Exhibit 99.8
EXCHANGE AGENCY AGREEMENT
This Exchange Agency Agreement (this Exchange Agency Agreement, together
with the Schedules hereto, in each case as amended and supplemented from time to
time, the "AGREEMENT") is made as of SEPTEMBER 30, 2002, by and between TELIA
AB, a company organized under the laws of The Kingdom of Sweden ("TELIA" or the
"COMPANY"), and CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America (the "U.S. EXCHANGE
AGENT").
W I T N E S S E T H T H A T:
WHEREAS, the Company and Citibank, N.A., as depositary (the "DEPOSITARY"),
intend to enter into a deposit agreement substantially in the form of the draft
thereof attached as Exhibit (a) to the Registration Statement on Form F-6 (Reg.
No. 333-________) (the "DEPOSIT AGREEMENT"), filed with the U.S. Securities and
Exchange Commission (the "SEC") on Monday, September 30, 2002 (the "FORM F-6")
which will provide, inter alia, for the issuance of American depositary shares
(the "ADSS"), to be evidenced by American depositary receipts (the "ADRS"), each
ADS to represent five (5) ordinary shares, nominal value SEK 3.20 per share (the
"SHARES") of the Company, and
WHEREAS, Sonera Corporation, a company incorporated in The Republic of
Finland ("SONERA") and Citibank, N.A. as depositary (the "SONERA DEPOSITARY")
have entered into a Deposit Agreement (the "SONERA DEPOSIT AGREEMENT"), dated as
of October 12, 1999, which provides, inter alia, for the issuance of American
depositary shares (the "SONERA ADSS"), evidenced by American depositary receipts
(the "SONERA ADRS"), each Sonera ADS representing one (1) ordinary share (the
"SONERA SHARES") of Sonera; and
WHEREAS, Sonera and the Company have entered into a Combination Agreement,
dated as of March 26, 2002, as amended and supplemented from time to time (the
"COMBINATION AGREEMENT"), pursuant to which the Company will acquire all of the
issued and outstanding Sonera Shares, including all Sonera Shares represented by
Sonera ADSs and all warrants issued pursuant to the Sonera 1999 and 2000 stock
option programs (the "SONERA WARRANTS"); and
WHEREAS, the Company is making an offer to exchange (the "EXCHANGE OFFER")
(i) 0.30288 ADSs for each outstanding Sonera ADS tendered to the U.S. Exchange
Agent in the United States (the "U.S. EXCHANGE OFFER") and (ii) (a) 1.51440
Shares for each Sonera share tendered to Nordea Bank, the Finnish share agent
(the "FINNISH SHARE AGENT") in The Republic of Finland ("FINLAND") and (b) one
warrant to be issued by Telia (the "TELIA WARRANTS") for each Sonera Warrant
tendered to the Finnish Share Agent (the "FINNISH EXCHANGE OFFER"), in each
case, upon the terms and subject to the conditions set forth in the Exchange
Offer Prospectus, dated SEPTEMBER 30, 2002 (as amended from time to time, the
"EXCHANGE OFFER PROSPECTUS"), filed by the Company with the SEC under cover of a
registration statement on Form F-4 (the "FORM F-4") on Monday, September 30,
2002 (Reg. No. 333-__________) and declared effective by the SEC as of MONDAY,
SEPTEMBER 30, 2002 and (a) in the case of the U.S. Exchange Offer, the letter
of transmittal (the "LETTER OF
TRANSMITTAL"), a copy of each of the Exchange Offer Prospectus and the Letter of
Transmittal are attached hereto as Schedule III, or (b) in the case of the
Finnish Exchange Offer, the acceptance form and tender instructions described in
the Exchange Offer Prospectus; and
WHEREAS, the Company wishes to appoint Citibank, N.A., upon the terms and
subject to the conditions set forth in this Agreement, to act as U.S. Exchange
Agent in the Exchange Offer; and
WHEREAS, Citibank, N.A. is willing to act as U.S. Exchange Agent upon the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. APPOINTMENT AND ACCEPTANCE
a. The Company hereby appoints Citibank, N.A. to act as "U.S. EXCHANGE
AGENT" in connection with the Exchange Offer and as such to perform,
or cause to be performed, the services of the U.S. Exchange Agent
identified in Schedule I attached hereto (the "SERVICES SCHEDULE").
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b. Citibank, N.A. hereby accepts the appointment by the Company to act as
U.S. Exchange Agent solely within the terms and subject to the
conditions of this Agreement.
2. SEGREGATION OF PROPERTY
a. The U.S. Exchange Agent shall, in accordance with Rule 17Ad-14
promulgated under the Securities Exchange Act of 1934, as amended, and
the terms and conditions of the Exchange Offer, establish the
requisite number of account(s) (collectively, the "DTC BOOK-ENTRY
ACCOUNT(S)") at The Depository Trust Company ("DTC") as soon as
practicable after the effective date of this Agreement, but in any
event within two (2) Business Days (as defined in Schedule I below)
after the commencement of the Exchange Offer, for the purpose of
receiving Sonera ADSs delivered to the U.S. Exchange Agent pursuant to
the Exchange Offer. The U.S. Exchange Agent shall provide the means
for any financial institution that is a participant in DTC (a "DTC
PARTICIPANT") to make book-entry delivery of Sonera ADSs into the DTC
book-entry Account(s) in accordance with the procedures for transfer
through DTC. In accordance with the customary procedures of DTC
Participants, the U.S. Exchange Agent shall promptly notify DTC
Participants through the facilities of DTC of the identity of the DTC
Book- Entry Account(s) established in connection with the Exchange
Offer.
b. The U.S. Exchange Agent hereby agrees that all securities, funds or
other assets (collectively, the "PROPERTY") deposited with or received
by it in such capacity under the Exchange Offer
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constitute a special, segregated account, held solely for the benefit
of the Company and the holders and beneficial owners of Sonera ADSs
who tender their Sonera ADSs to the U.S. Exchange Agent in the
Exchange Offer, as their interests may appear within the terms of the
Exchange Offer. Nothing herein shall constitute the U.S. Exchange
Agent a fiduciary with respect to the Property.
3. DELEGATION OF DUTIES
The U.S. Exchange Agent may perform its duties hereunder through any agent
appointed for such purpose, including, but not limited to, Equiserve, L.P.
("EQUISERVE"). Such duties may be performed by First Chicago in the State
of New Jersey. However, the U.S. Exchange Agent shall remain a primary
obligor with respect to such delegated duties. Any such appointment of
agents will be at the cost of the U.S. Exchange Agent and will not relieve
the U.S. Exchange Agent of any of its obligations or liabilities hereunder.
4. BROKERAGE ARRANGEMENTS
The U.S. Exchange Agent will appoint a U.S. broker dealer (the "U.S.
Broker") to execute the sale of the aggregated number of fractional ADSs
resulting from the exchange of Sonera ADSs for ADSs pursuant to the terms
of the Exchange Offer. The U.S. Broker shall be instructed to sell such
ADSs as agent for the holders of Sonera ADSs entitled to receive the
proceeds from the sale of ADSs. The U.S. Broker so appointed may be an
affiliate of the U.S. Exchange Agent. No fees or commissions of the U.S.
Broker shall be payable by the holders of ADSs.
5. RESPONSIBILITY AND LIABILITY
a. The duties, responsibilities and obligations of the U.S. Exchange
Agent shall be limited to those expressly set forth in this Agreement
and no duties, responsibilities or obligations of the U.S. Exchange
Agent shall be inferred or implied under the terms of this Agreement.
The U.S. Exchange Agent shall not be subject to, nor required to
comply with, (i) any provision of any other agreement or any
instrument to which the Company is a party or to which the Company is
subject, even though reference thereto may be made in this Agreement
or in any other document provided by the Company and its advisors to
the U.S. Exchange Agent, or (ii) any direction or instruction from the
Company or any entity acting on its behalf except as contemplated in
this Agreement.
b. The U.S. Exchange Agent shall not be deemed to make any
representations and shall have no responsibilities as to the validity,
sufficiency, value, or genuineness of any Sonera ADSs tendered to the
U.S. Exchange Agent as part of the Exchange Offer and will not be
required to make any, and will make no, representations as to, or be
responsible for, the validity, sufficiency, legality, value, or
genuineness of the Exchange Offer and the ADSs or the Shares to be
issued in connection therewith;
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c. The U.S. Exchange Agent does not, and shall not be deemed to, assume
any responsibility or incur any liability for the actions or omissions
to act of any book-entry transfer facility or clearing agency;
d. the U.S. Exchange Agent shall have no obligation to, and shall not,
deliver any ADSs under the terms of the Exchange Offer, unless it
shall have received confirmation (i) from the Company that it has
accepted the Sonera ADSs tendered and that all conditions of the
Exchange Offer have been satisfied or validly waived and (ii) the
requisite number of Shares to be represented by the ADSs to be issued
in the Exchange Offer have been duly deposited with the custodian
under the Deposit Agreement (the "CUSTODIAN");
e. The U.S. Exchange Agent may rely on, and shall be fully authorized and
protected in acting or not acting, in good faith in reliance upon, any
certificate, instrument, instruction, opinion, notice, letter,
telegram, telex, facsimile transmission, electronic message (including
without limitation, a message received through DTC's electronic
messaging systems) or other document or instrument delivered to it and
reasonably believed by it to be genuine. The U.S. Exchange Agent may
rely on and shall be fully authorized and protected in acting or not
acting upon the written and electronic instructions, with respect to
any matter relating to its actions covered by this Agreement (or
supplementing or qualifying any such actions), of Authorized
Representatives of the Company (as set forth in Schedule IV hereto,
the "AUTHORIZED REPRESENTATIVES");
f. The U.S. Exchange Agent shall not be called upon at any time to, and
shall not at any time, advise any person acting under the Exchange
Offer as to the wisdom of acting thereunder or as to the market value
of any security tendered or surrendered thereunder. The U.S. Exchange
Agent shall not be liable or responsible for any recital or statement
contained in the Exchange Offer materials or any other documents
relating thereto, except for recitals or statements provided by the
U.S. Exchange Agent for inclusion therein, so long as such recitals or
statements are incorporated in the Exchange Offer materials and
related documents without alteration, unless such alteration is
specifically approved by the U.S. Exchange Agent or its counsel;
g. The U.S. Exchange Agent shall not be liable or responsible for any
delay, failure, malfunction interruption or error in the transmission
or receipt of communications or messages through electronic means
(including, without limitation, the message systems of the applicable
book-entry transfer facility), except to the extent such delay,
failure, malfunction or error arises out of the U.S. Exchange Agent's
own negligence;
h. The U.S. Exchange Agent shall not be liable or responsible for any
failure by the Company to comply with any of its obligations relating
to the Exchange Offer, including, without limitation, its obligations
under applicable U.S. securities laws;
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i. The U.S. Exchange Agent is not required under the terms of this
Agreement, and nothing contained in this Agreement shall be
interpreted in any way to imply any obligation of the U.S. Exchange
Agent, to expend or risk any of its own funds or to make any financial
accommodations in the performance of its duties hereunder; and
j. The U.S. Exchange Agent shall not be responsible of liable for any
action taken or any failure to act by, or for monitoring the actions
of, the Finnish Share Agent, which has been appointed by the Company
under a separate agreement as the Finnish Share Agent for the Sonera
Shares and Sonera Warrants tendered in the Finnish Exchange Offer.
6. TERM OF AGREEMENT
a. This Agreement shall terminate upon (i) the earlier to occur of (a)
termination of this Agreement by mutual agreement of the U.S. Exchange
Agent and the Company hereto or (b) termination by the Company of the
Exchange Offer or (ii) (a) in the case of mandatory redemption and
compulsory acquisition of Sonera Shares represented by Sonera ADSs
under Finnish law, remittance of the applicable consideration received
in respect of Sonera ADSs not previously tendered in the Exchange
Offer or (b) if all outstanding Sonera ADSs have been tendered in the
Exchange Offer, March 31, 2003. Upon termination of this Agreement,
the U.S. Exchange Agent and the Company shall have no further duties
hereunder except as otherwise set forth in the following provisions of
this Section 6.
b. Upon termination of this Agreement, the U.S. Exchange Agent shall
promptly deliver to the holders entitled thereto and to the Company,
as their respective rights may exist under the terms of the Exchange
Offer, any Property held under the terms hereof. Upon termination of
this Agreement, copies of all information (including all tender
documentation, telegrams, facsimile transmissions and other material
submitted in connection with the Exchange Offer) maintained by the
U.S. Exchange Agent for the Company under this Agreement shall be
delivered to the Company upon request.
c. Notwithstanding anything else contained in this Agreement, the terms
of Sections 8, 9, 10 and 12 shall survive termination of this
Agreement.
7. REPRESENTATIONS AND WARRANTIES
a. The Company represents and warrants that:
(i) it is duly incorporated and validly existing under the laws of
its jurisdiction of incorporation,
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(ii) the making and consummation of the Exchange Offer and the
performance of all transactions contemplated thereby have been
duly authorized by all necessary corporate action and will not
result in a breach of, or constitute a default under, the
Articles of Association of the Company or any indenture,
agreement or instrument to which it is a party or is bound,
except with respect to any indenture, agreement or instrument,
such breaches or defaults as are not material and do not give
rise to acceleration of indebtedness,
(iii) this Agreement has been duly executed and delivered by the
Company by an officer of the Company thereunto duly authorized
and constitutes its legal, valid, binding and enforceable
obligation,
(iv) the Exchange Offer does comply, and will be conducted by the
Company in compliance, with all requirements of law (including,
without limitation, the United States, Finnish and Swedish
securities laws) applicable to the Exchange Offer,
(v) it has not made to the SEC, to the Swedish Financial Supervisory
Authority (the "SWEDISH SEC"), the Vardepapperscentralen VPC
Aktiebolag ("VPC"), the Stockholm Exchange, the Finnish
Financial Supervisory Authority (the "FINNISH SEC"), the Finnish
Central Securities Depository Ltd. (the "FCSD"), the Helsinki
Exchanges or any other regulatory authority any representations
in respect of the U.S. Exchange Agent which have not been
disclosed in writing to the U.S. Exchange Agent, and it shall
not make any such representations without the prior written
consent of The U.S. Exchange Agent,
(vi) it has obtained, on or prior to the date hereof, all requisite
approvals from the SEC, and all other applicable regulatory
authorities to conduct the Exchange Offer in accordance with the
terms set forth in the Exchange Offer Prospectus, other than (i)
approvals related to the filing and effectiveness of any
amendments to the Registration Statement and the Schedule TO,
(ii) approvals related to the effectiveness of the registration
statement on Form F-6, (iii) approvals related to the listing of
the Shares on the Stockholm Exchange and the Helsinki Exchanges
and the listing of the ADSs on NASDAQ, (iv) the approval of the
European Commission, and the relevant competition law
authorities in Estonia, Latvia, Lithuania and Russia, with
respect to the transactions contemplated by the Exchange Offer,
(v) the relevant approvals from the U.S. Federal Communications
Commission with respect to the transactions contemplated by the
Exchange Offer, (vi) the registration with the Swedish Patent
and Registration Authority ("PRV") of the increase in the
Company's share capital necessary to effect the Exchange Offer
and (vii) such other approvals from regulatory authorities as
are described in the Exchange Offer Prospectus,
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(vii) to its knowledge (after due inquiry), there is no litigation
pending or threatened against it which could adversely affect in
a material way the Company's ability to perform its obligations
hereunder or otherwise in connection with the Exchange Offer,
and
(viii) the Form F-4 has been declared effective by the SEC and no stop
orders are in effect with respect to such registration statement
as of the date hereof, and any and all other registration
statements applicable to the issuance of ADSs and Shares in
exchange for Sonera ADSs and Sonera ADSs and Sonera Shares,
respectively, including without limitation the registration
statement on Form F-6, have been filed with the SEC and any
other applicable regulatory authorities as of the date hereof,
and the Company will use its commercially reasonable best
efforts to obtain the effectiveness of all such registration
statements prior to the expiration date of the Exchange Offer to
lawfully issue ADSs and Shares in exchange for Sonera ADSs and
Sonera Shares at such time.
8. INDEMNIFICATION
The Company agrees to indemnify and defend the U.S. Exchange Agent and to
hold the U.S. Exchange Agent harmless (including any of the employees,
officers, directors, agents, subsidiaries and affiliates or any of them,
each an "INDEMNITEE" hereunder) from and against any claim, action,
judgement, damage, loss, liability, cost, securities transfer tax and
expense (including, without limitation, any reasonable expenses and fees of
counsel, each a "LOSS" hereunder) which may be incurred, paid or suffered
by the U.S. Exchange Agent or to which the U.S. Exchange Agent may become
subject (a) as a result of any action taken, or any action not taken, in
each case, in good faith upon the instructions of an Authorized Officer of
the Company, (b) arising out of, or in connection with, any actions taken
within the terms of this Agreement, or (c) as a result of defending itself
against any claim involving the Exchange Offer (including, without
limitation, any claim based on any alleged untrue statements contained in
any materials distributed by or on behalf of the Company in connection with
the Exchange Offer or the omission therefrom of any fact necessary to make
the statements contained therein not misleading). Provided however that,
the U.S. Exchange Agent shall not be entitled to any indemnification under
the terms hereof if the Loss arises from its own negligence or bad faith in
the performance of, or its willful failure to perform, its obligations
hereunder. The U.S. Exchange Agent agrees to notify the Company of each
assertion of a claim against any Indemnitee or any action commenced against
any such party, within ten (10) Business Days (as defined in Schedule I
below) after the receipt of notice thereof by the U.S. Exchange Agent. The
obligations of the Company under this Section 8 shall survive the
termination of this Agreement.
The U.S. Exchange Agent will indemnify the Company from and against any
Loss resulting from the U.S. Exchange Agent's negligence or bad faith in
performing its obligations hereunder.
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9. FEES
For the services provided hereunder the Company agrees to pay to the U.S.
Exchange Agent the fees and reimbursements set forth in Fee Schedule
attached hereto as Schedule II (the "FEE SCHEDULE"). The payment
obligations of the Company hereunder shall survive the termination of this
Agreement.
10. INTERPRETATION; DISPUTES; JUDGMENTS AGAINST PROPERTY; LITIGATION
a. Interpretation.
In the event the U.S. Exchange Agent has any question with respect to
the proper interpretation of this Agreement or the duties of any party
hereunder or the rights of (i) the Company or (ii) any tendering
holder of Sonera ADSs under the Exchange Offer, the U.S. Exchange
Agent may apply in writing to the Company for instructions with
respect thereto, and such application may set forth any action
proposed to be taken or omitted by the U.S. Exchange Agent and the
date(s) on or after which such action or omission will be taken, and
the U.S. Exchange Agent will not be liable for any action or omission
in accordance with a proposal included in any such application on or
after the date(s) specified therein (which date(s) shall not, without
the Company's consent, be less than five (5) Business Days (as defined
in Schedule I below) after the U.S. Exchange Agent makes such
application) unless, prior to taking or omitting to take such action,
the U.S. Exchange Agent has received oral or written instructions from
the Company in response to such application specifying the action to
be taken or omitted. Any oral instructions from the Company shall be
confirmed in writing via facsimile or other means of electronic
transmission from the Company to the U.S. Exchange Agent or from the
U.S. Exchange Agent to the Company by no later than the close of
business in New York City on the Business Day on which such oral
instructions are received by the U.S. Exchange Agent. Notwithstanding
the foregoing, the U.S. Exchange Agent shall promptly take such steps
as it shall deem reasonable and appropriate to cause any person
tendering Sonera ADSs to correct any defect that exists in respect of
such surrender before applying to the Company hereunder.
b. Disputes.
In the event the U.S. Exchange Agent becomes aware of any dispute
among any of the Company and any holders of Sonera ADSs, with respect
to the proper interpretation of this Agreement, or the duties of any
party hereunder, or the rights or obligations of the Company or of any
tendering holders of Sonera ADSs, under the Exchange Offer, the U.S.
Exchange Agent shall promptly, and in the case of any claim asserted
under Section 8 hereof, within ten (10) Business Days, inform the
Company in writing of such dispute and the U.S. Exchange Agent shall
not be required to act with respect to the subject matter and parties
relating to such dispute and shall not be held liable or responsible
for its refusal to act with respect
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to the subject matter and parties relating to such dispute until (a)
the dispute has been judicially settled (and the U.S. Exchange Agent
may, if in its sole discretion it deems so advisable, but shall not be
obligated to, file a suit in interpleader or for a declaratory
judgment for such purpose) by final judgment rendered by a court of
competent jurisdiction, binding on all parties interested in the
matter and which is no longer subject to review or appeal, or (b) the
dispute has been settled by a written document in form and substance
reasonably satisfactory to the U.S. Exchange Agent and executed by the
Company and, if applicable, binding upon all tendering holders of
Sonera ADSs, interested in the matter.
c. Judgments; Court Orders.
If any Property is at any time attached, garnished, or levied upon
under any court order or in case the payment, assignment, transfer,
conveyance, or delivery of any such Property shall be stayed or
enjoined by any court order, or if any order, judgement or decree
shall be made or entered by any court affecting such Property or any
part thereof, then and in any such event the U.S. Exchange Agent shall
be authorized, in its sole discretion, upon notice to the Company, to
rely upon and comply with any such order, judgement, or decree which
the U.S. Exchange Agent has been advised in writing by legal counsel
of its own choosing (and reasonably satisfactory to the Company) is
binding upon it. If the U.S. Exchange Agent complies with any such
order, judgement, or decree, it shall not be liable to any person or
entity by reason of such compliance even though such order, judgement,
or decree may be subsequently reversed, modified, annulled, set aside,
or vacated.
d. Defending Litigation.
The U.S. Exchange Agent agrees to notify the Company in writing of the
commencement of any action against the U.S. Exchange Agent or any
Indemnitee for which indemnification is being or may be sought
hereunder if the Company is not a party to such action. The failure by
the U.S. Exchange Agent to so notify the Company will not (i) relieve
the Company from its indemnification obligations hereunder unless and
to the extent the Company did not otherwise learn of such action and
such failure results in the forfeiture by the Company of substantial
rights and defenses, and (ii) in any event relieve the Company from
any obligations to the U.S. Exchange Agent or any other Indemnitee
hereunder other than the indemnification obligations directly related
to such action.
The Company shall (except as noted below) be entitled to assume the
defense of any third party claim, legal action or proceeding against
the U.S. Exchange Agent and/or any Indemnitee for which
indemnification is or may be sought hereunder and agrees to defend
such claim, action or proceeding with counsel reasonably satisfactory
to the U.S. Exchange Agent and to pay the fees and expenses of such
counsel. All costs and reasonable expenses incurred by the U.S.
Exchange Agent in connection with any such third party claim, action
or proceeding shall be
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covered by the indemnification obligations of the Company under the
terms of this Agreement.
Notwithstanding the Company's election to assume the defense of such
claim, action or proceeding, the U.S. Exchange Agent shall have the
right to employ separate counsel and to participate in the defense of
such claim, action or proceeding, and the Company shall bear the
reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the Company to represent the Indemnitees
would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such claim,
action or proceeding include both the Company and the Indemnitees, and
the U.S. Exchange Agent shall have reasonably concluded that there may
be legal defenses available to the Indemnitees which are different
from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such
claim, action, or proceeding on behalf of the Indemnitees); (iii) the
Company shall not have employed counsel satisfactory to the U.S.
Exchange Agent to represent the Indemnitees within a reasonable time
after notice of the institution of such action; or (iv) the Company
shall authorize the U.S. Exchange Agent to employ separate counsel at
the Company's expense. The Company shall not be liable for the fees
and expenses of more than one separate counsel (plus one local counsel
in each applicable jurisdiction), selected by the U.S. Exchange Agent
under the terms hereof, in any single claim, action or proceeding for
all Indemnitees unless the Company consents or unless a bona fide
conflict of interest requires separate counsel for particular
Indemnitees.
No settlement shall be reached in any such claim, action or proceeding
without the consent of the U.S. Exchange Agent (which consent shall
not be unreasonably withheld).
e. Instituting Lawsuits.
The Company hereby agrees to assert all claims and institute all legal
actions and proceedings against third parties deemed necessary and
appropriate (in the reasonable opinion of the U.S. Exchange Agent) in
connection with the role of the U.S. Exchange Agent in the Exchange
Offer as contemplated in this Agreement and agrees to appoint counsel
reasonably satisfactory to the U.S. Exchange Agent for such purpose.
The U.S. Exchange Agent shall have the right to participate in the
assertion of such claims and the institution of such legal actions and
proceedings and to assume control of the conduct of such claims,
actions and proceedings deriving from its role as U.S. Exchange Agent.
All liabilities, costs and reasonable expenses incurred by the U.S.
Exchange Agent in connection with any such claims, actions or
proceedings shall be covered by the indemnifications of the Company
under the terms of this Agreement. The U.S. Exchange Agent shall be
entitled to employ separate counsel when so participating in the
assertion of claims or institution of legal actions or proceedings and
the costs and reasonable expenses of such counsel shall be borne by
the Company to the same
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extent as provided in Section 10d. above. No settlement shall be
reached in any such action or proceeding or with respect to any such
claim without the consent of the U.S. Exchange Agent (which consent
shall not be unreasonably withheld).
The provisions of this Section 10 shall survive the termination of
this Agreement.
11. AMENDMENTS AND ASSIGNMENTS
a. The terms of this Agreement may be waived, amended or supplemented
only by agreement in writing duly executed by all parties hereto. The
rights and remedies conferred upon the parties hereto shall be
cumulative and the exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of any additional rights or
remedies, nor the subsequent exercise of such right or remedy.
b. None of the rights and obligations of the parties under this Agreement
may be assigned except (i) upon receipt of prior written consent of
the other parties to this Agreement or (ii) as otherwise specifically
permitted by Section 3 hereof. Any assignment or delegation in
violation of this Section 11(b) shall be null and void.
c. The Company may appoint such additional or successor U.S. Exchange
Agents upon receipt by the U.S. Exchange Agent of notice of such
appointment in writing five (5) Business Days prior to the date of
such appointment.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York (without reference to the principles of
choice of law thereof). The parties agree that the federal or state courts
located in the Borough of Manhattan in the City of York shall have
exclusive jurisdiction to hear and determine any suit, action or proceeding
and to settle any disputes between parties relating to this Agreement and
for such purpose each of the parties irrevocably submits to the
jurisdiction of such courts, and the Company hereby waives any
jurisdictional rights it may have by reason of its present or future
domicile, or otherwise.
The Company hereby irrevocably designates, appoints and empowers Telia
International Carrier, Inc., located as of the date hereof at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone: (713)
▇▇▇-▇▇▇▇, as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service in
any manner permitted by law of any and all legal process, summons, notices
and documents that may be served in any suit, action or proceeding brought
by the U.S. Exchange Agent against the Company in any court described in
the preceding sentence (such agent and any successor or other agent for
service of process appointed by, or acting on behalf of, the Company, the
"AGENT"). If for any reason the Agent shall cease to be available to act,
or ceases to act, as such, the Company agrees to designate and maintain a
new agent in New York on the terms and for the purposes of this Section 12
reasonably satisfactory to the U.S. Exchange Agent. The Company further
hereby
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irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against it under the terms hereof, by service in any manner permitted by
law, upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company (by registered
or certified mail, postage prepaid, to the address last specified for
notices hereunder). If for any reason whatsoever no Agent is acting in the
State of New York, the Company consents to service of any and all legal
process, summons, notices and documents by certified or registered mail,
return receipt requested, directed to it at the address last specified for
notices hereunder. The Company hereby irrevocably and unconditionally
waives, and agrees not to plead to claim in any court, any objection that
it may now or hereafter have to object to service of any and all legal
process, summons, notices and documents in the manner contemplated herein.
In addition, the Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any actions, suits or proceedings brought in
any court as provided herein, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
Notwithstanding the foregoing, the U.S. Exchange Agent and the Company
unconditionally agree that in the event that any holder or beneficial owner
of Sonera ADSs, Sonera Shares or Sonera Warrants, any participant in any
book-entry transfer facility or any other person brings a suit, action or
proceeding against (a) the Company, (b) the U.S. Exchange Agent or (c)
against the Company and the U.S. Exchange Agent, in any state or federal
court of the United States, and the U.S. Exchange Agent or the Company have
any claim, for indemnification or otherwise, against each other arising out
of the subject matter of such suit, action or proceeding, then the Company
and the U.S. Exchange Agent may pursue such claim against each other in the
state or federal court in the United States in which such suit, action, or
proceeding is pending and, for such purposes, the Company and the U.S.
Exchange Agent irrevocably submit to the non-exclusive jurisdiction of such
courts. The consent in the immediately preceding paragraph is to be
strictly construed in accordance with its terms and shall not be deemed a
waiver by (a) the Company of any jurisdictional or venue (including forum
non conveniens) defenses it may have with respect to any suit or proceeding
brought by any person other than the U.S. Exchange Agent or with respect to
any claim or course of action asserted by the U.S. Exchange Agent that does
not arise under this Agreement or (b) the U.S. Exchange Agent of any
jurisdictional or venue (including forum non conveniens) defenses it may
have with respect to any suit or proceeding brought by any person other
than the Company or with respect to any claim or course of action asserted
by the Company that does not arise under this Agreement.
Each of the Company and the U.S. Exchange Agent irrevocably and
unconditionally waives, to the fullest extent permitted by law, and agrees
not to plead or claim, any right of immunity from legal action, suit or
proceeding, from set-off or counterclaim, from the jurisdiction of any
court specified in this Agreement, from service of process, from
12
attachment upon or prior to judgment, from attachment in aid of execution
or judgment, from execution of judgment, or from any other legal process or
proceeding for the giving of any relief or for the enforcement of any
judgment, and consents to such relief and enforcement against it, its
assets and its revenues in any jurisdiction, in each case with respect to
any matter arising out of, or in connection with, this Agreement.
The provisions of this Section 12 shall survive any termination of this
Agreement.
13. PARTIAL INVALIDITY
In the event that any provision of this Agreement or the application
thereof to any person or circumstances shall be determined by a court of
proper jurisdiction to be invalid or unenforceable to any extent, the
remaining provisions of this Agreement, and the application of such
provisions to persons or circumstances other than those as to which they
are held invalid or unenforceable, shall be unaffected thereby and such
provisions shall be valid and enforced to the fullest extent permitted by
law in such jurisdiction so long as the fundamental relationships among the
parties hereunder are not altered.
14. CONFLICTS AND BENEFITS
a. The Company recognizes that the U.S. Exchange Agent and any of its
direct or indirect affiliates (collectively, "CITIGROUP") may engage
in transactions and/or businesses adverse to the Company or in which
parties adverse to the Company may have interests. Nothing in this
Agreement shall (i) preclude any member of Citigroup from engaging in
such transactions or businesses or (ii) obligate any member of
Citigroup to (a) disclose such transactions and/or business to the
Company, or (b) account for any profit made or payment received in, or
as a part of, such transactions and/or business, provided, however,
that any such action does not prejudice or interfere with the due
performance of the U.S. Exchange Agent, as agent on behalf of the
Company, hereunder.
b. Nothing in this Agreement is intended, nor shall anything contained in
this Agreement be deemed, to constitute (i) a waiver of any right
under, or an amendment of, any term of any other agreement between the
Company and the U.S. Exchange Agent or any other member of Citigroup,
or any instrument from the Company to the U.S. Exchange Agent or any
other member of Citigroup, unless such waiver or amendment is
specifically acknowledged in writing.
c. Nothing in this Agreement is intended to benefit any persons not
specifically identified herein. Nothing herein shall be deemed to (i)
give rise to a partnership or joint venture or (ii) establish a
fiduciary or similar relationship, among the parties hereto.
13
15. FORCE MAJEURE/DAMAGES
The U.S. Exchange Agent shall be excused from performance of its
obligations under this Agreement and shall not be liable for any losses,
damages, or expenses caused by the occurrence of any contingency beyond its
control, including, without limitation, nationalization, expropriations,
currency restrictions, work stoppages, strikes, fire, civil unrest,
insurrections, revolutions, riots, rebellions, acts of terrorism,
explosions, floods, storms, computer failures, acts of war, acts of God or
similar occurrences. Nor shall the U.S. Exchange Agent incur any liability
if it shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of this Agreement, by
reason of any provision of any present or future law or regulation of the
United States, Finland, Sweden or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint. In no
event shall the U.S. Exchange Agent be liable or responsible for any
incidental, indirect, special consequential or punitive damages for any
breach of the terms of this Agreement.
16. ENTIRE AGREEMENT
This Agreement (including the Schedules hereto) sets forth the entire
understanding of the parties in respect of the subject matter hereof and
supersedes any and all prior agreements, arrangements and understandings
relating thereto.
17. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall
be an original, but all of which shall constitute one and the same
agreement.
18. TITLES
a. All references in this Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles,
sections, subsections and other subdivisions of this Agreement unless
expressly provided otherwise. The words "this Agreement", "herein",
"hereof", "hereby", "hereunder" and words of similar import refer to
this Agreement as a whole as in effect between the parties and not to
any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include
any other gender, and words in the singular form shall be construed to
include the plural and vice versa unless the context otherwise
requires.
b. Titles to sections of this Agreement are included for convenience only
and shall be disregarded in construing the language contained in this
Agreement.
14
19. NOTICES
a. Any notice desired or required to be given by one party to the other
in accordance with the provisions of this Agreement may be given in
any of the following manners:
(i) by facsimile or other similar form of telecommunications sent by
one party to the other at its address from time to time notified
(in accordance with the terms hereof) for the receipt of such
communications, in which event such notice shall be deemed to
have been received at the time of receipt as recorded by such
method of communication. A copy of every such notice shall be
sent in writing by pre-paid airmail registered post to the party
to whom it is addressed at the address referred to below but the
receipt of such copy shall not be a condition to due notice
having been given;
(ii) in writing sent by pre-paid airmail registered post at the
address mentioned below, in which event such notice shall be
deemed to have been delivered five business days after the date
of posting;
(iii) in writing by personal delivery at the address of the party to
whom it is addressed as set out below, in which event such
notice shall be deemed to have been received at the time of
delivery.
b. Each party shall from time to time notify the other of its addresses
for the receipt of facsimile or other forms of telecommunications and
for notices in writing.
c. Until the Company shall notify the U.S. Exchange Agent to the contrary
in writing, the address of the Company shall be as follows:
(i) for communications by telephone: ▇▇▇-▇▇-▇-▇▇▇-▇▇▇▇
(ii) for communications by facsimile: 011-46-8-713-3333
(iii) for communications in writing:
Telia AB
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ Holcke
d. Until the U.S. Exchange Agent shall notify the Company to the
contrary, the address of the U.S. Exchange Agent shall be:
(i) for communications by telephone: ▇▇▇-▇▇▇-▇▇▇▇
15
(ii) for communications by facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(iii) for communications in writing:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date set forth above by representatives
thereunto duly authorized.
TELIA AB
By: __________________________
Name:
Title:
CITIBANK, N.A.
By: __________________________
Name:
Title:
Attachments
Schedule I Services Schedule
Schedule II Fee Schedule
Schedule III Tender Documentation
Schedule IV Authorized Officers of the Company
17
SCHEDULE I
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF SEPTEMBER 30, 2002 (THE "AGREEMENT"),
BY AND BETWEEN
TELIA AB AND CITIBANK, N.A.
--------------------
SERVICES SCHEDULE
--------------------
Unless otherwise set forth herein, all capitalized terms used but not
otherwise defined herein shall have the meaning given to such terms in the
Agreement. All terms and conditions of the Agreement are incorporated herein by
reference.
A. DEFINITIONS
"AGENT'S MESSAGE" shall mean, with respect to tenders of
Sonera ADSs, a message transmitted through
DTC (as defined below) and forming a part of
the DTC book-entry confirmation system to,
and received by, the U.S. Exchange Agent
that states that DTC book-entry has received
an express acknowledgment from a Participant
(as defined below) tendering the Sonera ADSs
that such Participant has received the
Exchange Offer Prospectus and agrees to be
bound by the terms of the Exchange Offer, as
set forth in the Exchange Offer Prospectus,
for the tender of each of the Sonera ADSs.
"AUTHORIZED REPRESENTATIVES" shall mean any of the persons authorized to
act for the Company under this Agreement
whose name and specimen signature is set
forth in Schedule IV to the Agreement or in
any certificate from time to time issued to
the U.S. Exchange Agent by the Secretary or
Assistant Secretary of the Company
indicating that such person is authorized to
act for, and on behalf of, the Company under
the Agreement.
"BOOK-ENTRY TRANSFER FACILITY" shall mean DTC (as defined below) which
provides a means for book-entry delivery of
Sonera ADSs and for the delivery of
electronic messages by its Participants (as
defined below).
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or a bank holiday in either New York
City, Finland or Sweden, and consists of the
time period from 12:01 a.m. through 12:00
midnight, New York City time.
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"COMMENCEMENT DATE" shall mean, in respect of the Exchange Offer
in the United States, [9:00 A.M.], New York
City time, on [MONDAY, SEPTEMBER 30], 2002,
unless otherwise declared by the Company, as
permitted by applicable law and subject to
applicable regulatory approvals.
"DTC" shall mean The Depository Trust Company or
any other successor institution providing
facilities performing substantially similar
functions.
"ELIGIBLE GUARANTOR" shall mean an entity that is a member in
good standing of a recognized Medallion
Program approved by the Securities Transfer
Association, Inc.
"EXPIRATION DATE" shall mean, in respect of the Exchange Offer
in the United States [9:00 A.M.], New York
City time, which is [4:00 P.M.], Helsinki
time, on [MONDAY], November 8, 2002, unless
extended by the Company as permitted by
applicable law and subject to applicable
regulatory approvals.
"LETTER OF TRANSMITTAL" shall mean the letter of transmittal
constituting part of the Exchange Offer to
be (i) properly completed and duly executed
(including any applicable signature
guarantees by an Eligible Guarantor) by
tendering registered holders of Sonera ADR
certificates evidencing Sonera ADSs and (ii)
delivered to the U.S. Exchange Agent, along
with such holders' Sonera ADR certificates.
A copy of the Letter of Transmittal is
attached as part of Schedule III to the
Agreement.
"PARTICIPANT" shall mean with respect to Sonera ADSs, any
broker, dealer, bank, trust company or other
nominee shown in DTC's records as having
Sonera ADSs credited to its DTC account.
B. SERVICES
Citibank, N.A., as the U.S. Exchange Agent under the Agreement, shall
provide the following services:
I. SHAREHOLDER LIST.
The Company shall cause the Sonera Depositary, on or before the
Commencement Date, to furnish to the U.S. Exchange Agent, ▇▇▇▇▇ (as defined
below) and the Information Agent (as defined below) a certified list of the
holders of Sonera ADSs as of the close of business on the Business Day
immediately preceding the Commencement Date (in a form reasonably
acceptable to the U.S. Exchange Agent), including, without limitation, (i)
I-2
holders of Sonera ADSs held through DTC and (ii) registered holders of
Sonera ADSs evidenced by Sonera ADR certificates, in each case indicating
(a) the names, addresses, and tax identification numbers of the holders of
record of Sonera ADSs as of such date, (b) the number of Sonera ADSs held
of record by each such holder, (c) the serial number of each holder's
Sonera ADR certificate and (d) a list of all ADR certificates (with
respective serial numbers) that have been "stopped" because of theft, loss
or destruction thereof or restricted as to transfer (the "SHAREHOLDER
LIST").
II. MAILING OF EXCHANGE OFFER MATERIALS.
A. To Holders of Sonera ADSs Held Through DTC.
▇▇▇▇▇▇▇▇▇ Shareholder Communications Inc., as Information Agent (the
"INFORMATION AGENT") retained by the Company, shall make available in the
U.S. copies of the Exchange Offer Prospectus and the applicable related
materials provided to it by the Company at the address set out in the
Exchange Offer Prospectus and shall promptly mail or deliver all such
materials to each Participant in DTC holding Sonera ADSs at the address set
forth on the Shareholder List on the date of the commencement of the
Exchange Offer.
B. To Holders of Sonera ADSs Evidenced by Sonera ADR Certificates.
[▇▇▇▇▇] [ADD PROPER CORPORATE NAME AND ADDRESS], financial printer to the
Company ("▇▇▇▇▇") shall mail a copy of the Exchange Offer Prospectus and
the applicable related materials to each registered holder of Sonera ADR
certificates evidencing Sonera ADSs registered on the books of the Sonera
Depositary promptly upon receipt thereof from the Company.
The Company instructed ▇▇▇▇▇, the Information Agent and the U.S. Exchange
Agent that, due to restrictions under securities laws of Australia, the
Hong Kong Special Administrative Region of the People's Republic of China,
Italy, Japan and South Africa, the Exchange Offer will not be extended, and
no copies of the Exchange Offer Prospectus or any applicable related
materials will be mailed or delivered, to holders of Sonera ADSs with
registered addresses in Australia, the Hong Kong Special Administrative
Region of the People's Republic of China, Italy, Japan or South Africa.
III. TENDERING SONERA ADSS.
A. Tendering Sonera ADSs Held Through DTC.
The U.S. Exchange Agent shall provide the means by which holders of Sonera
ADSs may tender their Sonera ADSs to the U.S. Exchange Agent by delivery to
the U.S. Exchange Agent of (i) an Agent's Message and (ii) the Sonera ADSs
by means of book-entry transfer into the DTC Book-Entry Account(s)
maintained by the U.S. Exchange Agent for such purpose, in each case on or
prior to the Expiration Date.
B. Tendering Sonera ADSs Evidenced by Sonera ADR Certificates.
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The U.S. Exchange Agent shall provide the means by which holders of Sonera
ADSs evidenced by Sonera ADR certificates registered in their name on the
books of the Sonera Depositary may tender their Sonera ADSs to the U.S.
Exchange Agent by delivery to the U.S. Exchange Agent of (i) a properly
completed and duly executed Letter of Transmittal (together with the
applicable signature guarantees from an Eligible Guarantor) and (ii) the
Sonera ADR certificate(s) representing the Sonera ADSs specified in the
accompanying Letter of Transmittal, in each case on or prior to the
Expiration Date.
IV. GUARANTEED DELIVERY PROCEDURES.
The Exchange Agent will establish procedures ("GUARANTEED DELIVERY
PROCEDURES") pursuant to which Sonera ADSs may be tendered to the U.S.
Exchange Agent, prior to the Expiration Date, in cases where (i) Sonera
ADSs are not immediately available, (ii) the procedures for book-entry
transfer through DTC cannot be completed immediately or (iii) all required
documents cannot immediately be delivered to the U.S. Exchange Agent.
A. Guaranteed Delivery Procedures for Tendering Sonera ADSs Held Through
DTC.
In the case of Sonera ADSs held through DTC, the U.S. Exchange Agent will
require, as part of the Guaranteed Delivery Procedures, the applicable DTC
Participant to (a) deliver, prior to the Expiration Date, a Notice of
Guaranteed Delivery, substantially in the form provided as part of Schedule
III to the Agreement, by means of an Agent's Message to the applicable DTC
book-entry Account of the U.S. Exchange Agent through the book-entry
transfer facilities of DTC and (b) validly tender the Sonera ADSs upon the
terms set forth above within three (3) trading days on the Nasdaq National
Market ("NASDAQ") after the date of delivery of such Notice of Guaranteed
Delivery to the Exchange Agent.
B. Guaranteed Delivery Procedures for Sonera ADSs Evidenced by Sonera ADR
Certificates.
In the case of Sonera ADSs registered in their name on the books of the
Sonera Depositary, the U.S. Exchange Agent will require, as part of the
Guaranteed Delivery Procedures, such holders to (a) deliver, prior to the
Expiration Date, a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided as a part of
Schedule III to the Agreement, guaranteed by an Eligible Guarantor, to the
U.S. Exchange Agent and (b) validly surrender the Sonera ADSs upon the
terms set forth above to the U.S. Exchange Agent within three (3) trading
days on NASDAQ after the date of delivery of such Notice of Guaranteed
Delivery to the U.S. Exchange Agent.
V. PROCEDURES FOR WITHDRAWAL.
A. Withdrawal of Sonera ADSs Tendered Through DTC.
The U.S. Exchange Agent will make available the withdrawal procedures
established by the DTC Book-Entry Transfer Facility by which Sonera ADSs
previously tendered via the DTC Book-Entry Transfer Facility to the U.S.
Exchange Agent by an Agent's Message may be properly withdrawn at any time
on or prior to the Expiration Date of the Exchange Offer.
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B. Withdrawal of Sonera ADSs Evidenced by Sonera ADR Certificates.
The U.S. Exchange Agent will establish procedures enabling tendering
holders of Sonera ADSs evidenced by Sonera ADR certificates to withdraw
such tender by timely delivering a signed notice of withdrawal, guaranteed
by an Eligible Guarantor, to the U.S. Exchange Agent at the address in New
York set forth in the back cover to the Exchange Offer Prospectus.
VI. EXAMINATION OF TENDERS.
A. Examination of Sonera ADSs Tendered Through DTC.
The U.S. Exchange Agent shall examine any document delivered to it in
connection with tenders of Sonera ADSs to ascertain whether (i) the Agent's
Message has been duly and timely transmitted to the U.S. Exchange Agent by
means of the Book-Entry Transfer Facility, and (ii) the corresponding
Sonera ADSs have otherwise been validly tendered to the Accounts and not
properly withdrawn, in each case on or prior to the Expiration Date.
B. Examination of Sonera ADSs Evidenced by Sonera ADR Certificates
Tendered by means of a Letter of Transmittal.
The U.S. Exchange Agent shall examine any document delivered to it in
connection with tenders of Sonera ADSs evidenced by Sonera ADR certificates
to ascertain whether (i) the Letter of Transmittal has been properly
completed, duly executed (together with the applicable signature guarantees
from an Eligible Guarantor) and timely delivered to the U.S. Exchange
Agent, and (ii) the tendered Sonera ADSs evidenced by the Sonera ADR
certificates have otherwise been validly tendered and not properly
withdrawn, in each case on or prior to the Expiration Date.
The U.S. Exchange Agent will follow its regular procedures to attempt to
reconcile any discrepancies between the number of Sonera ADSs that any
Letter of Transmittal may indicate are owned by a holder of Sonera ADSs and
the number that the records of the Sonera Depositary indicate such holder
holds of record. In any instance where the U.S. Exchange Agent cannot
reconcile such discrepancies by following such procedures, the U.S.
Exchange Agent will consult with the Company for instructions as to the
number of Sonera ADSs, if any, the U.S. Exchange Agent is authorized to
accept in the Exchange Offer. In the absence of such instructions, the U.S.
Exchange Agent shall not accept any such Sonera ADSs in the Exchange Offer.
C. Irregular Tenders.
In the event the U.S. Exchange Agent determines that any Agent's Message,
any Letter of Transmittal or any other required document does not appear to
have been properly completed or executed, or that any other irregularity in
connection with the tender appears to exist, the U.S. Exchange Agent shall
take reasonable and appropriate steps to contact the Participant tendering
the Sonera ADSs or the registered holder tendering the Sonera ADRs, as
appropriate, so as to enable the necessary correction by the Participant or
registered holder, and, upon consultation with the Company, shall endeavor
to take
I-5
such other reasonable action as may be necessary to cause such irregularity
to be corrected. All questions as to the form of documents, validity, form,
eligibility (including timeliness of receipt) and acceptance for exchange
of any tender of Sonera ADSs shall be determined by the U.S. Exchange Agent
on behalf of the Company in the first instance. If irregularities with
respect to any tenders have been identified by the U.S. Exchange Agent and
remain uncured, the U.S. Exchange Agent shall refer final determination to
the Company by promptly sending to the Company any document or copy thereof
which in its judgment would prevent acceptance thereof, and the Company
shall make the final decision whether or not to accept such tender. Upon
acceptance by the Company of such Sonera ADSs tendered pursuant to the
Exchange Offer, the Company shall confirm such acceptance in writing to the
U.S. Exchange Agent. In the event that the Company does not accept a
tender, the Company will provide to the U.S. Exchange Agent a letter
explaining the reason for the non-acceptance. Defective submissions shall
be deemed validly made only at the time the irregularities have been cured
to the satisfaction of, or waived by, the Company. If any such
irregularities are neither so cured nor waived, tendered Sonera ADSs which
are the object of the defective submission shall be returned to the
Participant or the registered holder, as the case may be, together with any
other documents received in connection therewith and the letter that the
Company will have furnished to the U.S. Exchange Agent explaining the
reasons for the return of such Sonera ADSs and the other documents. The
U.S. Exchange Agent will act promptly in accordance with any instructions
received by it from the Company pursuant to this Paragraph VI.
D. Return of Sonera ADSs.
Whenever the Company does not accept a tender of Sonera ADSs or Sonera ADSs
previously tendered are properly withdrawn in accordance with the
procedures for withdrawal set forth in the Exchange Offer Prospectus, the
U.S. Exchange Agent shall promptly cause such Sonera ADSs to be delivered,
(i) in the case of Sonera ADSs tendered by means of book-entry transfer, to
the account of the tendering Participant or (ii) in the case of Sonera ADR
certificates tendered by means of a Letter of Transmittal, to the address
of the registered holder thereof, in each case, together with any other
documents received by the U.S. Exchange Agent and, in the case of
non-acceptance of irregularly tendered Sonera ADSs, the letter from the
Company explaining the reasons for such non-acceptance.
E. Acceptance of Sonera ADSs Notwithstanding Irregularities.
Without further authorization from the Company, the U.S. Exchange Agent may
waive proof of authority to sign (including signatures of co-fiduciaries
and proof of appointment or authority of any fiduciary or other person
acting in a representative capacity) in connection with any tender of
Sonera ADSs with respect to which:
(i) the Sonera ADSs are evidenced by Sonera ADRs registered in the name of
an executor, administrator, trustee, custodian for a minor or other
fiduciary and the Letter of Transmittal has been executed by such
registered holder, provided that the ADSs and any check for a
Cash-in-Lieu Payment (as defined below) to be
I-6
delivered upon acceptance of the Exchange Offer are to be issued in
the name of such registered holder;
(ii) the Sonera ADSs are evidenced by Sonera ADRs registered in the name
of a corporation and the Letter of Transmittal has been executed by
an officer of such corporation, provided that the ADSs and any check
for a Cash-in-Lieu Payment to be delivered upon acceptance of the
Exchange Offer are to be issued in the name of such corporation; and
(iii) the Letter of Transmittal has been executed by a bank, trust company,
broker or other recognized nominee acting for the holder of Sonera
ADSs evidenced by a Sonera ADR registered in the name of such holder,
provided that the ADSs and any check for a Cash-in-Lieu Payment to be
delivered upon acceptance of the Exchange Offer are to be issued in
the name of such registered holder.
VII. DELIVERY OF SONERA SHARES REPRESENTED BY SONERA ADSS DELIVERED FOR TENDER.
Promptly after the Expiration Date in the United States, the U.S. Exchange
Agent shall instruct the custodian under the Sonera Deposit Agreement to
deliver to the Finnish Share Agent, the Sonera Shares represented by the
Sonera ADSs validly tendered to the U.S. Exchange Agent. Upon receipt of
confirmation from the Company of its acceptance of the Sonera Shares
(including the Sonera Shares represented by Sonera ADSs) validly tendered
in the Exchange Offer on or prior to the Expiration Date, the U.S. Exchange
Agent shall cancel the Sonera ADSs so tendered and proceed with the
delivery of ADSs upon the terms and conditions described below.
VIII. REPORTS AND MAINTENANCE AND RETENTION OF RECORDS.
A. Reports.
The U.S. Exchange Agent shall provide daily written reports to the
persons designated by the Company, including to persons at Sonera and
at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., acting as dealer managers for the Exchange
Offer in the United States as may be notified to the U.S. Exchange
Agent in writing by any of the Authorized Representatives, written
reports by facsimile transmission or other acceptable form of
delivery, specifying the following:
(i) the numbers of Sonera ADSs validly tendered during the preceding
Business Day; and
(ii) the numbers of Sonera ADSs validly tendered and not properly
withdrawn, in each case, since the commencement of the Exchange
Offer.
Promptly following the Expiration Date, the U.S. Exchange Agent shall
furnish, unless otherwise notified by an Authorized Representative,
one or more reports to the Authorized Representatives specifying one
or more of the following:
(i) the number of Sonera ADSs validly tendered and the number of
full Telia ADSs issued in exchange therefor;
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(ii) the number of fractional entitlements to Telia ADSs to be
aggregated and sold on NASDAQ; and
(iii) the aggregate amount of Cash-in-Lieu payments to be distributed.
B. Maintenance and Retention of Records.
The U.S. Exchange Agent shall keep and maintain complete and accurate
records of all Sonera ADSs tendered to it and all payments made by it. The
U.S. Exchange Agent shall retain records of each electronic message, each
Letter of Transmittal and any other materials relating to the Exchange
Offer submitted to the U.S. Exchange Agent by the Company, any Participant
or any holder of Sonera ADSs and shall remit such Letters of Transmittal
and such other materials relating to the Exchange Offer to the Company if
so requested.
IX. DELIVERY OF ADSS.
A. Delivery of ADSs for Tendered Sonera ADSs Through DTC.
The U.S. Exchange Agent shall deliver or cause to be delivered by means of
book-entry delivery through the DTC Book-Entry Transfer Facility the
applicable number of whole ADSs to the accounts of the Participants who
validly tendered Sonera ADSs on behalf of a holder of Sonera ADSs, promptly
upon receipt of (i) confirmation from the Company that the Sonera Shares
represented by Sonera ADSs previously tendered to the U.S. Exchange Agent
have been accepted for tender and that all conditions of the Exchange Offer
have been satisfied or validly waived and (ii) a deposit of the appropriate
number of Shares with the Custodian on behalf of the Depositary to support
the issuance of such ADSs.
B. Delivery of ADR Certificates for Tendered Sonera ADR Certificates by
means of a Letter of Transmittal.
The U.S. Exchange Agent shall instruct the Depositary to mail an ADR
certificate evidencing the whole number of such ADSs to any tendering
holder of Sonera ADRs entitled to receive such ADSs promptly upon receipt
of (i) confirmation from the Company that the Sonera Shares represented by
Sonera ADSs previously tendered to the U.S. Exchange Agent have been
accepted for tender and that all conditions of the Exchange Offer have been
satisfied or validly waived, and (ii) a deposit of the appropriate number
of Shares with the Custodian on behalf of the Depositary to support the
issuance of such ADSs.
Any such mailing shall be by first class mail under the U.S. Exchange
Agent's blanket surety bond, which the U.S. Exchange Agent represents
protects Sonera, the Company and the U.S. Exchange Agent from loss or
liability arising by virtue of the non-receipt or non-delivery of such
certificates. It is understood that the market value of securities in any
one shipment sent by first class mail under this procedure will not be in
excess of U.S. $500,000.00. In the event the market value shall exceed U.S.
$500,000.00, the
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envelope shall be mailed by registered mail and shall be insured separately
for the replacement value of its contents at the time of mailing.
If any ADSs are to be issued in, or a cash amount is to be paid to, a name
other than that in which the Sonera ADR certificate representing Sonera
ADSs tendered in the U.S. Exchange Offer is registered, it shall be a
condition to the issuance or payment thereof that the certificate so
surrendered shall be properly endorsed and otherwise in proper form for
transfer and that the tendering person shall pay to the U.S. Exchange Agent
any transfer or other taxes required or shall establish to the U.S.
Exchange Agent's satisfaction that such tax has been paid or is not
payable.
X. FRACTIONAL ENTITLEMENTS.
A. Fractional Entitlements to ADSs Delivered Through DTC.
The U.S. Exchange Agent shall aggregate fractional entitlements to ADSs
resulting from the valid tender of Sonera ADSs and instruct the U.S. Broker
to sell, as soon as reasonably practicable, such ADSs on NASDAQ. The U.S.
Exchange Agent shall, as promptly as practicable, distribute the proceeds
of such sale (the "CASH-IN-LIEU PAYMENTS"), without liability for interest,
after withholding of applicable taxes, to the tendering holders of Sonera
ADSs entitled thereto by means of a credit delivered by book-entry transfer
to the accounts of the applicable Participants at DTC maintaining accounts
for such tendering holders.
B. Fractional Entitlements to ADSs Delivered in The Form of ADR
Certificates.
The U.S. Exchange Agent shall aggregate fractional entitlements to ADSs
resulting from the valid tender of Sonera ADSs and instruct the U.S. Broker
to sell, as soon as reasonably practicable, such ADSs on NASDAQ. The U.S.
Exchange Agent shall, as promptly as practicable, distribute the
Cash-in-Lieu Payments, without liability for interest, after withholding of
the applicable taxes, to the tendering holders of Sonera ADSs entitled
thereto by means of a check in U.S. dollars delivered to such tendering
holders in accordance with the instructions provided in the corresponding
Letter of Transmittal.
XI. NO ACCEPTANCE OF TENDERS OF OTHER SECURITIES.
The U.S. Exchange Agent shall not accept in such capacity any tender of any
securities in the Exchange Offer other than Sonera ADSs and shall refuse
any attempted tenders of securities other than Sonera ADSs.
XII. LOSS, THEFT OR DESTRUCTION OF CERTIFICATES.
If any holder of Sonera ADSs reports to the U.S. Exchange Agent that such
holder's failure to surrender such holder's Sonera ADR certificate is due
to the loss, theft or destruction of such holder's Sonera ADR certificate,
the U.S. Exchange Agent shall require such holder to furnish an affidavit
of such loss, theft or destruction in customary form and substance
satisfactory to the U.S. Exchange Agent. Upon receipt of such
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affidavit and compliance with any other applicable requirements the U.S.
Exchange Agent may have, the U.S. Exchange Agent shall deliver, or cause to
be delivered, ADR evidencing the applicable number of ADSs to such person
as though he or she had surrendered his or her Sonera ADR certificate.
Notwithstanding any of the foregoing, when authorizing such delivery and
payment in exchange for any lost, stolen or destroyed Sonera ADR
certificate, the person to whom the delivery and payment is to be made
shall, as a condition precedent to such delivery and payment, provide a
bond of indemnity in a manner reasonably satisfactory to the U.S. Exchange
Agent and the Company, indemnifying the U.S. Exchange Agent against any
claim that may be made against the U.S. Exchange Agent or the Company with
respect to the Sonera ADR certificate alleged to have been lost, stolen or
destroyed.
XIII. ESCHEATMENT.
In the event that any holder of Sonera ADSs fails to surrender its Sonera
ADR(s) to the U.S. Exchange Agent, the U.S. Exchange Agent shall dispose of
the Property held in respect of such Sonera ADSs in accordance with
applicable U.S. abandoned property laws. The U.S. Exchange Agent shall
maintain records of the number of Sonera ADSs outstanding and unexchanged
and any amount of Property to be disposed of and shall provide copies
thereof to the Company upon the Company's reasonable request.
XIV. TAXES.
A. The exchange of ADSs for Sonera ADSs validly tendered to the U.S.
Exchange Agent in the U.S. Exchange Offer will likely be treated as a
taxable event for U.S. federal income tax purposes. The U.S. Exchange
Agent shall mail to the recipients of ADSs any tax reports and file
any reports with the U.S. Internal Revenue Service ("I.R.S.") in
respect of the Sonera ADSs tendered in the Exchange Offer.
B. On or before January 31st of the year following the year of the
Exchange Offer, the U.S. Exchange Agent will prepare and mail to each
holder of Sonera ADSs who has received ADSs and Cash-in-Lieu Payments
in accordance with the terms hereof, other than holders of Sonera ADSs
who demonstrate their status as nonresident aliens in accordance with
U.S. Treasury Regulations ("Non-U.S. Holders") or other recipients
providing evidence of exempt status, a Form 1099-B reporting
Cash-in-Lieu Payments delivered to such holders as of the year of
payment, to the extent required by, and in accordance with, U.S.
Treasury Regulations. The U.S. Exchange Agent will also prepare and
timely file copies of such Forms 1099-B by magnetic tape with the
I.R.S. ("I.R.S."), and take any further actions to the extent required
by, and in accordance with, U.S. Treasury Regulations. The Company
shall deliver to the U.S. Exchange Agent a report of the 'fair market
value' as determined in accordance with Finnish law pursuant to the
procedures governing the mandatory offer and the compulsory
acquisition, if any.
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C. If the U.S. Exchange Agent has not received notice from the
surrendering holder of Sonera ADSs of such holder's Taxpayer
Identification Number ("TIN"), or if such TIN has not been certified
as correct, the U.S. Exchange Agent shall deduct and withhold Backup
Withholding Tax at the rate then applicable from any cash payment made
to such holder (other than a Non-U. S. Holder) and remit such funds to
the I.R.S. in accordance with the U.S. Exchange Agent's standard
procedures.
D. Should any issue arise regarding U.S. federal income tax reporting or
withholding the U.S. Exchange Agent will take such action as the
Company instructs to the U.S. Exchange Agent in writing. The Company
agrees to reimburse the U.S. Exchange Agent for any reasonable costs
incurred in connection with such actions.
XV. MODIFICATION OF EXCHANGE OFFER.
The Company has reserved the right to terminate or amend the Exchange
Offer. In the event of an amendment to the Exchange Offer, the U.S.
Exchange Agent will follow the reasonable instructions of the Company with
respect to the amended Exchange Offer to the extent consistent with this
Agreement.
XVI. RESTRICTED ADRS.
In the event that any Sonera ADR certificate bearing a restrictive legend
is presented to the U.S. Exchange Agent for tender, the U.S. Exchange Agent
is instructed to delay issuance of ADSs or payment of any Cash-in-Lieu
Payment pending receipt of instructions from the Company.
XVII. MANDATORY OFFER AND COMPULSORY ACQUISITION.
The U.S. Exchange Agent shall cooperate with the Company in connection with
the implementation of mandatory offer and compulsory acquisition
procedures, if any, instituted by the Company in accordance with Finnish
law.
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SCHEDULE II
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF [SEPTEMBER 30], 2002 (THE "AGREEMENT"),
BY AND BETWEEN
TELIA AB AND CITIBANK, N.A.
--------------------
FEE SCHEDULE
--------------------
Please refer to the Fee Schedule attached.
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TELIA AB
EXCHANGE OF SONERA
AMERICAN DEPOSITARY SHARES
FOR TELIA AMERICAN DEPOSITARY SHARES
--------------------
FEE SCHEDULE
--------------------
EXCHANGE AGENCY SERVICE FEE............ Waived for services set forth in the
$[________] Exchange Agency Agreement,
dated as of [SEPTEMBER 30], 2002
TERMS OF FEE SCHEDULE
The fees presented herein are based on data currently available. If there are
any changes in the scope or complexity of the job requirements, the fees will be
reviewed and adjusted accordingly.
MISCELLANEOUS
The charges for performing services not contemplated at the time of the
execution of the documents or not specifically covered in this Fee Schedule will
be determined by appraisal in amounts commensurate with the service.
OUT-OF POCKET EXPENSES
Fees quoted do not include any out of-pocket expenses including, but not limited
to, legal fees, charges of foreign depositories, facsimile, stationery, postage,
telephone, overnight courier, and messenger costs.
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SCHEDULE III
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF [SEPTEMBER 30], 2002 (THE "AGREEMENT"),
BY AND BETWEEN
TELIA AB AND CITIBANK, N.A.
--------------------
TENDER DOCUMENTATION
--------------------
Exchange Offer Prospectus, dated [SEPTEMBER 30], 2002
Schedule 14D-9
Letter of Transmittal
Letter to Brokers, Dealers, Banks, Trust Companies, Custodians and Other
Nominees
Letter to Clients
Notice of Guaranteed Delivery
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SCHEDULE IV TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF [SEPTEMBER 30], 2002 (THE "AGREEMENT"),
BY AND BETWEEN
TELIA AB AND CITIBANK, N.A.
--------------------------
AUTHORIZED REPRESENTATIVES
--------------------------
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