offered Shares or the
Rights;
(j) For up to a period of 24 months from the Time of Delivery, to
use its best efforts to maintain the listing of the Shares
(excluding the Offered Shares) on the main list of the
Helsinki Exchanges, to have the Offered Shares and the Share
Rights admitted to listing on the main list of the Helsinki
Exchanges, to maintain the quotation of the ADSs on Nasdaq,
and to have any new ADSs representing Offered Shares quoted on
Nasdaq; and
(k) To bear and pay any Finnish stamp, transfer, registration,
documentary or similar taxes or duties payable both in
connection with the book registration, issue of the Purchased
Shares to the Underwriters (or to subscribers procured by the
Underwriters) and with their subsequent resale by the
Underwriters (other than Underwriters that are Residents of
Finland) to investors (other than investors who are Residents
of Finland), on or in connection with the issue, distribution
and delivery of such Purchased Shares, including any such
taxes or duties in respect of the crediting (and any
registration and transfers required in connection therewith)
of such Purchased Shares to the accounts of the Underwriters
(or of subscribers procured by the Underwriters), and the
execution and delivery of the Underwriting Agreements and the
Agreement Between Syndicates and any value added tax payable
in connection with the commissions and other amounts payable
by the Company pursuant to the Underwriting Agreements or the
Agreement Between Syndicates.
6. (a) In consideration of their services under this Agreement,
the Company will pay the International Underwriters a
commission of 4 percent of the aggregate Subscription Price
for the International Underwritten Shares, to be divided among
the International Underwriters according to the percentage set
forth opposite the name of each International Underwriter in
Schedule 1 hereto.
17
(b) The commissions referred to in Section 6(a) shall be paid in
euros to the Joint Global Coordinators on behalf of the
Underwriters at the Time of Delivery, such payment being
credited to an account details of which have been notified by
the Joint Global Coordinators to the Company not later than
two business days prior to the Time of Delivery.
(c) The commissions referred to in Section 6(a) shall be paid to
the International Underwriters whether or not the
International Underwriters shall be called upon to purchase
the full number of International Underwritten Shares.
7. The Company covenants and agrees with the several International
Underwriters that the Company will pay or cause to be paid certain
expenses in connection with the registration of the Offered Shares, the
ADSs and the Rights under the Act and incident to the performance of
its obligations under the Underwriting Agreements, the Deposit
Agreement and the ADS Rights Agency Agreement, as follows: (i) the
fees, disbursements and expenses of the Company's counsel, accountants
and other advisors in connection with the registration of the Offered
Shares, the ADSs and the Rights under the Act and all other expenses in
connection with the preparation and filing of the Registration
Statement, the Prospectus, the Finnish Prospectus, any additional
marketing materials for use in Finland and amendments and supplements
thereto; (ii) the cost of printing or producing the Underwriting
Agreements, the Agreement Between Syndicates, the ADS Rights Agency
Agreement, the Blue Sky Memorandum, closing documents (including
compilations thereof) and any other documents in connection with the
Rights Offering or the offering and sale of Purchased Shares by the
Underwriters; (iii) all expenses in connection with the qualification
of the Rights, the Offered Shares and the ADSs for offering under the
securities laws of any jurisdiction, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any Blue Sky survey; (iv) all
expenses and taxes arising as a result of the deposit by the Company of
Offered Shares with the Depositary and the issuance and delivery of the
ADRs evidencing ADSs in exchange therefor by the Depositary, of the
issue and delivery of the Purchased Shares by the Company to or for the
account of the Underwriters (or subscribers procured by the
Underwriters), of the sale and delivery outside of Finland of the
Purchased Shares by the Underwriters to each other, and of the initial
purchasers thereof in the manner contemplated under the Underwriting
Agreements, including, in any such case, any amounts payable as
provided in Section 5(k) hereof, (v) all fees and expenses in
connection with the listing of the Offered Shares and the Share Rights
on the Helsinki Exchanges and the quotation of the ADSs evidencing
Offered Shares on Nasdaq; (vi) the fees, disbursements and expenses of
the Underwriters' international and Finnish counsels, subject to a cap
on such fees of $350,000 excluding any taxes and disbursements (and
further excluding any amounts payable under paragraph (iii) above and
paragraph (vii) below); (vii) the filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the Rights Offering; (viii) to the Joint
Global Coordinators, for the account of the several Underwriters, the
reasonable costs of information meetings and "roadshows" organized for
the Rights Offering incurred by the Underwriters in connection with the
transactions contemplated hereby including reimbursement of reasonable
out-of-pocket expenses; (ix) the fees and expenses
18
(including fees and disbursements of counsel), if any, of the
Depositary and any custodian appointed under the Deposit Agreement,
other than the fees and expenses to be paid by holders of ADRs; (x)
the fees and expenses of the Authorized Agent (as defined in Section 15
hereof); (xi) the cost of preparing any stock certificates or ADRs;
and (xii) the cost and charges of any transfer agent or registrar. It
is understood, however, that, except as provided in this Section, and
Sections 5, 9 and 12 hereof, the Underwriters will pay all of their own
costs and expenses, including stock transfer taxes (except as may be
imposed by Finland or any political subdivision or taxing authority
thereof or therein, other than any such stock transfer taxes imposed
as a result of transfers of Shares by an Underwriter that is not a
Resident of Finland to a purchaser that is not a Resident of Finland)
on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
8. The obligations of the International Underwriters hereunder, as to the
International Purchased Shares to be delivered at the Time of Delivery,
shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Each of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, U.S. counsel
for the International Underwriters (with respect to matters of
New York or U.S. Federal law), and ▇▇▇▇▇▇▇▇ & Wist, Finnish
counsel for the International Underwriters (with respect to
matters of Finnish law), shall have furnished to you such
written opinions, to be dated as of the date hereof and as of
the Time of Delivery, with respect to the matters covered in
paragraphs (i), (ii), (viii), (ix), (x), (xvii) and (xviii) in
subsection (c) below as well as such others as you may
reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) White & Case LLP, U.S. and Finnish counsel for the Company,
shall have furnished to you their written opinions, to be
dated as of the date hereof and as of the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Underwriting Agreements have been duly
authorized, executed and delivered by the Company;
19
(ii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes
a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and similar
laws of general applicability relating or affecting
creditors' rights generally and to general principles
of equity; and the statements set forth under the
heading "Description of American Depositary Shares"
in the Prospectus, insofar as such statements purport
to summarize certain provisions of the Deposit
Agreement, fairly summarize, in all material
respects, such provisions;
(iii) The ADS Rights Agency Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency,
reorganization and similar laws of general
applicability relating or affecting creditors' rights
generally and to general principles of equity;
(iv) Upon due issuance by the Depositary of the ADS Rights
evidencing Share Rights against the deposit of such
Share Rights in accordance with the provisions of the
Deposit Agreement, such ADS Rights with respect to
such Share Rights will be duly and validly issued and
the person in whose name the ADS Rights are
registered will be entitled to the rights specified
therein and in the Deposit Agreement;
(v) Upon due issuance by the Depositary of the ADRs
evidencing ADSs being delivered at the Time of
Delivery against the deposit of the Offered Shares in
respect thereof in accordance with the provisions of
the Deposit Agreement, such ADRs with respect to such
Shares will be duly and validly issued and the person
in whose name the ADRs are registered will be
entitled to the rights specified therein and in the
Deposit Agreement;
(vi) Under the laws of the State of New York relating to
personal jurisdiction, the irrevocable submission by
the Company, pursuant to Section 15 of this
Agreement, Section 15 of the U.S. Underwriting
Agreement, Section 7.4 of the Depositary Agreement
and Section 16 of the ADS Rights Agency Agreement, to
the personal jurisdiction of any state or federal
court located in the Borough of Manhattan, The City
of New York, New York (each a "New York Court") in
any action arising out of or relating to this
Agreement, the U.S. Underwriting Agreement, the
Deposit Agreement, the ADS Rights Agency Agreement or
the transactions contemplated hereby or thereby, as
the case may be, the irrevocable waiver by the
Company of any objection to the venue of a proceeding
in any such court, and the irrevocable appointment by
the Authorized Agent (as defined herein) as its
authorized agent for the purpose described in Section
15 hereof, are each valid and binding upon the
Company; and service of process effected on such
agent in the manner set forth in Section 15 hereof,
Section 15 of the U.S.
20
Underwriting Agreement, Section 7.4 of the Deposit
Agreement and Section 16 of the ADS Rights Agency
Agreement, will each be effective to confer valid
personal jurisdiction over the Company;
(vii) The offering of the Rights and the issue of the
Offered Shares by the Company under the Underwriting
Agreements, the deposit of the Share Rights being
deposited with the Depositary against issuance of
ADS Rights, the deposit of the Offered Shares being
deposited with the Depositary against issuance of
ADRs evidencing ADSs to be delivered at the Time of
Delivery by the Company, the compliance by the
Company with all of the provisions of the
Underwriting Agreements, the Deposit Agreement and
the ADS Rights Agency Agreement and the consummation
of the transactions herein and therein contemplated
will not result in any violation of, and do not and
will not conflict with, any existing applicable law,
rule or regulation of the Republic of Finland, the
United States or the State of New York;
(viii) No Governmental Authorization of Finland, the United
States or the State of New York is required for (A)
the issue by the Company of the Prospectus and the
Finnish Prospectus, (B) the Offered Shares, in the
form of Shares or ADSs, and the Share Rights to be
duly and validly authorized and issued, (C) the
deposit of Offered Shares and Share Rights with the
Depositary and the issuance of ADSs and ADS Rights,
respectively, in respect thereof, (D) the execution
and delivery by the Company of the Underwriting
Agreements, the Deposit Agreement and the ADS Rights
Agency Agreement to be duly and validly authorized,
(E) the consummation by the Company of the
transactions contemplated by the Underwriting
Agreements, the Deposit Agreement and the ADS Rights
Agency Agreement, or (F) the subscription and
distribution by the Underwriters of the Purchased
Shares, except (x) the registration of the Offered
Shares with the Trade Registry and the Company's
shareholders' register maintained by the FCSD,
(y) such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the subscription and distribution of the
Purchased Shares, in the form of Shares or ADSs, by
or for the account of the Underwriters, and (z) such
Governmental Authorizations which have been duly
obtained and are in full force and effect;
(ix) The statements set forth in the Prospectus under the
captions "Description of Shares and Share Capital"
and "Description of American Depositary Shares",
insofar as they purport to constitute a summary of
the terms of the Shares and the ADSs, and under the
captions "Business-Regulation", "Description of
Shares and Share Capital", "Description of American
Depositary Shares", "Memorandum and Articles of
Association", "The Finnish Securities Market",
"Taxation" and "Underwriting", insofar as they
purport to summarize the provisions of the laws and
documents referred to
21
therein, fairly summarize such provisions and
documents in all material respects;
(x) The Company is not an "investment company", as such
term is defined in the Investment Company Act;
(xi) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Finland,
with corporate power and authority to own, lease and
operate its properties and conduct its business as
described in the Prospectus, to enter into and
perform its obligations under the Underwriting
Agreements, the Deposit Agreement and the ADS Rights
Agency Agreement and to file the Registration
Statement and the ADS Registration Statement;
(xii) The Company has an authorized share capital as set
forth in the Prospectus and all of the issued shares
of capital stock of the Company (including the
Offered Shares) and the Share Rights have been duly
and validly authorized and issued; all of the issued
shares of capital stock of the Company (excluding the
Offered Shares) are fully paid and non-assessable and
the Offered Shares will, upon their registration with
the Trade Registry, be fully paid and non-assessable;
other than as described in the Prospectus, there are
no restrictions imposed by Finnish law on subsequent
transfers of the Offered Shares or the Share Rights;
and the Offered Shares and the Share Rights conform
to, and entitle the holders thereof to the rights set
forth in, the description of the Shares in the
Prospectus under the caption "Description of Shares
and Share Capital" and the description of the Share
Rights in the Prospectus under the caption "The
Rights Offering", respectively;
(xiii) Insofar as matters of Finnish law are concerned, the
Registration Statement and the ADS Registration
Statement, and the filing of the Registration
Statement and the ADS Registration Statement with the
Commission, have been duly authorized by and on
behalf of the Company; and each of the Registration
Statement and the ADS Registration Statement has been
duly executed pursuant to such authorization by and
on behalf of the Company;
(xiv) The Company's agreement to the choice of law
provisions set forth in Section 15 hereof, in Section
15 of the U.S. Underwriting Agreement, in Section 7.6
of the Deposit Agreement and in Section 16 of the ADS
Rights Agency Agreement will be recognized by the
courts of Finland; the Company can sue and be sued in
its own name under the laws of Finland; and a
judgment obtained in a New York Court arising out of
or in relation to the obligations of the Company
under either this Agreement, the U.S. Underwriting
Agreement, the Deposit Agreement or the ADS Rights
Agency Agreement would be enforceable against the
Company in the courts of Finland;
22
(xv) Other than as described in the Prospectus, all
dividends and other distributions declared and
payable on the shares of capital stock of the Company
may under the current laws and regulations of Finland
be paid by the Company to the registered holders
thereof in euros (including any such dividends or
distributions to be paid to the Depositary) that may
be converted into other currencies and may be freely
transferred out of Finland, and all such dividends
and other distributions will not be subject to
withholding or other taxes under the laws and
regulations of Finland and are otherwise free and
clear of any other tax, withholding or deduction in
Finland and without the necessity of obtaining any
Governmental Authorization in Finland;
(xvi) Under the laws of Finland, (A) the Underwriters would
be permitted to commence an action or proceedings
against the Company in the competent Finnish courts
based upon either of the Underwriting Agreements, (B)
the Depositary and holders of ADRs issued under the
Deposit Agreement would be permitted to commence an
action or proceedings against the Company in the
competent Finnish courts based upon the Deposit
Agreement, and (C) such courts in Finland would
accept jurisdiction over any such action or
proceedings;
(xvii) In order to ensure the legality, validity,
enforceability or admissibility in evidence of either
of the Underwriting Agreements, the Deposit Agreement
or the ADS Rights Agency Agreement, it is not
necessary that any document be filed, recorded or
enrolled with any Governmental Agency of Finland;
(xviii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by
the Company prior to the Time of Delivery (other than
the financial statements and related schedules
therein, as to which such counsel need express no
opinion) comply as to form in all material respects
with the requirements of the Act and the rules and
regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection
(ix) of this Section 8(c), they have no reason to
believe that, as of its effective date, the
Registration Statement or any further amendment
thereto made by the Company prior to such Time of
Delivery (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion) contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or
any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than
the financial statements and related schedules
therein, as to which such counsel need express no
opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to
make the statements therein, in the light of
23
the circumstances under which they were made, not
misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made
by the Company prior to the Time of Delivery (other
than the financial statements and related schedules
therein, as to which such counsel need express no
opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
In addition, such counsel shall state that they are not aware
of any facts or circumstances that would cause them to believe
that the indemnification and contribution provisions set forth
in Section 9 hereof contravene the public policy or laws of
Finland;
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President, Legal Affairs, of the Company,
shall have furnished to you her written opinions, to be dated
as of the date hereof and as of the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has an authorized capitalization as set
forth in the Prospectus and all of the issued shares
of capital stock of the Company (including the
Offered Shares) and the Share Rights have been duly
and validly authorized and issued; all of the issued
shares of capital stock of the Company (excluding the
Offered Shares) are fully paid and non-assessable and
the Offered Shares will, upon their registration with
the Trade Registry, be fully paid and non-assessable;
there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options
to purchase from the Company or any of its
Subsidiaries, or obligations of the Company or any of
its Subsidiaries to issue the Shares or any other
class of capital stock of the Company or any of its
Subsidiaries (except as set forth in the Prospectus
under "Management-Employee Option Rights"); the
Offered Shares and the Share Rights to be issued by
the Company may be freely deposited by the Company
with the Depositary against issuance of ADRs
evidencing ADSs and ADS Rights evidencing Share
Rights; the Offered Shares to be issued by the
Company are freely transferable by the Company to or
for the account of the several International
Underwriters and (to the extent described in the
Prospectus) the initial purchasers thereof; there are
no restrictions on subsequent transfers of the
Offered Shares, the ADSs evidencing Offered Shares,
the Share Rights or the ADS Rights under the laws of
Finland and of the United States; the Offered Shares,
the ADSs evidencing Offered Shares, the Share Rights
and the ADS Rights conform to, and entitle the
holders thereof to the rights set forth in, the
description of the Shares, the ADSs, the Share Rights
and the ADS Rights, respectively, contained in the
Prospectus; and, other than as described in the
Prospectus, there are no restrictions upon the voting
rights of the Offered Shares or the ADSs or the
transfer of any of the Offered Shares, the ADSs, the
Share
24
Rights or the ADS Rights pursuant to the
Company's Articles of Association or other governing
documents or any agreement or other instrument to
which the Company is a party or by which it may be
bound;
(ii) Each Subsidiary of the Company that is organized
under the laws of Finland has been duly organized and
is validly existing as a corporation under the laws
of Finland; and all of the issued shares of capital
stock of each such Subsidiary have been duly
authorized and validly issued, are fully paid and
non-assessable, and (except as otherwise set forth in
the Prospectus) are owned directly or indirectly by
the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity
(such counsel being entitled to rely in respect of
matters of fact upon certificates of officers of the
Company or its Subsidiaries, provided that such
counsel shall state that they believe that both you
and they are justified in relying upon such opinions
and certificates);
(iii) The Company and each of its Subsidiaries have all
Governmental Licenses that are necessary to own or
lease their properties and conduct their businesses
as described in the Prospectus; and, to the best of
such counsel's knowledge, the Company and its
Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except
for such Governmental Licenses the failure to obtain
which will not have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such
Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither
the Company nor any of its Subsidiaries has received
any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses
which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect;
(iv) Neither the Company nor any of its Subsidiaries is
(A) in violation of its articles of association,
charter, by-laws or other governing documents, any
business licenses issued by any regulatory authority
in Finland, any decree or legally binding declaration
(whether governmental, ministerial or other) issued
by any governmental authority in Finland or any laws
or regulations of Finland or any political
subdivision thereof to which the Company or any of
its Subsidiaries is subject or (B) to the best
knowledge of such counsel, in default in the
performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or
instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or
assets of the Company or any Subsidiary is subject
25
except as disclosed in the Prospectus and except for
such violations or defaults that would not result in
a Material Adverse Effect;
(v) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in
good standing under the laws of each other
jurisdiction in which it owns or leases properties or
conducts any business so as to require such
qualification, except to the extent that the failure
to do so would not result in a Material Adverse
Effect (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact
upon certificates of officers of the Company,
provided that such counsel shall state that they
believe that both you and they are justified in
relying upon such opinions and certificates);
(vi) Each Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation
with corporate power and authority to own, lease and
operate its properties and conduct its business as
described in the Prospectus and duly qualified as a
foreign corporation to transact business in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure so to qualify would not result in a Material
Adverse Effect and except as otherwise set forth in
the Prospectus; and all of the issued shares of
capital stock of each such Subsidiary have been duly
authorized and validly issued, are fully paid and
non-assessable, and (except as otherwise set forth in
the Prospectus) are owned by the Company, directly or
through one or more of its subsidiaries, free and
clear of any liens, encumbrances, equities or claims
of any kind;
(vii) Each of the Registration Statement and the ADS
Registration Statement has been signed for and on
behalf of the Company by officers thereunto duly
authorized and by directors duly elected or
appointed;
(viii) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its
subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
could individually or in the aggregate reasonably be
expected to result in a Material Adverse Effect; and,
to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(ix) The Depositary will not, absent negligence, bad faith
or breach of contract and general principles of
agency, be subject to any potential liability under
the laws of Finland for taking the actions
contemplated in the Deposit Agreement;
26
(x) The offering of the Rights and the issue of the
Offered Shares by the Company under the Underwriting
Agreements, the deposit of the Share Rights being
deposited with the Depositary against issuance of ADS
Rights, the deposit of the Offered Shares being
deposited with the Depositary against issuance of the
ADRs evidencing the ADSs to be delivered at the Time
of Delivery by the Company and the compliance by the
Company with all of the provisions of the
Underwriting Agreements, the Deposit Agreement and
the ADS Rights Agency Agreement and the consummation
of the transactions herein and therein contemplated
will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject (except for such conflicts,
breaches, violations, defaults, liens, charges or
encumbrances that would not, individually or in the
aggregate, result in a Material Adverse Effect), nor
will such action result in any violation of the
provisions of the articles of association, charter
and by-laws (or other governing documents) of the
Company or any statute or any order, rule or
regulation of any Governmental Agency having
jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(xi) Nothing in the Deposit Agreement or the form of
receipt attached thereto misstates the rights of the
holders of the ADSs in respect of the deposited
securities and there is nothing contained in the laws
of Finland, the articles of association of the
Company, or in any agreement to which the Company is
a party and bound which prevents the exercise of any
right or the enjoyment of any benefit to which an ADS
holder is entitled as a result of owning an ADS
issued under the terms of the Deposit Agreement and
which has not been disclosed in the Deposit Agreement
and the form of receipt attached to the Deposit
Agreement;
(xii) There are no reporting obligations under Finnish law
on the ADS holder that have not been disclosed in the
Deposit Agreement, the form of receipt attached to
the Deposit Agreement or the Prospectus;
(xiii) The Depositary will not be deemed to be authorized to
exercise any discretion when voting in accordance
with the terms set forth in Section 4.10 of the
Deposit Agreement under Finnish law and the
Depositary will not (absent negligence, bad faith or
breach of contract, and general principles of agency)
be subject to any potential liability under Finnish
law for losses arising from the exercise of the
voting arrangements set forth in Section 4.10 of the
Deposit Agreement; and
(xiv) Except as described in the Prospectus, the Depositary
will not be subject to any reporting or similar
requirements under Finnish law with
27
respect to the ADRs or the shares underlying such
ADRs by virtue of it being a party to the Deposit
Agreement and exercising its rights and performing
its obligations thereunder.
In giving such opinion, such counsel may state that with
respect to all matters of United States federal and New York
law she has relied upon the opinions of United States counsel
for the Company delivered pursuant to subsection (c) of this
Section 8.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in-house counsel to the Depositary, shall have
furnished to you her written opinions, to be dated as of the
date hereof and as of the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Deposit Agreement and the ADS Rights Agency
Agreement have been duly authorized, executed and
delivered by the Depositary and constitute valid and
legally binding obligations of the Depositary,
enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting
creditors' rights and to general equity principles;
and
(ii) The ADRs and ADS Rights issued under and in
accordance with the provisions of the Deposit
Agreement will entitle the holders thereof to the
rights specified therein and in the Deposit
Agreement, assuming that (A) the Offered Shares
represented by the ADSs which are in turn evidenced
by the ADRs and the Share Rights underlying the ADS
Rights have been duly authorized and validly issued
and are fully paid and non-assessable and that any
pre-emptive rights with respect to the Offered Shares
have been validly waived or exercised, and (B) such
Offered Shares and Share Rights have been duly
deposited with Citibank N.A., as custodian, in each
case under and in accordance with all applicable laws
and regulations.
(f) (A) On the date of the Prospectus at a time prior to the
execution of the Underwriting Agreements, (B) at 9.30 a.m. New
York time on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to
the date of the Underwriting Agreements, and (C) at the Time
of Delivery, (i) KPMG Wideri Oy shall have furnished to you a
letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I(a) hereto (the executed copy of
the letter delivered prior to the execution of the
Underwriting Agreements is attached as ▇▇▇▇▇ ▇(a)-1 hereto and
a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration
Statement and as of the Time of Delivery is attached as Annex
I(a)-2 hereto); (ii) KPMG ▇▇▇▇▇▇ ▇▇▇▇▇ Denetim ve Yemlini Mali
Musavirlik A.S. shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set
forth in Annex I(b) hereto (the executed copy of the letter
delivered prior to the execution of the Underwriting
Agreements is attached as Annex I(b)-1
28
hereto and a draft of the form of letter to be delivered on
the effective date of any post-effective amendment to the
Registration Statement and as of the Time of Delivery is
attached as Annex I(b)-2 hereto); (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Wirtschaftsprufungsgesellschaft Steuerberatungsgesellschaft
mbh shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in
Annex I(c) hereto (the executed copy of the letter delivered
prior to the execution of the Underwriting Agreements is
attached as Annex I(c)-1 hereto and a draft of the form of
letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as
of the Time of Delivery is attached as Annex I(c)-2 hereto);
and (iv) KPMG Sweden shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set
forth in Annex I(d) hereto (the executed copy of the letter
delivered prior to the execution of the Underwriting
Agreements is attached as Annex I(d)-1 hereto and a draft
of the form of letter to be delivered on the effective date
of any post-effective amendment to the Registration Statement
and as of the Time of Delivery is attached as Annex I(d)-2
hereto);
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, except, as described
in the Prospectus, for any downgrading pursuant to an earlier
announcement by any such organization that it has its rating
of the Company's securities under review, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) any material adverse change, or
development involving a prospective material adverse change in
the financial condition, results of operations or business
affairs of the Company and its subsidiaries considered as one
enterprise; (ii) a suspension or material limitation in
trading in securities generally on the Helsinki Exchanges, the
New York Stock Exchange and/or Nasdaq; (iii) a suspension or
material limitation in trading in the Company's securities on
the Helsinki Exchanges or Nasdaq; (iv) a general moratorium on
commercial banking activities in New York, London or Finland
declared by the relevant authorities; (v) a material
disruption in commercial banking or securities settlement or
clearance services in the United States, the United Kingdom or
Finland; (vi) a material adverse change or an official
announcement involving a prospective material adverse change
in Finnish taxation affecting the Company, the Shares, the
ADSs, the Rights or the transfer thereof; (vii) the imposition
of exchange controls by Finland, the United States or the
United Kingdom; (viii) any material change in the rates of
exchange between the euro and any other currency; (ix) the
outbreak or escalation of hostilities involving the United
States, the United Kingdom or Finland or the declaration by
the United States, the United Kingdom or Finland of a national
emergency or war; or (x) the occurrence of any other
29
calamity or crisis or any material adverse change in
financial, political or economic conditions in the United
States, the United Kingdom, Finland or internationally, if the
effect of any such event specified in clause (v), (vii),
(viii), (ix) or (x) in the reasonable judgment of the Joint
Global Coordinators makes it impracticable to market the
Offered Shares, the ADSs or the Rights or to enforce contracts
for the sale of the Offered Shares, the ADSs or the Rights;
(i) The Shares (excluding the Offered Shares) shall continue to
be, and the Offered Shares and the Share Rights shall have
been admitted to be, duly listed on the main list of the
Helsinki Exchanges and the ADSs shall continue to be, and any
new ADSs representing Offered Shares, shall have been admitted
to be, duly quoted on Nasdaq;
(j) The Depositary shall have furnished or caused to be furnished
to you at the Time of Delivery certificates satisfactory to
you evidencing the deposit with it of the Offered Shares being
so deposited against issuance of ADRs evidencing the ADSs to
be delivered by the Company at the Time of Delivery, and the
execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(k) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the
Company satisfactory to you as to the accuracy of the
representations and warranties of the Company in the
Underwriting Agreements at and as of the Time of Delivery, as
to the performance by the Company of all its obligations under
the Underwriting Agreements to be performed at or prior to the
Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or
caused to be furnished certificates as to the matters set
forth in subsections (a) and (h) of this Section, and as to
such other matters as you may reasonably request; and
(l) The Majority Shareholder shall have unconditionally and
irrevocably exercised in full prior to the Subscription Period
Expiration the Primary Share Rights offered to it and shall
have paid the Subscription Price therefor.
9. (a) The Company will indemnify and hold harmless each
International Underwriter against any losses, claims, damages
or liabilities to which such International Underwriter may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the ADS
Registration Statement, the Finnish Prospectus or the
Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
will reimburse each International Underwriter for any legal or
other expenses reasonably incurred by such International
Underwriter in connection with investigating or defending any
30
such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the ADS
Registration Statement, the Finnish Prospectus or the
Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to
the Company by any International Underwriter through the Joint
Global Coordinators expressly for use therein.
(b) Each International Underwriter will indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the ADS Registration Statement,
the Finnish Prospectus or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement, the
ADS Registration Statement, the Finnish Prospectus or the
Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to
the Company by such International Underwriter through the
Joint Global Coordinators expressly for use therein and will
reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of
any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party
(which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the
defense thereof other than
31
reasonable costs of investigation. In no event shall the
indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying
party shall be liable for any settlement or compromise of or
consent to the entry of any judgment with respect to any
proceeding, action or claim, effected without its prior
written consent, but if such settlement, compromise or
judgment is made with such consent, the indemnifying party
agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement, compromise
or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does
not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the International
Underwriters on the other from the offering of the Shares and
ADSs. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the
Company on the one hand and the International Underwriters on
the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by
the Company on the one hand and the International Underwriters
on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares and
ADSs purchased under this Agreement (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
International Underwriters with respect to the Shares and ADSs
purchased under this Agreement, in each case as set forth in
the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state
32
a material fact relates to information supplied by the Company
on the one hand or the International Underwriters on the other
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Company and the International
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined
by pro rata allocation (even if the International
Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account
of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
subsection (d), no International Underwriter shall be required
to contribute any amount in excess of the amount by which the
total price at which the Shares and ADSs underwritten by it
and distributed to the public were offered to the public
exceeds the amount of any damages which such International
Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The International
Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the International
Underwriters under this Section 9 shall be in addition to any
liability which the Company and the International Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company
or any International Underwriter, as applicable, in each case
within the meaning of the Act; and the obligations of the
Company and any International Underwriter under this Section 9
shall be in addition to any liability which any such party may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named
in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the
Company or any International Underwriter, in each case, within
the meaning of the Act.
10. (a) If any International Underwriter shall default in its
obligation to subscribe for the International Purchased Shares
which it has agreed to subscribe for hereunder at the Time of
Delivery, you may in your discretion arrange for you or
another party or other parties to subscribe for such
International Purchased Shares on the terms contained herein.
If within thirty-six hours after such default by any
International Underwriter you do not arrange for the
subscription of such International Purchased Shares, then the
Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties
satisfactory to you to subscribe for such
33
International Purchased Shares on such terms. In the event
that, within the respective prescribed periods, you notify
the Company that you have so arranged for the subscription
of such International Purchased Shares, or the Company
notifies you that they have so arranged for the subscription
of such International Purchased Shares, you or the Company
shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made
necessary. The term "International Underwriter" as used in
this Agreement shall include any person substituted under
this Section with like effect as if such person had
originally been a party to this Agreement with respect to such
International Purchased Shares.
(b) If, after giving effect to any arrangements for the
subscription for the International Purchased Shares of a
defaulting International Underwriter or International
Underwriters by you and the Company as provided in subsection
(a) above, the aggregate number of such International
Purchased Shares which remains unsubscribed for does not
exceed one-eleventh of the aggregate number of all of the
International Purchased Shares to be subscribed for at the
Time of Delivery, then the Company shall have the right to
require each non-defaulting International Underwriter to
subscribe for the number of International Purchased Shares
which the International Underwriter agreed to subscribe for
hereunder at the Time of Delivery and, in addition, to require
each non-defaulting International Underwriter to subscribe for
its pro rata share (based on the number of International
Purchased Shares which such International Underwriter agreed
to subscribe for hereunder) of the International Purchased
Shares of such defaulting International Underwriter or
International Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
International Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
subscription for the International Purchased Shares of a
defaulting International Underwriter or International
Underwriters by you and the Company as provided in subsection
(a) above, the aggregate number of such International
Purchased Shares which remains unsubscribed for exceeds
one-eleventh of the aggregate number of all of the
International Purchased Shares to be subscribed for at the
Time of Delivery, or if the Company shall not exercise the
right described in subsection (b) above to require
non-defaulting International Underwriters to subscribe for the
International Purchased Shares of a defaulting International
Underwriter or International Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of
any non-defaulting International Underwriter or the Company,
except for the expenses to be borne by the Company and the
International Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof;
but nothing herein shall relieve a defaulting International
Underwriter from liability for its default.
34
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several International
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any International
Underwriter or any controlling person of any International Underwriter,
or the Company, or any officer or director or controlling person of the
Company, and shall survive the completion of the Rights Offering and
the offering and sale of the International Purchased Shares by the
International Underwriters and the delivery of and payment for the
Offered Shares and ADSs.
12. If this Agreement shall be terminated pursuant to Section 10 hereof or
if for any other reason any Offered Shares or ADSs are not delivered by
or on behalf of the Company as provided herein, the Company shall not
be under any liability to any International Underwriter except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
International Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf
of any International Underwriter made or given by you jointly or by
▇▇▇▇▇▇▇ ▇▇▇▇▇ International or Deutsche Bank AG London alone on behalf
of you as the Joint Global Coordinators.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the International Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the Joint Global
Coordinators as the representatives, at (A) ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, Peterborough Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
Attention: Equity Capital Markets, and (B) Deutsche Bank AG London,
Winchester House, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
Attention: Equity Capital Markets; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Secretary. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the International Underwriters and the Company and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company or any International
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Shares or ADSs from any International Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company brought by any International
Underwriter or by any person who controls any International Underwriter
arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any New York court, (ii)
waives, to the fullest extent it may effectively do so, any objection
which it may now or hereafter have to the laying of venue of any such
proceeding, and (iii) submits to the non-exclusive jurisdiction of such
courts in any such suit,
35
action or proceeding. The Company irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled
(including sovereign immunity, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby which is instituted in any New York
Court or in any competent court in Finland. The Company has appointed
Sonera Corporation U.S., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. Suite 950,
Washington D.C. 2001S, as its authorized agent (the "Authorized Agent")
upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which
may be instituted in any New York Court by any International
Underwriter or by any person who controls any International
Underwriter, expressly consents to the jurisdiction of any such court
in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such
appointment shall be irrevocable. The Company represents and warrants
that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect,
effective service of process upon the Company.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment
currency") other than United States dollars, the Company will indemnify
each International Underwriter against any loss incurred by such
International Underwriter as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment
or order and (ii) the rate of exchange at which an International
Underwriter is able to purchase United States dollars with the amount
of the judgment currency actually received by such International
Underwriter. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force
and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into
United States dollars.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, one for the Company, one for each of the
International Underwriters and
36
one for each counsel, and upon the acceptance hereof by you, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
International Underwriters and the Company.
Very truly yours,
SONERA CORPORATION
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
Accepted as of the date hereof
at London, England
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: ________________________
Name:
Title:
DEUTSCHE BANK AG LONDON
By: ________________________
Name:
Title:
NORDEA SECURITIES CORPORATE FINANCE OY
By: ________________________
Name:
Title:
MANDATUM & CO LTD.
By: ________________________
Name:
Title:
37
SCHEDULE 1
UNDERWRITING COMMITMENTS
INTERNATIONAL UNDERWRITERS COMMITMENT
-------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International 35.00 percent
Deutsche Bank AG London 35.00 percent
Nordea Securities Corporate Finance Oy 20.40 percent
Mandatum & Co Ltd. 9.60 percent
38
SCHEDULE 2
FORM OF NOTICE FROM COMPANY TO UNDERWRITERS
[On the letterhead of
Sonera Corporation]
November 9, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Deutsche Bank AG London
As representatives of the several International Underwriters
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Deutsche Bank AG London
As U.S. Underwriters
c/o Goldman ▇▇▇▇▇ International
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
and
Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
Reference is made to the International Underwriting Agreement and the U.S.
Underwriting Agreement, each dated November 9, 2001, entered into by us
(together the "Underwriting Agreements"). Unless otherwise defined in this
letter, capitalized terms defined in the Underwriting Agreements shall have
the same meanings in this letter.
We hereby give you notice, in accordance with Clause 2(b) of each of the
Underwriting Agreements, that the aggregate number of Underwritten Shares to
be subscribed for by the Underwriters (or for which the Underwriters shall
procure subscribers) pursuant to the Underwriting Commitments is [ ] (the
"Purchased Shares"). This is based on the Exercised Offered Share Amount of
[ ]. The number of Purchased Shares set out in this letter shall be final and
binding on the Company for all purposes.
39
Very truly yours,
SONERA CORPORATION
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
40