• annual custody fees of one basis point calculated on a daily basis associated with the CDIs held by those shareholders who receive CDIs and hold them through the nominee service of CINL will be borne by the CDI holders.
4.3 Voting and attending meetings
As holders of CDIs will not be the legal owners of the underlying Shares, they may not be able to enforce or exercise certain of the rights afforded to the legal owners of the Shares under, inter alia, Finnish company law and the Company’s Articles of Association in the same way as the legal holders of Shares.
A CDI holder is entitled to receive dividends and to exercise all share subscription rights and other financial rights attached to the shares held in its name. A holder of CDIs may not, however, exercise any administrative rights attached to the underlying shares, such as the right to attend and vote at Shareholders’ meetings of the Company without first registering as a holder of the underlying Shares. A holder of CDIs wishing to exercise such rights must seek a temporary registration in the register of shareholders not later than ten days prior to the relevant shareholders’ meeting. Prior to any annual or extraordinary general meeting of Shareholder, CDI holders will be contacted by the Company (or by the Company’s Registrars on its behalf) and invited to seek such a temporary registration in order to enable them to attend and vote at the relevant meeting. By seeking temporary registrations for voting purposes, CDI holders will be agreeing to place their CDI holdings into escrow (thereby delaying settlement of any trades in respect of the CDIs put into escrow) from the deadline for receipt of instructions (at which point the instructions received will be reconciled against the CDI register) until the Finnish record date for the extraordinary general meeting of shareholders, which is anticipated to be a period of approximately five days.
4.4 Trading of CDIs
CDI holders who have their own CREST account will be able to trade their underlying Shares in the usual way.
4.5 Dividends
Shareholders who hold their Shares in the form of CDIs will be able to have dividends declared on Shares paid to them by CRESTCo Limited. Dividends will be paid to them in euro.
5. Lock-up arrangements
The Company, the Directors and certain other shareholders have each agreed to enter into certain lock-up arrangements. Approximately 50.9 per cent. of the issued and outstanding Shares immediately following Second Admission will be subject to lock-up arrangements. Further details of these lock-up arrangements are set out in paragraph 12.6 of Part XII: “Additional Information” of this Prospectus.
6. Selling and transfer restrictions
The distribution of this Prospectus and the offer of Shares in certain jurisdictions may be restricted by law and therefore persons into whose possession this Prospectus comes should inform themselves about and observe any such restrictions, including those in the paragraphs that follow. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction. No action has been taken or will be taken in any jurisdiction that would permit a public offering or sale of the Shares, or possession or distribution of this Prospectus or any other offering or publicity material relating to Shares, in any country or jurisdiction where action for that purpose is required.
None of the Shares may be offered for sale or purchase or be delivered, and this Prospectus and any other offering material in relation to the Shares may not be circulated, in any jurisdiction where to do so would breach any securities laws or regulations of any such jurisdiction or give rise to an obligation to obtain any consent, approval or permission, or to make any application, filing or registration.
No Shares have been marketed to, nor are available for purchase in whole or in part by, the public in the United Kingdom or elsewhere in conjunction with the Offering. This Prospectus does not constitute an offer or the solicitation of an offer in the United Kingdom to subscribe for or buy any securities in the Company or any other entity.
6.1 European Economic Area
In relation to each member state of the EEA which has implemented the Prospectus Directive (each, a “relevant member state”), with effect from and including the date on which the Prospectus Directive is implemented in that member state (the “Relevant Implementation Date”), the Shares may not be offered to the public in that relevant member state, except that, with effect from and including the Relevant Implementation Date, the Shares may be offered to the public in that relevant member state under the following exemptions under the Prospectus Directive:
(1) at any time to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities; (2) at any time to any legal entity which has two or more of (i) an average of at least 250 employees
during the last financial year, (ii) a total balance sheet of more than €43 million, and (iii) an annual net turnover of more than €50 million, as shown in its last annual or consolidated accounts;
(3) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Global Coordinators for any such offer; or
(4) in any other circumstances falling within Article 3(2) of the Prospectus Directive,
provided that no such offer of Shares shall result in a requirement for the publication by the Company, of a Prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Shares to the public” in relation to any Shares in any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and the Shares to be offered so as to enable an investor to decide to purchase or subscribe for the Shares, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in each relevant member state.
Each subscriber for or purchaser of Shares in the Offering located within a member state of the EEA will be deemed to have represented, acknowledged and agreed that it is a “qualified investor” within the meaning of Article 2(1)(e) of the Prospectus Directive. The Company, JPMorgan Cazenove, JPMorgan, Nordea and their affiliates, and others will rely upon the truth and accuracy of the foregoing representation, acknowledgement, and agreement. Notwithstanding the above, a person who is not a qualified investor and who has notified the Managers of such fact in writing may, with the consent of JPMorgan Cazenove, be permitted to subscribe for or purchase Shares in the Offering. 6.2 United States
The Shares have not been and will not be registered under the Securities Act or under the applicable securities laws of any state of the United States and may not be offered or sold within the United States unless registered under the Securities Act or a exemption thereunder is available. The Offering is being made outside the United States in reliance on Regulation S under the Securities Act. In addition, until 40 days after the commencement of the Offering, an offer or sale of any of the Shares within the United States by any dealer (whether or not participating in the Offering) may violate the registration requirements of the Securities Act.
The Shares may not be transferred or resold except: (i) pursuant to an effective registration statement under the Securities Act; (ii) in an offshore transaction in accordance with the requirements of Regulation S; or (iii) pursuant to an available exemption from the registration requirements of the Securities Act, and in accordance with all applicable U.S. state securities laws.
6.3 Japan
The Shares offered by this Prospectus have not been and will not be registered under the Securities and Exchange Law of Japan (the “Securities and Exchange Law”). Accordingly, the Shares may not be offered or sold, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (including Japanese corporations), or to others for reoffering or resale, directly or indirectly, in Japan or to, or for the benefit of, any resident in Japan (including Japanese corporations) except with the prior approval of JPMorgan Cazenove and pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Securities and Exchange Law and relevant regulations of Japan.
6.4 Australia
This Prospectus does not constitute a disclosure document under Part 6D.2 of the Corporations Act 2001 of the Commonwealth of Australia (the “Corporations Act”) and will not be lodged with the Australian Securities and Investment Commission. The Shares will be offered to persons who receive offers in Australia only to the extent that such offers of shares for issue or sale do not need disclosure to investors under Part 6D.2 of the Corporations Act. Any offer of shares received in Australia is void to the extent that it needs disclosure to investors under the Corporations Act. In particular, offers for the issue or sale of Shares will only be made in Australia in reliance on various exemptions from such disclosure to investors provided by section 708 of the Corporations Act. Any offer of shares received in Australia is void to the extent that it needs disclosure to investors under the Corporations Act. Any person to whom Shares are issued or sold pursuant to an exemption provided by section 708 of the Corporations Act must not within 12 months after the issue offer those Shares for sale in Australia unless that offer is itself made in reliance on an exemption from disclosure provided by that section. 6.5 Canada
The Shares may not, directly or indirectly, be offered or sold within Canada, or offered or sold to a resident of Canada, except with the prior approval of JPMorgan Cazenove on a basis exempt from any requirement to prepare and file a Prospectus with or to obtain clearances from the relevant securities regulatory authorities of any province or territory in Canada.
B. TERMS AND CONDITIONS OF THE OFFERING
1. Introduction
These terms and conditions apply to persons making an offer to subscribe for Shares under the Offering. Each person to whom these conditions apply, as described above, who confirms his agreement to JPMorgan Cazenove and/or Nordea to subscribe for Shares under the Offering (which may include JPMorgan Cazenove, Nordea or their respective nominee(s)) (an “Investor”) hereby agrees with each of JPMorgan Cazenove, Nordea and the Company to be bound by these terms and conditions as being the terms and conditions upon which Shares will be issued under the Offering. An Investor shall, without limitation, become so bound if JPMorgan Cazenove and/or Nordea: (a) confirms to such Investor its allocation of Offer Shares; and (b) notifies, on behalf of the Company, the Registrars of the name of the Investor.
2. Eligible participants in the Offering
Except for the employees of the Company and its subsidiaries in Finland, members of the public are not eligible to take part in the Offering. The terms and conditions set out herein are directed only to persons who have the professional experience in matters relating to investments falling within Article 19 (Investment Professionals) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the
“Order”) or are persons falling within Article 49 (“high net worth companies, unincorporated entities etc.”) of the Order or to whom it may otherwise lawfully be communicated (all such persons being referred to as
“relevant persons”). The terms and conditions set out herein must not be acted on or relied on by persons
who are not relevant persons. Any investment or investment activity to which the terms and conditions set out herein relate is available only to relevant persons and will be engaged in only with relevant persons.
3. Agreement to subscribe for Offer Shares
Conditional upon: (i) Admission occurring and becoming effective by 8.00 a.m. on 1 June 2007 (or such later time and/or date as the Company, JPMorgan Cazenove and Nordea may agree (being not later than 1 July 2007)); and (ii) the confirmation mentioned under paragraph 1 above, an Investor agrees to become a member of the Company and agrees to subscribe for Shares at the Offer Price. To the fullest extent permitted by law, each Investor acknowledges and agrees that it will not be entitled to exercise any remedy of rescission at any time. This does not affect any other rights such Investor may have.
The Placing Agreement contains certain undertakings and certain representations and warranties, including as to the accuracy of this document, given by the Company and the Directors for the benefit of JPMorgan Cazenove and Nordea, together with indemnities relating to certain potential liabilities of JPMorgan Cazenove and Nordea given by the Company in their favour. JPMorgan Cazenove and Nordea have an absolute discretion as to whether or not to bring an action for breach of these undertakings, representations and warranties and in connection with such indemnities. In addition, JPMorgan Cazenove and Nordea have certain rights to terminate the Placing Agreement prior to Admission becoming effective, inter alia, upon the occurrence of certain events or in the event of a breach of warranty. In the event that JPMorgan Cazenove or Nordea exercise these rights, all obligations and liabilities of Investors under the Offering will cease and JPMorgan Cazenove and/or Nordea will cause the return to each Investor, without interest, all monies received from that Investor pursuant to the terms of the Offering at the risk of that Investor.
In agreeing to subscribe for Shares under the Offering, each Investor is deemed to agree that, save in the event of fraud on its part (and to the extent permitted by the Rules of the Financial Services Authority), none of the JPMorgan Cazenove Group, the Nordea Group or any member of either of such group’s directors and employees shall be liable to it for any matter arising out of JPMorgan Cazenove’ role as sponsor, financial adviser, bookrunner, and lead manager or otherwise in connection with the Offering or Nordea’s role as co- lead manager and (together with JPMorgan Securities) joint underwriter or otherwise in connection with the Offering and that where any such liability nevertheless arises as a matter of law each Investor will immediately waive any claim against any member of the JPMorgan Cazenove Group and any member of the Nordea Group and any of such groups’ directors and employees which it may have in respect thereof. In this paragraph “JPMorgan Cazenove Group” means JPMorgan Cazenove, its ultimate holding company and all direct and indirect subsidiary undertakings of that holding company and “Nordea Group” means Nordea, its ultimate holding company and all direct and indirect subsidiary undertakings of that holding company.
4. Payment for Offer Shares
Each Investor undertakes to pay the Offer Price for the Shares issued to such Investor in such manner as shall be directed by JPMorgan Cazenove and/or Nordea.
In the event of any failure by any Investor to pay as so directed by JPMorgan Cazenove, Nordea or the Company, the relevant Investor shall be deemed hereby to have appointed JPMorgan Cazenove, Nordea or any nominee of JPMorgan Cazenove or Nordea to sell (in one or more transactions) any or all of the Shares in respect of which payment shall not have been made as so directed and to have agreed to indemnify on demand JPMorgan Cazenove and Nordea in respect of any liability for stamp duty and/or stamp duty reserve tax arising in respect of any such sale or sales. Save as set out in this paragraph no expenses or taxes are to be specifically charged to Investors.
5. Representations and warranties
5.1 By receiving this document, each Investor and, in the case of paragraphs (F) and (G) below, any person confirming his agreement to subscribe for Shares in the Offering on behalf of an Investor or
authorising JPMorgan Cazenove or Nordea to notify an Investor’s name to the Registrars, will be deemed to represent and warrant to each of JPMorgan Cazenove, Nordea and the Company that: (A) the Investor has read this document in its entirety and acknowledges that its participation in the
Offering shall be made on the terms and subject to the conditions set out in this Part X.B, the Placing Agreement and the Articles of Association of the Company as in force at the date of Admission;
(B) if the Investor is a natural person, such Investor is not under the age of majority (18 years of age in the United Kingdom) on the date of such Investor’s agreement to subscribe for Shares under the Offering and will not be any such person on the date any such offer is accepted; (C) in agreeing to subscribe for Shares under the Offering, the Investor is relying on this Prospectus
and any supplementary prospectuses issued by the Company, and not on any other information or warranty or representation concerning the Company or the Offering. Such Investor acknowledges that the content of this Prospectus and any supplementary prospectus is exclusively the responsibility of the Company and that neither JPMorgan Cazenove nor Nordea has or shall have any liability for any information, representation or statement contained therein or any information previously published by or on behalf of the Company and will not be liable for any Investor’s decision to subscribe for Shares based on any information, representation or statement contained in the Prospectus or otherwise. Each Investor represents, warrants and agrees that the only information on which it is entitled to rely and on which such Investor has relied in committing to subscribe for the Shares is contained in the Prospectus and any supplementary prospectus, such information being all that it deems necessary to make an investment decision in respect of the Shares and that it has relied on its own investigation with respect to the Shares and the Company in connection with its decision to subscribe for Shares; (D) it acknowledges that neither of JPMorgan Cazenove nor Nordea nor any of their respective affiliates nor any person acting on behalf of JPMorgan Cazenove or Nordea or their respective affiliates nor the Company and its affiliates has provided, and will not provide it with any material regarding the Shares or the Company other than the Prospectus, nor has it requested JPMorgan Cazenove or Nordea or any of their respective affiliates to provide it with any such information;
(E) it (and any person acting on its behalf) is entitled to subscribe for the Shares under the laws of