EXHIBIT 4.2
RIGHTS AGENCY AGREEMENT
RIGHTS AGENCY AGREEMENT dated as of November 9, 2001, between SONERA
CORPORATION, a company incorporated under the laws of the Republic of Finland
(the "Company"), and CITIBANK, N.A., a national banking association organized
under the laws of the United States of America acting solely in its capacity as
Rights Subscription Agent hereunder and having an office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Citibank").
WITNESSETH THAT:
WHEREAS, the Company is issuing transferable rights (the "Share Rights") to
holders ("Shareholders") of its ordinary shares, no nominal value (such shares,
the "Shares", and such issuance, the "Issuance"), upon the terms and subject to
the conditions set forth in the Prospectus, dated November 9, 2001 and included
as Exhibit A hereto, as it may be amended from time to time (the "Prospectus").
Each Share Right consists of (1) a specified number transferable primary share
rights (the "Primary Share Rights") allowing holders thereof to purchase a
specified number of Shares that the Company is offering and
(2) non-transferable secondary share rights (the "Secondary Share Rights")
allowing Shareholders of record on November 14, 2001 who have exercised some or
all of their Primary Share Rights to purchase a portion of any Shares that are
not subscribed for pursuant to the exercise by Shareholders of Primary Share
Rights, in each case as described in the Prospectus;
WHEREAS, the Issuance shall include the issuance of rights (the "ADS
Rights") to holders of Shares represented by American Depositary Shares ("ADSs")
evidenced by American Depositary Receipts ("ADRs") issued pursuant to the terms
of the Deposit Agreement dated as of October 12, 1999 (the "Original Deposit
Agreement") by and among the Company, Citibank, N.A., as Depositary (the
"Depositary") and all Holders and Beneficial Owners of ADSs (as defined
therein), as amended by Amendment No. 1 to Deposit Agreement, dated as of
April 26, 2001 (the Original Deposit Agreement as so amended, the "Deposit
Agreement"). Each ADS Right consists of (1) transferable primary ADS rights (the
"Primary ADS Rights") allowing holders thereof to purchase a specified number of
the Shares (in the form of ADSs) that the Company is offering and
(2) non-transferable secondary ADS rights (the "Secondary ADS Rights") allowing
ADS Holders of record on November 14, 2001 who have exercised some or all of
their Primary ADS Rights to purchase a portion of any new Shares (in the form of
ADSs) that are not subscribed for pursuant to the exercise by Shareholders of
Primary Share Rights, in each case as described in the Prospectus; and
WHEREAS, the Company has requested that Citibank act as Rights Subscription
Agent ("Agent"), upon the terms and subject to the conditions set forth in this
Agreement and in addition to its services as Depositary, and Citibank is willing
to acceptsuch appointment, upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
As used herein, the terms listed below shall have the meanings specified,
with terms defined in the singular having a corresponding meaning in the
plural and vice versa. Capitalized terms used in this Agreement without
definition shall have the meaning assigned thereto in the Prospectus.
ADRs has the meaning ascribed thereto in the recitals hereto.
ADS Rights has the meaning ascribed thereto in the recitals hereto.
ADS(s) has the meaning ascribed thereto in the recitals hereto; each ADS
represents one Share.
ADS Subscription Price means the U.S. dollar amount which holders of
Warrants (as hereinafter defined) must deliver to the Agent upon exercise of
ADS Rights, as specified in the Warrant Certificate (as defined below) and
the Prospectus.
Agent has the meaning given in the recitals hereto.
Agreement means this Rights Agency Agreement, as the same way be amended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
Commencement Date means the first date on which the ADS Rights shall be
exercisable, being November 15, 2001.
Commission means the United States Securities and Exchange Commission.
Company Notice means the notice to be mailed by the Agent on behalf of the
Company to the holders of ADRs on the register of the Depositary on the
Record Date, as provided in Paragraph 7 hereof.
Deposit Agreement has the meaning ascribed thereto in the recitals hereto.
Depositary means Citibank in its capacity as Depositary under the Deposit
Agreement.
Effective Date means the date on which the Registration Statement (defined
below) is declared effective by the Commission.
Expiration Date means the date on or prior to which the payment of the ADS
Subscription Price must be received by the Agent, being the date on which
the ADS Rights, the Warrants and Warrant Certificates will expire, which
will be 10:00 a.m. (New York City time) on November 21, 2001, or such other
date as many be agreed in writing by the Company and the Agent for the
expiration of such ADS Rights, the Warrants and Warrant Certificates (as
defined below).
Holders shall mean the person registered in the books of the Depositary as
holding the ADRs as of the close of business in New York on the Record Date
(as defined below).
New ADSs has the meaning ascribed hereto in Paragraph 2 hereof.
Primary ADS Rights shall have the meaning given in the recitals hereto.
Primary ADS Rights are transferable.
Prospectus has the meaning ascribed thereto in the recitals hereto.
Record Date means the date for determination of the Holders of ADRs entitled
to receive ADS Rights which will be the close of business in New York City
on November 14, 2001, or such later date as may be established by agreement
between the Company and the Agent for determination of the Holders of ADRs
entitled to receive ADS Rights in respect thereof.
Registration Statement means collectively the Registration Statement on
Form F-3 filed with the Commission in respect of the Share Rights, the ADS
Rights, the Shares and the ADSs issuable upon the exercise of such Share
Rights and ADS Rights, respectively, including all exhibits thereto, as
amended at the time such Registration Statement becomes effective under the
Securities Act.
Rights Offering means the offer by the Company of New ADSs by way of ADS
Rights evidenced by Warrant Certificates (as defined below).
Secondary ADS Rights shall have the meaning given in the recitals hereto.
Secondary ADS Rights are not transferable.
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Securities Act means the United States Securities Act of 1933, as amended.
Share Rights has the meaning ascribed thereto in the recitals hereto.
Shares has the meaning ascribed thereto in the recitals hereto.
Subscription Price means the U.S. dollar equivalent of the subscription
price paid to the Company in respect of each Share Right exercised.
Warrant(s) has the meaning ascribed thereto in the Paragraph 2 hereof.
Warrant Certificate means a transferable certificate evidencing Warrants
representing ADS Rights, substantially in the form attached hereto as
Exhibit B.
2. RIGHTS OFFER.
The Company will offer Holders one transferable Primary ADS Right for [every
two (2)] ADS held of record on the Record Date. [Two (2)] ADS Right will
entitle the holder thereof to subscribe for one (1) new ADS ("New ADS") at
the ADS Subscription Price. The holder may exercise Primary ADS Rights only
in units of two (2) , equivalent to one (1) New ADSs. No fractions of New
ADSs will be issued. The Company will also offer Holders of record on the
Record Date Secondary ADS Rights, allowing such Holders who exercise a
portion of their Primary ADS Rights to specify an additional number of New
ADSs that they would subscribe for in the event that any new Shares that are
not subscribed for pursuant to the exercise by Shareholders of Primary Share
Rights.
ADS Rights will be presented by transferable warrants ("Warrants") and will
be evidenced by Warrant Certificates. The ADS Rights (and the Warrants
representing such ADS Rights) will expire on the Expiration Date. After such
Expiration Date, the holders of any such ADS Rights (and the Warrants
representing such ADS Rights) will have no rights other than the rights to
receive proceeds, if any, from the sale of any unexercised Primary ADS
Rights as described in the Prospectus.
3. APPOINTMENT OF THE AGENT.
The Company hereby appoints Citibank, as its Agent thereunder in connection
with the Issuance, and Citibank hereby accepts such appointment, upon the
terms and subject to the conditions contained herein. The Agent may perform
its obligations hereunder through any agent appointed by it.
4. CHANGE IN THE EXPIRATION DATE.
Notwithstanding any other provisions of the Agreement, if the Company and
the Agent designate any date other than November 21, 2001 as the Expiration
Date, all other dates set forth in this Agreement will automatically be
changed to the business days occurring nearest to the dates falling the same
number of business days before or after such dates as the designated
Expiration Date falls before or after November 21, 2001.
5. ALLOCATION OF ADS RIGHTS.
Immediately after the Record Date, the Agent will allocate Warrants to each
Holder as of the Record Date, on the basis of one Primary ADS Right for
every two (2) ADS held by such Holder as of the Record Date and one
Secondary ADS Right.
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6. PREPARATION OF WARRANT CERTIFICATES.
a. The Agent will cause to be prepared, for issuance to Holders of record
of ADRs as of the Record Date, Warrant Certificates substantially in the
form attached hereto as Exhibit B. The Company authorizes and directs the
Agent to prepare Warrant Certificates as soon as practicable after the
Record Date and to destroy any Warrant Certificates that are not issued
as a result of the distribution of Warrants to ADR Holders as of the
Record Date or as a result of any transfer or assignment of all or a
portion of the ADS Rights in respect of which such Warrant Certificates
were prepared.
b. The Agent will cause to appear on each Warrant Certificate (i) the name
of the Holder of the ADRs to whom such Warrant Certificate is issued,
(ii) the number of Primary ADS Rights to which such Holder is entitled
and (iii) the certificate number of such Warrant Certificate.
7. ISSUANCE AND TRANSFER OF WARRANT CERTIFICATES.
a. On the Effective Date, (i) the Company or its agents will advise the
Agent by telephone (and confirm in writing) that the Registration
Statement has been declared effective by the Commission, (ii) the Company
will deliver sufficient copies of the Prospectus to the Agent to make the
mailing and distribution contemplated by Paragraph 7(b), (iii) U.S.
counsel for the Company will deliver to the Agent two original copies of
their opinion addressed to the Agent stating, INTER ALIA, that (A) the
Registration Statement has been declared effective under the Securities
Act and, to their knowledge, no stop order suspending such effectiveness
has been issued or is threatened, (B) (x) the statements contained under
the captions "Summary of the Rights Offering-Holders of ADSs", "The
Rights Offering" and "Description of American Depositary Shares" in the
Prospectus, insofar as such statements constitute a summary of the terms
of the Rights Offering and the documents referred to therein, fairly
summarize, in all material respects, the matters referred to therein, and
(y) the statements contained under the caption "Taxation-United States
Federal Income Taxation" in the Prospectus, insofar as such statements
relate to matters of U.S. law, fairly summarize such laws in all material
respects and (C) assuming the authorization, execution and delivery of
this Agreement by the Company under the laws of Finland, this Agreement
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, liquidation and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles and (iv) Finnish counsel to the
Company will deliver to the Agent two original copies of their opinion to
the effect that (A) the Company has the corporate power and authority to
enter into this Agreement and to perform its obligations hereunder and
(B) this Agreement has been duly authorized, executed and delivered by
the Company.
b. As soon as possible following the Record Date (after receipt of the
items listed in Paragraph 7(a), the Agent will mail (or cause to be
mailed) under its blanket surety bond by Federal Express, UPS or other
nationally recognized express mail service, to each Holder within the
United States (not including those whose addresses indicate that they are
on military or other government service outside the United States);
(A) a Warrant Certificate evidencing the Warrant evidencing ADS Rights to
which such Holder is entitled under the terms of the Rights Offering;
(B) an instructions booklet containing instructions relating to the
exercise or transfer of the ADS Rights; (C) a copy of the Prospectus; and
(D) Company Notice, substantially in the form annexed hereto as
Exhibit C. As soon as possible following the Record Date (after receipt
of the items listed in Paragraph 7(a), the Agent will cause to be
delivered to the participants in DTC (as hereinafter defined) who hold
ADSs in their DTC participant accounts (i) the requisite number of ADS
Rights, (ii) the
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requested number of copies of the Prospectus, Broker Letter and Client
Letter (in each case in the form provided by the Company).
c. Warrant Certificates will not be issued to Holders with record addresses
outside the United States (including those whose addresses indicate that
they are on military or other government service outside the United
States). Such Warrant Certificateswill be held by the Agent for the
accounts of such Holders who may, prior to 10:00 a.m. (New York City
time) on November 21, 2001, instruct the Agent as to the sale or other
disposition of the Primary Share Rights underlying their Primary ADS
Rights or may, prior to the Expiration Date, instruct the Agent as to the
exercise of their ADS Rights, all as described above. If instructions are
not received prior to that time, Primary Share Rights underlying the
Primary ADS Rights held for such Holders will be sold by the Agent and
the net proceeds held for account of the respective Holders. In the event
that any Warrant Certificate is returned to the Agent for any reason and
proper delivery thereof is not effected on or prior to November 21, 2001,
the Primary Share Rights underlying the Primary ADS Rights evidenced by
such Warrant Certificate will be sold by the Agent and the net proceeds
held for the account of the Holder of such Warrant Certificate.
d. The Agent will, prior to the Expiration Date, effect transfers and
assignments of Warrant Certificates (or portions of the ADS Rights
represented by the Warrants evidenced thereby) as directed by the Holders
thereof, and will send to each transferee or assignee of Warrant
Certificates (or portions of the ADS Rights represented by the Warrants
evidenced thereby), by first class mail, upon cancellation of such
Warrant Certificates, a newly issued Warrant Certificate together with
the other documents described in clause (b) above.
e. In the event that, prior to the Expiration Date, any person notifies the
Agent that the Warrant Certificate to which such person is entitled has
not been delivered, or has been lost, stolen or destroyed, the Agent will
arrange for the issuance of a new Warrant Certificate and the delivery of
the other documents described in clause (b) above to any person from whom
it has, prior to Expiration Date, received a duly executed letter or
other communication satisfactory to the Agent (A) indicating (i) the name
and address of the registered holder of the lost Warrant Certificate,
(ii) the number of such Warrant Certificate, and (iii) the number of
Primary ADS Rights evidenced thereby, or (B) satisfying the Agent as to
such failure of delivery, or lost, stolen or destroyed Warrant
Certificate in accordance with procedures which are standard to the
industry; PROVIDED, HOWEVER, that such issuance may be delayed by the
Agent, in its discretion, pending receipt of an indemnity satisfactory to
the Company and the Agent and confirmation that such lost, stolen or
destroyed Warrant Certificate has not been exercised. Upon issuance of
such new Warrant Certificate, the Agent shall cancel all such Warrant
Certificates which are claimed were not delivered or were lost, stolen or
destroyed and shall record such cancellation in the register of ADS
Rights to be maintained by the Agent.
f. (i) A holder of Primary ADS Rights may place an order with the Agent
to sell the Primary Share Rights represented by its ADS Rights.
Such orders must be received by the Agent prior to 10.00 a.m.
(New York City time) on November 21, 2001, may prior to
10:00 a.m. (New York City time) on the Expiration Date, instruct
the Agent in writing to exercise ADS Rights as described above.
(ii) The Agent's obligation to execute sale orders in respect to the
Primary Share Rights represented by its Primary ADS Rights is
subject to its ability to do so. All sale orders will be executed
in the local market after the Expiration Date. Accordingly, such
trades may not be at the best available price. The fees and
commissions to be charged for sales of the Primary Share Rights
represented by its Primary ADS Rights through the Agent will only
be charged to the extent that the Agent is required to pay a fee to
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consummate the transaction in the local market. The fee in respect
of any such order will be allocated pro rata to the holders of all
Primary Share Rights evidenced by Primary ADS Rights sold by the
Agent.
g. If a properly completed and duly executed Warrant Certificate and
payment of the ADS Subscription Price, in the case of instructions to
exercise ADS Rights, are not received prior to the Expiration Date,
Primary ADS Rights held for such holders will be treated as unexercised.
The Agent shall cause Primary Share Rights evidenced by unexercised
Primary ADS Rights to be sold upon the terms described in
Section (f)(iii) above.
8. ACCEPTANCE OF SUBSCRIPTIONS.
a. The Company hereby authorizes and directs the Agent to accept
subscriptions for New ADSs on behalf of the Company upon the surrender to
it of a properly completed and executed Warrant Certificate and payment
of the ADS Subscription Price therefor in U.S. dollars, in accordance
with the terms thereof and hereof. The Company further authorizes the
Agent to refuse to accept, in its discretion, any improperly completed or
unexecuted Warrant Certificate. Notwithstanding the foregoing, without
further authorization from the Company, on or before the Expiration Date,
the Agent may accept any subscription effected by payment in full of the
ADS Subscription Price on or before the Expiration Date.
b. The Company authorizes the Agent to waive proof of authority to sign
(including the right to waive signatures of co-fiduciaries and proof of
appointment or authority of any fiduciary or other person acting in a
representative capacity) in connection with any subscription with respect
to which:
(i) the surrendered Warrant Certificate is registered in the name of
one or more individuals or an executor, administrator, trustee,
custodian for a minor or other fiduciary and has been executed by
such registered holder or holders, provided that (A) the New ADS
subscribed for are to be issued in the name of such registered
holder or holders (B) the check tendered in payment of such
subscription is drawn for the proper amount and to the order of the
Agent, and is otherwise in order, and (C) there is no evidence
indicating that such person is not the duly authorized
representative which such person purports to be;
(ii) the surrendered Warrant Certificate is registered in the name of a
corporation and has been executed by an officer of such
corporation, provided that (A) the New ADSs subscribed for are to
be issued in the name of such corporation (B) the check tendered in
payment of such subscription is drawn for the proper amount and to
the order of the Agent, and is otherwise in order, and (C) there is
no evidence indicating that such person is not the duly authorized
representative which such person purports to be;
(iii) the surrendered Warrant Certificate has been executed by a bank,
trust company or broker as agent for the registered holder
thereof, provided that (A) the New ADSs subscribed for are to be
issued in the name of such registered holder; and (B) the check
tendered in payment of such subscription is drawn for the proper
amount and to the order of the Agent, and is otherwise in order,
and (C) there is no evidence indicating that such person is not
the duly authorized representative which such person purports to
be; or
(iv) the surrendered Warrant Certificate is registered in the name of a
decedent and has been executed by a person who purports to act as
the executor or administrator of such decedent's estate, provided
that (A) the New ADSs are to be issued in the name of such person
as executor or administrator of such decedent's estate, (B) the
check
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tendered in payment of such subscription is drawn for the proper
amount and to the order of the Agent, and is otherwise in order,
and (C) there is no evidence indicating that such person is not the
duly authorized representative which such person purports to be.
In all cases other than those described in clauses (i) through (iv)
above, the Agent will obtain all necessary proof of authority to sign in
connection with the subscriptions for New ADSs, provided, however, that
in the event that such proof of authority has not been received on or
prior to the Expiration Date, the Agent shall obtain advice from the
Company as to whether any such subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of
indemnification from commercial banks, trust companies or any member of
the Securities Transfer Agents Medallion Program (STAMP), the Stock
Exchange Medallion Program (SEMP) or the New York Stock Exchange, Inc.
Medallion Signature program (MSP).
d. The Agent shall establish procedures pursuant to which persons holding
ADSs through The Depository Trust Company ("DTC") may exercise their ADS
Rights by the timely delivery to the Agent of complete subscription
instructions through DTC's PSOP Function on the "agent subscriptions over
PTS" procedure ("Subscription Instructions" and the "ASOP", respectively)
accompanied by timely payment in full of the ADS Subscription Price for
each New ADS to be purchased. All Subscription Instructions and payment
of the ADS Subscription Price for the subscribed New ADSs must be
received by the Agent prior to the Expiration Date.
e. Holders of ADS Rights may exercise all or part of their ADS Rights at
their discretion. However, subscriptions will be accepted for whole New
ADSs only and no fractional New ADSs will be issued. The Agent is hereby
instructed to round down to the nearest whole number of New ADS
subscriptions submitted for fractional New ADSs. The Agent will, to the
extent permitted by law, sell or cause to be sold, the Primary ADS Rights
corresponding to the average of fractional Primary ADS Rights not
exercised for the pro rata benefit of the Holders entitled thereto.
f. Holders, of record as of the Record Date, of ADS Rights may exercise
their Secondary ADS Rights by specifying an additional number of New ADSs
that they would subscribe for in the event that any new Shares are not
subscribed for pursuant to the exercise by Shareholders of Primary Share
Rights. The number of additional New ADSs that will be available pursuant
to the exercise by Holders of Secondary ADS Rights will depend on the
level of demand for the Shares and the New ADSs pursuant to the exercise
by Shareholders of Primary Share Rights and Primary ADS Rights. In case
of oversubscription pursuant to the exercise of Secondary Share Rights
and Secondary ADS Rights, the additional New ADSs available will be
allocated to Holders who have exercised their Secondary ADS Rights on the
basis of the number of shares underlying the ADSs they hold on the Record
Date in proportion to the total outstanding Shares, but subject in the
case of each Holder to the maximum number of New ADSs applied for by such
Holder pursuant to the exercise of its Secondary ADS Right. Holders must
pay the ADS Subscription Price for all the New ADSs applied for pursuant
to the exercise of Secondary ADS Rights to the Agent at the same time
that Holders exercise, and pay the ADS Subscription Price for ADSs to be
issued pursuant to the exercise of, Primary ADS Rights. In case of
oversubscription pursuant to the exercise of Secondary Share Rights and
Secondary ADS Rights with Holders being allocated a smaller number of
additional New ADSs than they applied for pursuant to the exercise of
Secondary ADS Rights, the Agent will refund to the relevant Holders
promptly the excess ADS Subscription Price paid.
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g. Promptly after the Expiration Date, the Agent shall (x) determine the
ADS Rights that have been timely and validly exercised by holders thereof
and shall convert (or cause to be converted) the ADS Subscription Price
paid by such Holders into euros, (y) instruct the custodian(s) for the
ADS facility to exercise in Finland the Share Rights corresponding to the
ADS Rights exercised and to cause the Shares received upon exercise of
the Share Rights to be deposited into the ADR facility and (z) return any
excess funds (after conversion of the ADS Subscription Price) to the
applicable holders of ADS Rights validly exercised.
9. REPORTS BY THE AGENT.
a. From time to time during the period from the Effective Date through the
Expiration Date, if requested by the Company to do so, the Agent will
advise the Company by telephone or by facsimile transmission as to
(i) the total number of New ADSs subscribed for pursuant to the exercise
of Primary ADS Rights, (ii) the total number of New ADSs subscribed for
pursuant to the exercise of Secondary ADS Rights, and (iii) the aggregate
amount of funds received by the Agent in payment of such subscriptions in
U.S. dollars.
b. Not later than 10.00 a.m. (New York City time) on the business day
following the Expiration Date, the Agent will advise the Company by
facsimile and electronic mail transmission (to Xx. Xxxxx Xxxxxxxx at
000-0000-0000 and xxxxx.xxxxxxxx@xxxxxx.xxx, or by telephone confirmed in
writing (at Sonera Corporation, Xxxxxxxxxxxxx 00, Xxx-00000 Xxxxxxxx,
Xxxxxxx) as to (i) the total number of New ADSs subscribed for pursuant
to the exercise of Primary ADS Rights, (ii) the total number of New ADSs
subscribed for pursuant to the exercise of Secondary ADS Rights, and
(iii) the aggregate amount of funds received by the Agent in payment of
such subscriptions in U.S. dollars.
10. ADS SUBSCRIPTION PRICE/SUBSCRIPTION PAYMENT.
a. The Agent will arrange to convert payments of the ADS Subscription Price
from U.S. dollars to euros for payment to the Company in accordance with
subscription upon the terms hereof, and shall as soon as practicable
thereafter pay the custodian(s) under the Deposit Agreement by electronic
transfer of funds to an account designated by the custodian(s), value
date November , 2001 (in the case of the exercise of Primary ADS
Rights) and value date (in the case of exercise of Secondary ADS Rights),
an amount, in euros, equal to the aggregate Subscription Price for all
Shares represented by New ADSs subscribed for during the applicable
subscription period.
b. At or prior to , New York City time, on November , 2001, the
Agent shall (i) determine (A) the aggregate Subscription Price payable to
the Company (in euros) in respect of the total number of New ADSs
subscribed for pursuant to the exercise of Primary ADS Rights and
Secondary ADS Rights, (B) the aggregate amount of the ADS Subscription
Price received by the Agent, (C) the conversion rate to be used by the
Agent to convert such ADS Subscription Price to euros for application to
such aggregate Subscription Price and (D) if the euros equivalent of such
aggregate ADS Subscription Price when converted at such necessary
conversion rate shall be less than such aggregate Subscription Price for
the total number of New ADSs subscribed for with the ADS Subscription
Price, the amount of U.S. dollars necessary to provide an amount
sufficient to pay such aggregate Subscription Price in full when
converted at such conversion rate (the "Deficiency"), and (ii) pay such
Deficiency, if any, to the Company on behalf of the Holders. The Agent
shall promptly thereafter advise the Company by telecopy, electronic mail
or by telephone confirmed in writing, of such denomination and the fact
that such deposit was made, if applicable. Assuming all applications for
New ADSs pursuant to the exercise of Secondary ADS Rights are satisfied
in full, then each Holder shall then be
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required to pay promptly its share of the amount of such Deficiency to
the Agent and the Agent will not make delivery of any New ADSs subscribed
for by such Holder pursuant to the exercise of Primary ADS Rights and/or
Secondary ADS Rights prior to the receipt by the Agent of such payment.
If payment of the amount of any deficiency is not received from a
subscriber by the Agent by , 2001, the Agent shall sell such New
ADSs subscribed for by such subscriber in a commercially reasonable
manner, and the Agent may allocate the proceeds of such sale for the
account of the subscribers upon an average or other practicable basis
without regard to any distinction among such subscribers because of
exchange rates, or otherwise, in an amount sufficient to cover such
Deficiency and to cover any costs incurred in selling such New ADSs. The
Agent will thereupon have the right to indemnity and reimbursement from
the Company with respect to the amount of any Deficiency not collected as
provided above from any such Holder after such sale of ADSs and
application of the proceeds thereof (less any costs incurred in such
sale) to any such amount owed by such Holder to the Agent.
c. In the event that a holder's payment of the ADS Subscription Price, when
converted to euros, exceeds the aggregate Subscription Price, the Agent
shall promptly refund such excess to such holder without interest
thereon. In such event the Agent will send promptly an ADS Receipt in
respect of the remaining New ADSs to such subscriber together with a
check in the amount of the excess proceeds, if any, from such sale.
11. DEPOSIT OF ADSS.
a. The Company shall, as soon as practicable after the registration of the
Shares represented by the New ADSs subscribed for pursuant to the
Issuance, cause to be deposited such Shares in an account maintained by
the custodian(s) under the Deposit Agreement in the name of the
Depositary or its designated nominee.
b. Immediately after the day on which the Company shall so cause to be
deposited such Shares the Agent shall instruct the Depositary, in
accordance with the terms of the Deposit Agreement, to issue as soon as
practicable thereafter ADRs in respect of all ADSs subscribed for
pursuant to the Issuance and to mail to each subscriber for New ADSs, in
the manner specified by such subscriber, an ADR representing the number
of New ADSs which such subscriber subscribed for on its surrendered
Warrant Certificate and, in the case of New ADSs applied for pursuant to
the exercise of Secondary ADS Rights, was allocated, provided, however,
that in the case of a Deficiency as set forth in Section 10(b) hereof,
the Agent shall not instruct the Depositary to make delivery of any New
ADSs subscribed for by a Holder who has not paid its share of the amount
of such Deficiency to the Agent, but shall instead act as provided in
Section 10(b) hereof.
c. Any ADR requested to be mailed by the subscriber therefor will be mailed
by the Agent by first class mail to a Holder, in each case under its
blanket surety bond and within the limits thereof, protecting the Agent
and the Company from any loss or liability arising out of non-receipt or
non-delivery of any such ADR or the replacement thereof.
12. SUPPLIES OF DOCUMENTS.
a. The Company will cause sufficient copies of the Prospectus and the
Company Notice to be furnished to the Agent when the same become
available to allow for the distribution of copies of such documents to
holders and to transferees of ADS Rights and New ADSs.
b. Promptly after the Expiration Date, the Agent will cause any unused
Warrant Certificates in its possession to be destroyed and all Warrant
Certificates that were registered or assigned and all exercised Warrant
Certificates will be cancelled and destroyed. The Depositary will provide
to the Company a record of such Warrant Certificates having been
destroyed.
9
13. INSTRUCTIONS AND INDEMNIFICATION.
a. The Agent will be entitled to rely upon any instructions or directions
furnished to it in writing by any director or officer to the Company or
any attorney-in-fact for the Company appointed for this purpose pursuant
to a power of attorney signed by any director or officer of the Company
and to apply to such individuals for directions or instructions in
connection with its duties, and will be entitled to treat as genuine, and
as the document it purports to be, and letter or other document,
furnished to it by such individuals. The Agent shall incur no liability
or responsibility to the Company or any holder or holders of any ADS
Right or Warrant Certificate for any action taken in reliance on, and in
accordance with, any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument which conforms to the
applicable requirements of this Agreement and which is reasonably
believed by it to be genuine and to have been signed, sent or represented
by the proper party or parties.
b. The Company will indemnify the Agent against, and defend and hold it
harmless from, any and all liability and related expenses (including
reasonable fees and expenses of its counsel) incurred by the Agent, which
may arise out of acts performed or omitted in connection with this
Agreement, as the same may be amended, modified, or supplemented from
time to time, (i) by the Agent, except to the extent such liability or
expense arises out if its, or its nominees, own negligence or willful
misconduct, or (ii) by the Company or any of its agents.
c. The Agent will indemnify the Company against, and defend and hold it
harmless from, any and all liability and related expenses (including
reasonable fees and expenses of its counsel) incurred by the Company,
which may arise out of acts performed or omitted in connection with this
Agreement, as the same may be amended, modified, or supplemented from
time to time by the Agent or its nominees, due to the Agent's own
negligence or willful misconduct.
d. If any action or claim shall be brought or threatened to be brought
against a party in respect of which indemnity may be sought pursuant to
this Section 13, such party shall, as soon as practicable (or, in the
case of any action or claim which is threatened to be brought, as soon as
practicable after such party actually becomes aware of the same) notify
the party against whom indemnity may be sought in writing of such action
or claim, and in such circumstances, and also in the event of any action
or claim being brought or threatened to be brought against such party,
such party against whom indemnity may be sought shall provide to the
party in respect of which indemnity may be sought, such information and
assistance as such party shall reasonably request, subject always to the
provisions of indemnity contained in this Section 13. Each party shall to
the extent reasonable and practicable in all circumstances consult with
the other party as and when reasonably requested by such party in respect
of any action or claim referred to in this Section 13.
e. The obligation set forth in this Section 13 shall survive the
termination of this Agreement.
14. PAYMENT FOR SERVICES.
The Company will compensate the Agent for its services hereunder as provided
in a letter agreement separately entered into between the Company and the
Agent.
15. AMENDMENTS.
This Agreement may be amended, supplemented or otherwise modified only by a
written instrument executed and delivered by each of the parties hereto.
10
16. GOVERNING LAW AND JURISDICTION.
This Agreement will be governed by, and construed and interpreted in
accordance with, the laws of the State of New York applicable to contracts
entered into, and to be fully performed, in the State of New York. The
parties agree that the federal and state courts located in the City of New
York, State of New York, shall have jurisdiction to hear and determine any
suits, actions or proceedings and to settle any disputes between the parties
relating to this Agreement and for such purpose each of the parties
irrevocably submits to the jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Sonera Corporation, 0000
Xxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, X.X. 00000, as its authorized
agent to receive and accept for and on its behalf and on behalf of its
properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any court as described
in the preceding sentence. If for any reason the Company's authorized agent
shall cease to be available to act as such, the Company agrees to designate
a new authorized agent in the United States for receiving and accepting
service of all legal process on the terms and for the purposes of this
Section 16 reasonably satisfactory to the Agent. The Company further hereby
irrevocably consents and agrees to any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
against it under the terms hereof, by service by mail of a copy thereof upon
its authorized agent (whether or not the appointment of its authorized agent
shall for any reason prove to be ineffective or its authorized agent shall
fail to accept or acknowledge such service), with a copy mailed to the
Company by registered or certified air mail, postage prepaid, to its address
provided herein. The Company agrees that the failure of its authorized agent
to give any notice of such service to it shall not impair or affect in any
way the validity of such service or any judgment rendered in any action or
proceeding based thereon. The Company irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may
not now or hereafter have to the laying of venue of any actions, suits or
proceedings brought in any court as provided herein, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. The provisions of this
Section 16 shall survive any termination of this Agreement.
17. COUNTERPARTS.
This Agreement may be executed by the parties hereto on separate
counterparts, which counterparts taken together will be deemed to constitute
one and the same instrument.
18. NOTICES.
Any notice provided for herein must be in writing in English and shall be
deemed given when received and shall be addressed as follows: (i) if to the
Company, to Xxxxx Xxxxxxxx, Sonera Corporation, Xxxxxxxxxxxxx 00, XXX-00000
Xxxxxxxx, Xxxxxxx, Telecopier 000-00-00-0000 Fax: ; (ii) if to
the Agent, to Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxx--ADR Department, Telecopier No. (000) 000-0000. Any
party may, by notice given in writing to each other party at its above
address, designate another address for receipt of notices thereunder.
19. BINDING EFFECT.
This Agreement shall be binding upon and insure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11
20. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein
shall in no way be affected, prejudiced or disturbed thereby.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of the day and year
above written.
SONERA CORPORATION
By:
-----------------------------------------
Name:
TITLE:
CITIBANK, N.A.
By:
-----------------------------------------
Name:
TITLE:
ATTACHMENTS:
Exhibit A Prospectus
Exhibit B Form of Warrant Certificate
Exhibit C Company Notice
13
EXHIBIT A
See the registration statement filed by
Sonera Corporation on November 9,
2001.
14
EXHIBIT B
FORM OF WARRANT
SONERA CORPORATION
WARRANT CERTIFICATE EVIDENCING ADS RIGHTS
[ LABEL ]
The registered owner of this Warrant Certificate named above, or such
owner's assigns, is entitled under the terms of the ADS Rights Offer by
Sonera
Corporation (the "COMPANY") described in the Prospectus, dated November 9, 2001
(the "PROSPECTUS") to the number of transferable primary ADS Rights to subscribe
for American Depositary Shares ("ADSS") representing shares, no nominal value
("SHARES"), of the Company shown above. Each primary ADS Right entitles the
holder to subscribe for - ADSs at the Estimated ADS Subscription Price of
US$ - per ADS upon the terms and conditions described in the Prospectus. The
registered owner of this Warrant Certificate may be entitled to exercise
non-transferable secondary ADS rights (upon the terms described in the
Prospectus) if (i) the registered owner holds this Warrant Certificate as a
registered holder of ADS(s) as of close of business in New York City on
November 14, 2001 and (ii) the registered owner has exercised some or all of its
primary ADS Rights. Citibank has been appointed by the Company to act as ADS
Rights Agent. The Estimated ADS Subscription Price is payable in U.S. dollars
and must be made by certified check or bank draft drawn made payable to the
order of "Citibank, N.A re: Sonera ADS Rights Offering". Please reference your
Warrant Certificate control number on your certified check or bank draft.
IN ORDER TO EXERCISE OR INSTRUCT THE SALE OF YOUR ADS RIGHTS, YOU MUST
COMPLETE BOTH SIDES OF THE TEAR-OFF CARD AND DELIVER THE COMPLETED AND SIGNED
CARD, ALONG WITH PAYMENT OF THE ESTIMATED ADS SUBSCRIPTION PRICE FOR EACH ADS
SUBSCRIBED AND ANY OTHER DOCUMENTS REQUIRED, TO THE ADS RIGHTS AGENT BEFORE
10:00 A.M. NEW YORK TIME ON NOVEMBER 21, 2001 (THE "EXPIRATION DATE").
THIS WARRANT IS TRANSFERABLE AT THE OFFICE OF THE ADS RIGHTS AGENT.
THE PRIMARY ADS RIGHTS EVIDENCED BY THIS WARRANT CERTIFICATE ARE
TRANSFERABLE. THE SECONDARY ADS RIGHTS EVIDENCED BY THIS
WARRANT CERTIFICATE ARE NOT TRANSFERABLE.
VOID AFTER 10:00 A.M. NEW YORK CITY TIME ON NOVEMBER 21, 2001
To exercise the primary ADS Rights please complete line "A" below. Each ADS
Right entitles you to purchase - ADS but you cannot subscribe for a fraction
of an ADS.
To exercise the secondary ADS Rights, please complete line "B" below.
To instruct the sale of the primary Share Rights represented by the primary ADS
Rights, please complete "D" below.
15
--------------------------------------------------------------------------------
PLEASE FILL IN ALL APPLICABLE INFORMATION AND DELIVER TO CITIBANK, N.A. BEFORE
10:00 A.M. NEW YORK CITY TIME ON NOVEMBER 21, 2001
--------------------------------------------------------------------------------
BY HAND: BY OVERNIGHT COURIER: BY MAIL:
CITIBANK, N.A CITIBANK, N.A. CITIBANK, N.A.
c/o Securities Transfer Corporate Actions Corporate Actions
and Reporting Services Inc 00 Xxxxxxxxxx Xx X.X. Xxx 00000
Attn: Corporate Actions Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
000 Xxxxxxxx Xxxxxx--XXXXXXXX
Xxx Xxxx, Xxx Xxxx 00000
A. Primary ADS Rights x $ = $
( ADS Rights = ADSs) ----------------- ----------------- -----------------
(No. of ADSs) (Estimated ADS
Subscription Price)
B. Secondary ADS Rights x $ = $
----------------- ----------------- -----------------
(No. of ADSs) (Estimated ADS
Subscription Price)
C. Total Estimated ADS Subscription Price = $
-----------------
D. Sell of my primary ADS Rights
16
--------------------------------------------------------------------------------
Section I. TO SUBSCRIBE: I hereby irrevocably subscribe for the number of ADSs
indicated hereon upon the terms and conditions specified in the enclosed
Prospectus, receipt of which is acknowledged.
TO SELL: If I have requested the ADS Rights Agent to attempt to sell
any rights on Line D, I authorize the sale of ADS Rights by the ADS Rights Agent
according to the procedures described in the Prospectus.
Name of Subscriber(s)/Seller(s):
________________________________________________________________________________
Address of Subscriber(s)/Seller(s):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Taxpayer ID No. of Subscriber(s)/Seller(s):
________________________________________________________________________________
Signature of Subscriber(s)/Seller(s):
________________________________________________________________________________
Daytime telephone number of Subscriber(s)/Seller(s):
--------------------------------------------------------------------------------
------------------------------------------
SECTION 2. TO TRANSFER RIGHTS (except pursuant to line D above):
For value received of the ADS Rights represented by the warrant
certificate are assigned to:
________________________________________________________________________________
(Print Full Name of Assignee)
________________________________________________________________________________
(Print Full Address)
________________________________________________________________________________
(Signature(s) of Assignor(s))
IMPORTANT: The signature(s) must correspond in every detail, without alteration,
with the name(s) as printed on your warrant certificate. The signature must be
guaranteed by an Eligible Institution such as a commercial bank, trust company,
trust company, securities broker/dealer, credit union, or savings association
participating in a Medallion Program approved by the Securities Transfer
Association, Inc.
------------------------------------------
------------------------------------------
SECTION 3--SPECIAL DELIVERY INSTRUCTIONS: Please mail certificates for ADSs for
which I have subscribed or any cash payment to which I am entitled, as
applicable, in accordance with the Prospectus to the following address (if other
than shown on the reverse hereof):
Address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[ MEDALLION GUARANTEE ]
------------------------------------------
17
------------------------------------------------------------------------------------------------
PAYER'S NAME: CITIBANK, N.A.
------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1--PLEASE PROVIDE YOUR Social Security Number or
FORM W-9 SOCIAL SECURITY NUMBER OR TIN:
Department of the Treasury TIN IN THE BOX AT RIGHT AND ------------------------
Internal Revenue Service CERTIFY BY SIGNING AND
DATING BELOW:
--------------------------------------------------------------
Part 2--Certification--
(1) The number shown on this form is my correct Social
Security Number or Taxpayer Identification Number (or I am
waiting for a number to be issued to me as indicated in
Payer's Request for Taxpayer Part 3, in which event I certify under penalty of perjury
Identification Number that a TIN has not been issued to me, and either (x) I
("TIN") have mailed or delivered an application to receive a TIN
to the appropriate Internal Revenue Service ("IRS")
Center or Social Security Administration Office, or (y) I
intend to mail or deliver an application in the near
future). I understand that if I do not provide a TIN by
the time of payment, 31% of all payments made to me
thereafter will be withheld until I provide a TIN, and
(2) I am not subject to backup withholding because: (a) I am
exempt from backup withholding, or (b) I have not been
notified by the IRS that I am subject to backup
withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--YOU MUST CROSS OUT ITEM (2)
ABOVE IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU ARE
CURRENTLY SUBJECT TO BACKUP WITHHOLDING BECAUSE OF
UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN.
------------------------------------------------------------------------------------------------
Part 3--Awaiting TIN / /
SIGNATURE -------------------------------------------
DATE ------------------------------------------------
------------------------------------------------------------------------------------------------
Failure to complete and return this Substitute Form W-9 may result in backup
withholding of any payments made to you. See Instructions Booklet.
18
EXHIBIT C
See Exhibit 99.3 to the registration statement filed by
Sonera Corporation
on November 9, 2001.
19
