Nokia Corporation Debt Securities Underwriting Agreement Standard Provisions
Exhibit 1.1
Nokia Corporation
Debt Securities
Underwriting Agreement Standard Provisions
, 2009
To the representatives (the “Representatives”) named from
time to time in the applicable Pricing Agreement (as defined below)
Ladies and Gentlemen:
From time to time, Nokia Corporation, a corporation organized under the laws of the Republic
of Finland (the “Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing
Agreement”) in the form of Annex I hereto with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated in this Agreement and in the
applicable Pricing Agreement, proposes to issue and sell to the several firms named in Schedule I
to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to
such Pricing Agreement and the securities specified therein) certain of its debt securities (the
“Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the “Designated Securities”), such Securities to be issued under an indenture to be
dated as of , 2009 between the Company and Law Debenture Trust Company of New York, as trustee
(the “Trustee”), as amended and supplemented (the “Indenture”).
Whenever the Company determines to make an offering of Securities, the Company will enter into
a Pricing Agreement providing for the sale of the applicable Securities to, and the purchase and
offering thereof by, the Underwriters for which the firms designated as representatives of the
Underwriters of such Securities in the applicable Pricing Agreement will act as Representatives.
The term “Representatives” also refers to a single firm acting as sole representative of the
Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its
or their representatives. The Pricing Agreement relating to the Designated Securities shall
specify the type of Securities to be issued, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the number of
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Designated Securities which each such Underwriter severally and not jointly agrees to
purchase, the price at which the Designated Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the time and place of delivery and payment, and
other specific terms.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form F-3 (File No. 333-149890) in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date of the applicable Pricing
Agreement; such registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and, to the best of the Company’s knowledge,
no proceeding for that purpose has been initiated or threatened by the Commission, and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Company (the base prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission on or prior to the date
of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part
of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item 6 of Form
F-3 under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any
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post-effective amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act
and any documents filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free writing prospectus” as
defined in Rule 433 under the Act relating to the Securities is hereinafter called an
“Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”) and the rules and regulations of the Commission thereunder;
(c) For the purposes of this Agreement and the applicable Pricing Agreement, the
“Applicable Time” is the time specified as such in such Pricing Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section
5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”) as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule III of the applicable Pricing Agreement does not conflict
with the information contained in the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
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(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder; any further
documents so filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date of the
applicable Pricing Agreement and prior to the execution of such Pricing Agreement, except
as set forth on Schedule III of such Pricing Agreement;
(e) On the date of its effectiveness, the Registration Statement conformed, and, when
first filed in accordance with Rule 424(b) of the Act and at the Time of Delivery (as
defined below), the Prospectus and any further amendments or supplements to the Prospectus
will conform, in all material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and the Prospectus
will not, as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representatives expressly for use
therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus, which has resulted or would result in a Material Adverse Effect; and,
since the respective dates as of which information is given in the Pricing Prospectus,
except as otherwise stated therein or contemplated in the Pricing Prospectus, there has not
been (A) any Material Adverse Effect, (B) any material change in the capital stock or
long-term debt of the Company (considered together with its subsidiaries) or any of its
Significant Subsidiaries or (C) any material transaction entered into by the Company or any
subsidiary other than in the ordinary
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course of business that is material to the Company and its subsidiaries, considered as
one enterprise. “Material Adverse Effect” shall mean a material adverse change, or any
development involving a prospective material adverse change, in or affecting financial
condition, earnings or general affairs, prospects or management of the Company and its
subsidiaries, considered as one enterprise. “Significant Subsidiary” shall mean any
subsidiary listed on Schedule I hereto;
(g) The Company and its Significant Subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except such as are
described in the Pricing Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by
the Company and its Significant Subsidiaries; and any real property and buildings held
under lease by the Company and its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the
Company and its Significant Subsidiaries;
(h) The Company has been duly incorporated and is validly existing under the laws of
the Republic of Finland, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing Prospectus; and each
Significant Subsidiary has been duly incorporated and is validly existing under the laws of
its jurisdiction of incorporation;
(i) The Securities have been duly authorized and, when issued and delivered pursuant
to the applicable Pricing Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture under which they are to be issued, which
is substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture Act and,
assuming due execution and delivery by the Trustee, constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles; the Company has requisite
power to perform its obligations under the Securities and the Indenture; and the Securities
and the Indenture will conform to the descriptions thereof in the Pricing Disclosure
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Package and the Prospectus and will be in substantially the forms previously delivered
to you;
(j) Prior to the issuance of the Designated Securities, the applicable Pricing
Agreement will be duly authorized and delivered by the Company;
(k) None of the transactions contemplated by this Agreement and the applicable Pricing
Agreement (including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation, Regulations T, U, and X
of the Board of Governors of the Federal Reserve System;
(l) Prior to the date of the applicable Pricing Agreement, neither the Company nor any
of its affiliates has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or manipulation of the
price of any security of the Company in connection with the offering of the Designated
Securities relating thereto;
(m) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture, this Agreement and the applicable Pricing
Agreement and the consummation of the transactions herein and therein contemplated will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its Significant Subsidiaries
is a party or by which the Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Significant Subsidiaries
is subject, and (ii) nor will such action result in any violation of (a) the provisions of
the Articles of Association of the Company or any statute or any order, rule or
(b) regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their properties, except, as to
(i) and (ii)(b) only, where such breach, violation or default would not result in a
Material Adverse Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Pricing Agreement or the Indenture except
such as have been obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
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distribution of the Securities by the Underwriters, except where such failure to
obtain such consent, approval, authorization, order, registration or qualification would
not result in a Material Adverse Effect;
(n) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Articles of Association or other governing documents or in default in the performance or
observance of any material obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument, in each
case, that is material to the Company and its Significant Subsidiaries and to which it is a
party or by which it or any of its properties may be bound;
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Notes”, insofar as they purport to constitute a summary of the
terms of the Securities, under the captions “Taxation” and “Underwriting”, insofar as they
purport to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of the Company’s knowledge,
no such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(q) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be required to register as
an “investment company”, as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(r) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the time of execution of the
applicable Pricing
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Agreement, the Company was not an “ineligible issuer” as defined in Rule 405 under the
Act;
(s) PricewaterhouseCoopers Oy, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over
financial reporting and management’s assessment thereof are independent public accountants
as required by the Act and the rules and regulations of the Commission thereunder;
(t) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(u) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting;
(v) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its consolidated subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective;
(w) Neither the Company nor any of its significant subsidiaries (within the meaning of
Regulation S-X of the Securities Act), nor any of their respective directors, officers,
employees or affiliates is, to the knowledge of the Company, a person with whom
transactions are currently prohibited under list based or territorial based sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”) or equivalent European Union measure (collectively, “Sanctions”); the Company
agrees that it will not knowingly directly or indirectly use the proceeds of the offering
and sale of the Securities, or
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lend, contribute or otherwise make available such proceeds to any person or entity, or
any subsidiary, joint venture partner or sub-division of such other person or entity to
fund any activities or business of or with any person, or in any country or territory,
that, at the time of such funding is the subject of Sanctions; it being understood that the
Company and its Significant Subsidiaries have sales of devices and network equipment as
described under the caption “4B. Business Overview—Sales in sanctioned countries—Devices &
Services, NAVTEQ and Nokia Siemens Networks” of the Company’s Form 20-F for the year ended
December 31, 2008 filed with the Commission;
(x) Neither the Company nor any of its significant subsidiaries (within the meaning of
Regulation S-X of the Securities Act) nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of
or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “Foreign Corrupt Practices Act”); and the Company, its
significant subsidiaries (within the meaning of Regulation S-X of the Securities Act) and,
to the knowledge of the Company, its affiliates have instituted and maintain policies and
procedures designed to ensure continued compliance therewith;
(y) The consolidated historical financial statements of the Company and its
consolidated subsidiaries included in the Pricing Prospectus and the Prospectus present
fairly the financial condition, results of operations and cash flows of the Company and its
consolidated subsidiaries as of the dates and for the periods indicated and have been
prepared in conformity with International Financial Reporting Standards as adopted by the
European Union applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the selected financial data set forth under the caption “Selected
Consolidated Financial Information” in the Pricing Prospectus and the Prospectus fairly
present, on the basis stated in the Pricing Prospectus and the Prospectus, the information
included therein.
(z) The operations of the Company and each of its significant subsidiaries (within the
meaning of Regulation S-X of the Securities Act) are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before
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any court or governmental agency, authority or body or any arbitrator involving either
the Company or any of its significant subsidiaries (within the meaning of Regulation S-X of
the Securities Act) is pending or, to the best knowledge of the Company, threatened;
(aa) No stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable by or on behalf of the Underwriters to the
Republic of Finland or any political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Company to or for the respective
accounts of the Underwriters of the Securities or (B) the sale and delivery outside the
Republic of Finland by the Underwriters of the Securities to the initial purchasers
thereof;
(bb) Neither the Company nor any of its properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise) under the laws
of the Republic of Finland;
(cc) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with any provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 relating to loans and Sections
302 and 906 relating to certifications.
2. Upon the execution of the Pricing Agreement applicable to any Designated Securities,
subject to the terms and conditions set forth herein and in such Pricing Agreement, the Company
agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the applicable principal amount of such
Designated Securities set forth with respect to such Underwriter in such Pricing Agreement. The
Company will not be obligated to deliver any of the Designated Securities except upon payment for
all such Designated Securities to be purchased as provided herein and in the applicable Pricing
Agreement.
3. Upon the authorization by you of the release of the Designated Securities, each Underwriter
agrees that it will not offer, sell or deliver any of the Designated Securities in any jurisdiction
outside the United States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever action is required to
permit its purchase and resale of the Designated Securities in such jurisdictions. Each
Underwriter understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for
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such purpose. Each Underwriter agrees not to cause any advertisement of the Designated
Securities to be published in any newspaper or periodical or posted in any public place and not to
issue any circular relating to the Designated Securities, except in any such case with express
written consent of the Representatives and then only at its own risk and expense.
4. (a) The Designated Securities to be purchased by each Underwriter under an applicable
Pricing Agreement will be represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with The Depository Trust Company
(“DTC”) or its designated custodian. The Company will deliver the Designated Securities to the
Representatives, for the account of each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the
account designated by the Company to the Representatives, by causing DTC to credit the Designated
Securities to the account of the Representatives at DTC. The Company will cause the certificates
representing the Designated Securities to be made available to the Representatives at least
twenty-four hours in advance for checking prior to the Time of Delivery (as defined below) at the
office of Xxxxx Xxxx & Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (the “Closing Location”). The
time and date of such delivery and payment shall be 9:30 a.m., New York City time, on the fifth New
York Business Day (as defined below) following the date of the applicable Pricing Agreement or such
other time and date as the Representatives and the Company may agree upon in writing. Such time
and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Designated Securities and
any additional documents requested by the Underwriters pursuant to Section 8(k) hereof, will be
delivered at such time and date at the “Closing Location”, and the Designated Securities will be
delivered at the DTC or its designated custodian, all at the Time of Delivery. A meeting will be
held at the Closing Location at the time specified in the applicable Pricing Agreement on the New
York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in relation to the applicable Designated Securities in a form
approved by you (such approval not to be unreasonably
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withheld) and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day following the date of the applicable
Pricing Agreement; to make no further amendment or any supplement to the Registration Statement,
the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by
you, acting reasonably, promptly after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to
furnish you with copies thereof; to prepare a final term sheet, containing solely a description of
the Designated Securities and substantially in the form attached as Schedule II to the applicable
Pricing Agreement, in a form approved by you and to file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule; to file promptly all other material required
to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with
the offering or sale of the Designated Securities; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Designated
Securities, of any notice of objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension
of the qualification of the Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending
any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
and in the event of any such issuance of a notice of objection, promptly to take such steps
including, without limitation, amending the Registration Statement or filing a new registration
statement, at its own expense, as may be reasonably necessary to permit offers and sales of the
Designated Securities by the Underwriters (references herein to the Registration Statement shall
include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you (such approval not to be unreasonably withheld) and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act;
and to make no further amendment or supplement to such form of prospectus which shall be
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disapproved by you, acting reasonably, promptly after reasonable notice therereof;
(c) The Company will use commercially reasonable efforts in cooperation with the
Representatives to qualify the Designated Securities for offering and sale under the securities
laws of such jurisdictions as you may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for as long as may be
reasonably necessary to complete the distribution of the Designated Securities, provided that in
connection therewith the Company shall not be required to (i) qualify as a foreign corporation or a
dealer in securities, (ii) subject itself to taxation in respect of doing business, or (iii) file a
general consent to service of process in any jurisdiction;
(d) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of the applicable Pricing Agreement and from time to time, to furnish the Underwriters with
written and electronic copies of the Prospectus in New York City in such quantities as you may
reasonably request, without charge, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the offering or sale of
the Designated Securities and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify
you and upon your request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) in connection with sales of any of the Designated Securities at any time nine months or
more after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as
you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
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(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its consolidated
subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the Company, Rule 158), which
provision with respect to any issuance of Designated Securities shall be satisfied by the
subsequent filing of the Company’s annual report on Form 20-F with the Commission;
(f) During the period beginning from the date hereof and continuing until the Time of
Delivery, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Securities without your prior written consent, it being
understood that debt securities with maturities of less than one year are not substantially similar
to the Securities;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
(h) To use the net proceeds received by it from the sale of the Securities pursuant to the
applicable Pricing Agreement in the manner specified in the Pricing Prospectus under the caption
“Use of Proceeds”.
6. (a) (i) The Company represents and agrees that, other than the final term sheet prepared
and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has
not made and will not make any offer relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the
Company and the Representatives, other than one or more term sheets approved by the
Company relating to the Designated Securities containing customary information and
conveyed to purchasers of Designated Securities, it has not made and will not make any
offer relating to the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the use of which has been consented to by the
Company and the Representatives (including the final term sheet prepared and filed
pursuant to Section 5(a) hereof) is listed on Schedule III of the applicable Pricing
Agreement;
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(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. Whether or not the transactions contemplated in the applicable Pricing Agreement are
consummated or such Pricing Agreement is terminated, the Company covenants and agrees with the
several Underwriters that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in connection with the
registration of the Designated Securities under the Act and all other expenses in connection with
the preparation, printing, reproduction and filing of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
any amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the costs (excluding any fees of the Underwriters’ counsel(s)) of
printing or producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, the
Indenture, any Blue Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the Designated Securities
for offering and sale under state securities laws as provided in Section 5(d) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such qualification and in
connection with any Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Designated Securities; (v) the cost of preparing the Designated
Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Indenture and the Designated
Securities; and (vii) all other costs and
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expenses incident to the performance of its obligations under this Agreement and the
applicable Pricing Agreement which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees, disbursements and
expenses of their counsel, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters under this Agreement and the applicable Pricing
Agreement shall be subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the date hereof and the
Time of Delivery, true and correct, the condition that the statements of the Company and its
respective officers made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Time of Delivery, the condition that the Company shall have performed all
of its covenants and obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxx Xxxx & Xxxxxxxx, U.S. counsel for the Underwriters, shall have furnished to you an
opinion and a 10b-5 disclosure letter, dated the Time of Delivery, in form and substance reasonably
satisfactory to you, with respect to such matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Shearman & Sterling LLP, U.S. counsel for the Company, shall have furnished to you their
written opinion and 10b-5 disclosure letter, dated the Time
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of Delivery, in form and substance reasonably satisfactory to you (to the effect of Annex II
hereto);
(d) In-house counsel for the Company shall have furnished to you their written opinion, dated
the Time of Delivery and addressed to the Underwriters, in form and substance reasonably
satisfactory to you (to the effect of Annex III hereto);
(e) Roschier, Attorneys Ltd., Finnish counsel for the Company, shall have furnished to you
their written opinion dated the Time of Delivery and addressed to the Underwriters, in form and
substance reasonably satisfactory to you (to the effect of Annex IV hereto);
(f) On the date of the applicable Pricing Agreement and at the Time of Delivery,
PricewaterhouseCoopers Oy shall have furnished to the Representatives letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to you;
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus
which has resulted or would result in a Material Adverse Effect, and (ii) since the respective
dates as of which information is given in the Pricing Prospectus there shall not have been (A) any
change in the capital stock or long term debt of the Company or (B) any Material Adverse Effect,
otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in your judgment so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in this Agreement, the applicable
Pricing Agreement and the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by Standard & Poor’s Rating Services (a division of The
XxXxxx-Xxxx Companies, Inc.) or Xxxxx’x Investors Service, Inc. and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s debt securities;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or the Nasdaq OMX Nordic
-17-
Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on
the New York Stock Exchange or the Nasdaq OMX Nordic Exchange; (iii) a general moratorium on
commercial banking activities declared by any of United States Federal, New York State or Finnish
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States or the Republic of Finland; (iv) the outbreak or escalation of
hostilities involving the United States or the Republic of Finland or the declaration by the United
States or the Republic of Finland of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States, the Republic of Finland or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the manner contemplated
in the Prospectus;
(j) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of the
applicable Pricing Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations under this Agreement and the applicable
Pricing Agreement to be performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (f) and (g) of this Section and as to such other matters as you may reasonably
request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus, or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
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alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
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connection with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Designated Securities. If,
however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred
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to above in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total price at which the
Designated Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
affiliate of each Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Designated
Securities which it has agreed to purchase under the applicable Pricing Agreement, you may in your
discretion arrange for you or another party or other parties to purchase such Designated Securities
on the terms contained herein. If within thirty six hours after such default by any Underwriter
you do not arrange for the purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty six hours within which to procure another party or other
parties satisfactory to you to purchase such Designated Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Designated Securities, or the Company notifies you that it has so arranged
for the purchase of such Designated Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in your opinion may thereby be made necessary.
The term “Underwriter” as used in this Agreement shall include any person substituted under this
Section with like effect
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as if such person had originally been a party to the applicable Pricing Agreement with respect
to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Designated Securities which remains unpurchased does
not exceed one eleventh of the aggregate principal amount of all the Designated Securities, then
the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Designated Securities which such Underwriter agreed to purchase under the
applicable Pricing Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated Securities which such
Underwriter agreed to purchase in the applicable Pricing Agreement) of the Designated Securities of
such defaulting Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh
of the aggregate principal amount of all the Designated Securities, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then the applicable
Pricing Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof;
but nothing herein or in the applicable Pricing Agreement shall relieve a defaulting Underwriter
from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Designated Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9
hereof; but, if for any other reason, the Designated Securities are not delivered by or on behalf
of the Company as
-22-
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Designated Securities, but the Company shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13. In all dealings under this Agreement and the applicable Pricing Agreement, you shall act
on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you
jointly as the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing. Notices to
the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
Representatives as specified in the applicable Pricing Agreement. Notices to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement and the applicable Pricing Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9
and 11 hereof, the officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this Agreement or the
applicable Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. The Company irrevocably (i) agrees that any legal suit, action or proceeding against the
Company brought by any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or an applicable Pricing Agreement or the transactions contemplated
hereby may be instituted in any state or federal court in the State and County of New York, United
States of America (a “New York Court”), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of any such proceeding
and (iii) submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company
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has appointed Xxxxxxxx X. Xxxxx, 102 Corporate Park Drive, White Plains, New York, New York,
as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action
arising out of or based on this Agreement or an applicable Pricing Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any Underwriter or by any
person who controls any Underwriter, expressly consents to the jurisdiction of any such court in
respect of any such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company represents
and warrants that the Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as aforesaid. Service
of process upon the Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
16. In respect of any judgment or order given or made for any amount due hereunder that is
expressed and paid in a currency (the “judgment currency”) other than United States dollars, the
Company will indemnify each Underwriter against any loss incurred by such Underwriter as a result
of any variation as between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of
exchange at which an Underwriter is able to purchase United States dollars with the amount of
judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include
any premiums and costs of exchange payable in connection with the purchase of or conversion into
United States dollars.
17. Time shall be of the essence of this Agreement and any applicable Pricing Agreement. As
used herein, the term “business day” shall mean any day when the Commission’s office in Washington,
D.C. is open for business.
18. The Company acknowledges and agrees that (i) the purchase and sale of the Designated
Securities pursuant to any Pricing Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith
and with the process leading to such transaction each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and an applicable Pricing
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Agreement and (iv) the Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
19. This Agreement, as modified and incorporated into the applicable Pricing Agreement,
supersedes all prior agreements and understandings (whether written or oral) between the Company
and the Underwriters, or any of them, with respect to the subject matter hereof.
20. This Agreement and any Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
21. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement and any Pricing Agreement or the transactions contemplated hereby.
22. Any Pricing Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
23. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters, imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
-25-
SCHEDULE I
Nokia Siemens Networks B.V.
Sch-I-1
ANNEX I
[Form of Pricing Agreement]
Nokia Corporation
$[•] [•]% Notes due 20[•]
Pricing Agreement
[Date]
[Representatives]
As Representatives of the several Underwriters
named in Schedule I hereto.
named in Schedule I hereto.
Ladies and Gentlemen:
Nokia Corporation, a public limited company incorporated under the laws of the
Republic of Finland (the “Company”), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement dated [•] a copy of which is attached
hereto as Annex I (the “Underwriting Agreement”), to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) $[•] principal amount of its
[•]% Notes due 20[•] (the “Notes” or the “Designated Securities”)
pursuant to an indenture to be dated as of [•] between the Company and Law Debenture
Trust Company of New York, as trustee (the “Trustee”), as supplemented by the [•]
supplemental indenture to be dated as of [•] among the Company, the Trustee and
[•], as indenture agent. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full herein, as
amended and modified herein, as applicable; and each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the “Representatives” herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined. The Representatives designated to act on behalf of each of the
Underwriters of the Designated
Securities pursuant to Section 15 of the Underwriting Agreement and the address of
the Representatives referred to in such Section 15 are set forth at the end of Schedule II
hereto.
A supplement to the Prospectus relating to the Designated Securities in the form
heretofore delivered to you is now proposed to be filed with the Commission (the
“Prospectus Supplement”).
The Applicable Time for purposes of this Pricing Agreement is [• ]:00 p.m.
Eastern Standard Time on the date hereof. Each “free writing prospectus” as defined in
Rule 405 under the Securities Act for which each party hereto has received consent to use
in accordance with Section 6 of the Underwriting Agreement is listed in Schedule III
hereto.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees that the Company will issue
and sell to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto at a price equal to [• ]% of the principal
amount of the Notes plus accrued interest, if any, from [• ] to the Time of Delivery.
Each Underwriter agrees to comply with the selling restrictions set forth in the
Prospectus Supplement under the caption “Underwriting”.
Notices to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to you as the Representatives: [Representatives and contact details].
If the foregoing is in accordance with your understanding, please sign and return to
us one for the Company and each of the Representatives counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the Company for
examination upon request.
2
| Very truly yours, Nokia Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
[Representatives]
By: [Representatives]
By: |
||||
| Title: | ||||
| Acting on behalf of each of the several | ||||
| Underwriters listed in Schedule I hereto |
SCHEDULE I
| Principal | ||||
| Amount of | ||||
| Underwriters | Notes | |||
[Representatives] |
$ | [•] | ||
[Other Underwriters, if any] |
[•] | |||
Total |
$ | [•] | ||
SCHEDULE II
NOKIA CORPORATION
$[•] [•]% Notes due [•]
Pricing Term Sheet
[•]
[•]
Issuer: |
Nokia Corporation | |
Title |
[•] Notes due 20[•] | |
Expected Ratings: |
||
Aggregate Principal Amount: |
US$[•] | |
Price to Public |
[•] % of the principal amount, plus accrued interest from [•] | |
Maturity Date: |
[•] | |
Redemption Price at Maturity: |
100% | |
Interest Rate: |
[•]% per annum | |
Interest Payment Dates: |
Each [•] and [•], commencing [•] | |
Yield to Maturity: |
[•] [•] | |
Spread to Benchmark Treasury: |
[•] [•] | |
Benchmark Treasury: |
||
Benchmark Treasury Yield: |
||
Redemption Provisions: |
||
Make Whole Call Discount |
||
Factor: |
||
Tax Redemption: |
||
Business Days: |
New York City, Helsinki | |
CUSIP/ISIN: |
[•]/[•] | |
Bookrunners: |
||
Settlement: |
Note: A securities rating is not a recommendation to buy sell or hold securities and may be subject to
revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
[Representatives] at [•] or [•].
SCHEDULE III
| (a) | Issuer Free Writing Prospectus[es]: | ||
| Final term sheet dated [•] containing the final terms of the Designated Securities |
| (b) | Underwriter Free Writing Prospectuses: | ||
| [List, if any] | |||
| (c) | Additional Documents Incorporated by Reference: | ||
| [List, if any] |
ANNEX I TO THE PRICING AGREEMENT
Underwriting Agreement Standard Provisions
ANNEX II
Form
of Opinion and 10b-5 Disclosure Letter of Shearman & Sterling LLP
A-II-1
ANNEX III
Form of Opinion of Company In-house Counsel
A-III-1
ANNEX IV
Form of Opinion of Roschier, Attorneys Ltd.
A-IV-1
