Stock Exchange Release
Talvivaara Mining Company Plc
16 February 2012
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA, CANADA, JAPAN,
AUSTRALIA, SOUTH AFRICA OR IN ANY OTHER JURISDICTION IN WHICH OFFERS OR SALES
WOULD BE PROHIBITED BY APPLICABLE LAW
Proposed Placing of up to
24,589,050 new Ordinary Shares of Talvivaara Mining Company Plc
Details of the
Placing
Talvivaara Mining Company Plc ("Talvivaara"
or the "Company") announces today its intention to issue up to 24,589,050 new
ordinary shares (the "Placing Shares") representing approximately 10 per cent of
the number of the existing shares of the Company (the "Placing") to both new and
existing institutional shareholders (the "Placees").
The Placing is being conducted, subject to
the satisfaction of certain conditions, through an accelerated book-building
process to be carried out by Merrill Lynch International ("BofA Merrill Lynch")
who is acting as Sole Bookrunner and Joint Lead Manager and Liberum Capital
Limited ("Liberum") and Pohjola Corporate Finance Ltd. ("Pohjola") who are
acting as Joint Lead Managers in relation to the Placing. The identity of
Placees and the basis of the allocations are at the discretion of Talvivaara,
BofA Merrill Lynch, Liberum and Pohjola. The number of Placing Shares and the
price at which the Placing Shares are to be placed (the "Placing Price") will be
agreed by Talvivaara with the Joint Lead Managers at the close of the
book-building process. Details of the number of Placing Shares and the Placing
Price will be announced as soon as practicable after the close of the
book-building process.
The Placing Shares will be issued credited as
fully paid and will rank pari passu with the existing ordinary shares, including
the right to receive all dividends and other distributions declared in respect
of such shares after the date of issue of the Placing Shares. The Placing will
be made on a non-preemptive basis and as such will be subject to shareholder
approval at an extraordinary general meeting of shareholders of the Company (the
"EGM") scheduled for 12 March 2012.
The Company has also received irrevocable
undertakings from its four largest shareholders, Pekka Perä, Varma Mutual
Pension Insurance Company, Solidium Oy and Ilmarinen Mutual Pension Insurance
Company, to vote in favour of the issue of the Placing Shares in respect of
approximately 111.1 million Talvivaara Shares in aggregate, representing
approximately 45.2 per cent of the existing issued share capital of
Talvivaara.
The Company will apply for admission of the
Placing Shares to the premium segment of the Official List of the UK Financial
Services Authority and to trading on the main market of the London Stock
Exchange and listing on the Helsinki Stock Exchange (collectively the
"Admission"). It is expected that Admission will take place and that trading
will commence on 14 March 2012.
The Placing is conditional upon, inter alia,
Admission becoming effective and upon the passing of the resolution (without
amendment) at the EGM scheduled for 12 March 2012. The Placing is also
conditional on the placing agreement made between the Company, BofA Merrill
Lynch, Liberum and Pohjola becoming unconditional and not being terminated. It
is anticipated that the settlement date will be 14 March 2012.
The Appendix to this announcement (which
forms part of this announcement) sets out the terms and conditions of the
Placing.
Use of Proceeds
The proceeds of the Placing will be used to
provide additional financial and operational flexibility for the continuing
ramp-up of the mining and processing operations, as well as additional capital
for potential investment in energy generation. These steps will further improve
the strategically advantageous positioning of the Talvivaara operation and help
to reach, and further enhance, the low cash cost position of the project.
Background and Reasons for
the Placing
Talvivaara is pursuing this capital raising
to provide operational and financial flexibility as part of its strategy to
increase nickel production from 16,087 tonnes in 2011 to 50,000 tonnes.
Talvivaara's total resource base of more than
one billion tonnes of ore corresponds to several decades of mine-life at the
expanded capacity, which contributes to the Company's shift to full scale
production.
Talvivaara also targets at being in a strong
position to benefit from sustained worldwide demand driven particularly by China
which continues to support its confidence in the long-term strength of commodity
markets.
Q4 and Full Year Results
2011
Please refer to our Q4 and full year 2011
results released today for our latest disclosures regarding the Company's
performance.
Contacts
Talvivaara Mining
Company Plc
+358 20 712 9800
Pekka Perä
Saila Miettinen-Lähde
BofA Merrill Lynch
+44 20 7996
1000
Harri Sundvik
Peter
Brown
Ignacio Maldonado
Matthew Blawat
Liberum Capital Limited
+44 20 3100
2000
Michael Rawlinson
Christopher Britton
Pohjola Corporate Finance Ltd.
+358 10 252
7400
Timo Mäkeläinen
IMPORTANT INFORMATION
This Announcement
contains (or may contain) certain forward-looking statements with respect to
certain of the Company's plans and its current goals and expectations relating
to its future financial condition and performance and which involve a number of
risks and uncertainties. The Company cautions readers that no forward-looking
statement is a guarantee of future performance and that actual results could
differ materially from those contained in the forward-looking statements. These
forward-looking statements can be identified by the fact that they do not relate
only to historical or current facts. Forward-looking statements sometimes use
words such as "aim", "anticipate", "target", "expect", "estimate", "intend",
"plan", "goal", "believe", or other words of similar meaning. Examples of
forward-looking statements include, amongst others, statements regarding or
which make assumptions in respect of the future continued operation of the
Group's producing assets, the timing of the commencement of future production
and the sustainability of that production, the ability of the Group to discover
new resources, the prices achievable by the Group in respect of its production,
the costs of exploration, development or production, future foreign exchange
rates, interest rates and currency controls, the future political and fiscal
regimes in the overseas markets in which the Group operates, the Group's future
financial position, plans and objectives for future operations of the Company
and other statements that are not historical fact. By their nature,
forward-looking statements involve risk and uncertainty because they relate to
future events and circumstances, including, but not limited to, economic and
business conditions, the effects of continued volatility in credit markets,
market-related risks such as changes in the price of commodities or changes in
interest rates and foreign exchange rates, the policies and actions of
governmental and regulatory authorities, changes in legislation, the further
development of standards and interpretations under International Financial
Reporting Standards ("IFRS") applicable to past, current and future periods,
evolving practices with regard to the interpretation and application of
standards under IFRS, the outcome of pending and future litigation or regulatory
investigations, the success of future explorations, acquisitions and other
strategic transactions and the impact of competition. A number of these factors
are beyond the Company's control. As a result, the Company's actual future
results may differ materially from the plans, goals, and expectations set forth
in the Company's forward-looking statements. Given these risks and
uncertainties, prospective investors are cautioned not to place undue reliance
on forward-looking statements which are not guarantees of future performance.
Any forward-looking statements made in this Announcement by or on behalf of the
Company speak only as of the date they are made. Except as required by the
Financial Services Authority (the "FSA"), the FFSA, the London Stock Exchange,
the Helsinki Stock Exchange or applicable law, the Company expressly disclaims
any obligation or undertaking to release publicly any updates or revisions to
any forward-looking statements contained in this Announcement to reflect any
changes in the Company's expectations with regard thereto or any changes in
events, conditions or circumstances on which any such statement is based.
This Announcement is for information purposes only and shall not
constitute an offer to buy, sell, issue, or subscribe for, or the solicitation
of an offer to buy, sell, issue, or subscribe for any securities, nor shall
there be any sale of securities in any jurisdiction (a "Prohibited
Jurisdiction") in which such offer, solicitation or sale is or may be unlawful
prior to registration or qualification under the securities laws of any such
jurisdiction, including, without limitation and subject to certain exceptions,
the United States, Canada, Australia, South Africa and Japan. This Announcement
and the information contained herein are not for publication or distribution,
directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted
pursuant to an exemption under the relevant local law or regulation in any such
jurisdiction.
This Announcement has been issued by and is the
sole responsibility of the Company. No representation or warranty, express or
implied, is or will be made as to, or in relation to, and no responsibility or
liability is or will be accepted by BofA Merrill Lynch, Liberum, Pohjola or by
any of their respective Affiliates or agents as to, or in relation to, the
accuracy or completeness of this Announcement, including the Appendix or any
other written or oral information made available to or publicly available to any
interested party or its advisers, and any responsibility or liability therefor
is expressly disclaimed.
The Joint Lead Managers are acting
for the Company and for no-one else in connection with the Placing, and will not
be responsible to anyone other than the Company for providing the protections
afforded to their respective customers or for providing advice to any other
person in relation to the Placing or any other matter referred to herein. BofA
Merrill Lynch and Liberum are authorised and regulated in the United Kingdom by
the FSA. Pohjola is authorised and regulated in Finland by the FFSA.
The distribution of this Announcement and the offering of the
Placing Shares in certain jurisdictions may be restricted by law and/or
regulation. No action has been taken by the Company or the Joint Lead Managers
or any of their respective Affiliates that would permit an offering of such
shares or possession or distribution of this Announcement or any other offering
or publicity material relating to such shares in any jurisdiction where action
for that purpose is required. Persons into whose possession this Announcement
comes are required by the Company and the Joint Lead Managers to inform
themselves about, and to observe such restrictions.
The
price of shares and the income from them (if any) may go down as well as up and
the Placees may not get back the full amount invested on disposal of the Placing
Shares. Any indication in this Announcement of the price at which Ordinary
Shares have been bought or sold in the past cannot be relied upon as a guide to
future performance. No statement in this Announcement is intended to be a profit
forecast or profit estimate and no statement in this Announcement should be
interpreted to mean that earnings per share of the Company for the current or
future financial years would necessarily match or exceed the historical
published earnings per share of the Company.
MEMBERS OF THE
PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT
(INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT IN THIS
ANNOUNCEMENT ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS
WHO ARE: (A) (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(1) OR
ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL
PROMOTION) ORDER 2005 (THE "ORDER"), OR (II) PERSONS FALLING WITHIN ARTICLE
49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC")
OF THE ORDER, OR (III) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY
COMMUNICATED; AND (B) (I) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA
WHO ARE QUALIFIED INVESTORS (AS DEFINED IN ARTICLE 2(1)(E) OF EU DIRECTIVE
2003/71/EC AS AMENDED (THE "PROSPECTUS DIRECTIVE")), AND/OR (II) PERSONS IN THE
UNITED KINGDOM WHO ARE QUALIFIED INVESTORS (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT (INCLUDING THE APPENDIX)
AND THE TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT MUST NOT BE ACTED ON
OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR
INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE
TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT RELATE IS AVAILABLE ONLY TO
RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS
ANNOUNCEMENT (INCLUDING THE APPENDIX) DOES NOT ITSELF CONSTITUTE AN OFFER
FORSALEOR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
Persons (including individuals, funds or otherwise) by whom or on whose behalf
a commitment to subscribe for Placing Shares has been given ("Placees") will be
deemed to have read and understood this Announcement, including the Appendix, in
its entirety and to be making such offer on the terms and conditions, and to be
providing the representations, warranties, acknowledgements, and undertakings
contained in the Appendix. In particular, each such Placee represents, warrants
and acknowledges that it is: (i) a Relevant Person (as defined above) and
undertakes that it will acquire, purchase, subscribe for, hold, manage or
dispose of any Placing Shares that are allocated to it for the purposes of its
business; and (ii) outside the United States and is subscribing for and/or
purchasing the Placing Shares for its own account or is acquiring the Placing
Shares for an account with respect to which it exercises sole investment
discretion in an "offshore transaction" (within the meaning of Regulation S
("Regulation S") under the United States Securities Act of 1933, as amended (the
"Securities Act")) or, if it is not outside the United States, is a qualified
institutional buyer ("QIB") within the meaning of Rule 144A under the Securities
Act, and has duly executed an investor representation letter in the form
provided to it and has delivered the same to BofA Merrill Lynch or Liberum, as
the case may be.
This Announcement, including the Appendix,
is not for distribution directly or indirectly in or into the United States and
does not contain or constitute an offer to purchase or to sell or a solicitation
by anyone for any securities to any person in the United States. ThePlacing
Shares have not been and will not be registered under the Securities Act or
under the securities laws of any state or other jurisdiction of the United
States. ThePlacing Shares may not be offered, sold,reoffered, resold,pledged,
delivered or transferred, directly or indirectly, in or into the United States
absent registration or an applicable exemption from the registration
requirements of the Securities Act and in compliance with state laws. There will
be nopublic offer of thePlacing Sharesin the United States.
The Placing Shares referred to in this Announcement are being offered and sold
only outside theUnited Statesin "offshore transactions" (within the meaning
Regulation S) meeting the requirements of Regulation S and within the United
States to QIBs in transactions that are exempt from, or not subject to, the
registration requirements of the Securities Act.
The Placing
Shares have not been approved or disapproved bythe US Securities and Exchange
Commission,any state securities commission or any other regulatory authority in
the United States, nor have any of the foregoing authorities passed upon or
endorsed the merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal offence in the
United States.
This Announcement, including the Appendix, is
not for distribution directly or indirectly in or into Canada,Australia, South
AfricaorJapanor any jurisdiction into which the same would be unlawful. This
Announcement does not constitute or form part of an offer or solicitation to
acquire shares in the capital of the Company in Canada,Australia, South
AfricaorJapanor any jurisdiction in which such an offer or solicitation is
unlawful. No public offering of securities of the Company will be made in
connection with the Placing in theUnited Kingdom, Finlandor elsewhere.
The relevant clearances have not been, and nor will they be,
obtained from the securities commission of any province or territory of Canada;
no prospectus has been lodged with, or registered by, the Australian Securities
and Investments Commission or the Japanese Ministry of Finance; and the Placing
Shares have not been, and nor will they be, registered under or offered in
compliance with thesecurities laws of any state, province
orterritoryofCanada,Australia, South Africa orJapan. Accordingly, the Placing
Shares may not (unless an exemption under the relevant securities laws is
applicable) be offered, sold, reoffered, resold, pledged or otherwise delivered
or transferred, directly or indirectly, in or into, Canada, Australia, South
Africa or Japan or any other jurisdiction in which offers or sales would be
prohibited by applicable law.
Persons (including, without
limitation, nominees and trustees) who have a contractual or other legal
obligation to forward a copy of the Appendix or this Announcement should seek
appropriate advice before taking any action.
This
Announcement relates to an "Exempt Offer" in accordance with the Offered
Securities Rules of the Dubai Financial Services Authority ("DFSA"). This
Announcement is intended for distribution only to persons of a type specified in
the Offered Securities Rules of the DFSA. It must not be delivered to, or relied
on by, any other person. The DFSA has no responsibility for reviewing or
verifying any documents in connection with Exempt Offers. The DFSA has not
approved this Announcement nor taken steps to verify the information set forth
herein and has no responsibility for this Announcement. The Placing Shares to
which this Announcement relates may be illiquid and / or subject to restrictions
on their resale. Prospective subscribers of the Placing Shares offered should
conduct their own due diligence on the Placing Shares. If you do not understand
the contents of this Announcement you should consult an authorised financial
advisor.
The Placing Shares to be issued pursuant to the
Placing will not be admitted to trading on any stock exchange other than the
London Stock Exchange and the Helsinki Stock Exchange. Neither the content of
the Company's website nor any website accessible by hyperlinks on the Company's
website is incorporated in, or forms part of, this Announcement.
APPENDIX: TERMS AND
CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR
PLACEES ONLY REGARDING THE PLACING.
THIS ANNOUNCEMENT,
INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS
NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO
THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY JURISDICTION IN
WHICH THE SAME WOULD BE UNLAWFUL.
EACH PLACEE SHOULD CONSULT
WITH ITS OWN ADVISORS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A
PURCHASE OF THE PLACING SHARES.
Details of
the Placing
The Joint Lead Managers have entered into a
placing agreement with the Company (the "Placing Agreement") under which,
subject to the conditions set out in the Placing Agreement, the Joint Lead
Managers have agreed to use reasonable endeavours to procure subscribers for
Placing Shares at a price determined following completion of the bookbuilding
process in respect of the Placing (the "Bookbuild"), described in this
Announcement and set out in the Placing Agreement, and to the extent that any
such Placees procured by any of the Joint Lead Managers, fails to pay for the
Placing Shares it had agreed to subscribe for, the relevant Joint Lead Manager
has agreed (itself or through an Affiliate, as the case may be) to subscribe for
such Placing Shares at the agreed price.
The Placing Shares
have been duly authorised and will, when issued, be credited as fully paid and
will rankpari passuin all respects with the existing issued Ordinary Shares
including the right to receive all dividends and other distributions declared,
made or paid in respect of such Ordinary Shares after the date of issue of the
Placing Shares. The Placing Shares will be issued free of any pre-emption
rights, encumbrance, lien or other security interest.
As part
of the Placing, the Company has agreed that it will not issue or sell any
Ordinary Shares for a period of 180 days after the Placing Shares have been
issued, without the prior consent of the Joint Lead Managers. This agreement is
subject to customary exceptions and does not, however, prevent the Company from
granting or satisfying exercises of options granted pursuant to the terms of
existing employee share schemes of the Company or issuing Ordinary Shares upon
conversion of the convertible bonds of the Company as disclosed in publicly
available information. Additionally, the Company's largest shareholder, Pekka
Perä (c. 22.9% shareholder), has confirmed that he does not intend to sell any
Ordinary Shares for a period of 180 days after Admission. This confirmation does
not prevent Pekka Perä from selling options granted to him (and whichdo not
form part ofhisexisting shareholding) under existing employee share schemes of
the Company as disclosed in publicly available information.
Application for listing and admission to trading
Application will be made to the FSA as competent authority for
listing (subject to the passing of the proposed Resolution at the EGM) for
admission of the Placing Shares to the premium segment of the Official List of
the FSA (the "Official List") and to the London Stock Exchange plc (the "London
Stock Exchange") for admission to trading of the Placing Shares on its main
market for listed securities. Application will be made to the Helsinki Stock
Exchange for admission (subject to the passing of proposed Resolution at the
EGM) of the Placing Shares on the Helsinki Stock Exchange. It is expected that
Admission on the London Stock Exchange and the Helsinki Stock Exchange will
become effective on or around 14 March 2012 and that dealings in the Placing
Shares will commence at that time.
Bookbuild
The Joint Lead Managers will
today commence the Bookbuild to determine demand for participation in the
Placing by Placees. This Appendix gives details of the terms and conditions of,
and the mechanics of participation in, the Placing. No fees or commissions will
be paid to Placees or by Placees in respect of any Placing Shares.
The Joint Lead Managers and the Company shall be entitled to
effect the Placing by such alternative method to the Bookbuild as they may, in
their sole discretion, determine.
Participation in, and principal terms of, the Placing
1.BofA Merrill Lynch is acting as sole bookrunner and the Joint
Lead Managers are acting as joint lead managers and agents of the Company.
2.Participation in the Placing will only be available to persons
who may lawfully be, and are, invited to participate by the Joint Lead Managers.
The Joint Lead Managers and their Affiliates are each entitled to enter bids in
the Bookbuild as principal.
3.The Bookbuild will establish a
single price payable to the Joint Lead Managers by all Placees whose bids are
successful (the "Placing Price"). The Placing Price and the number of Placing
Shares to be issued will be agreed between the Joint Lead Managers and the
Company following completion of the Bookbuild. Any discount to the market price
of the Ordinary Shares will be determined in accordance with the Listing Rules.
The Placing Price and the number of Placing Shares will be announced on a
Regulatory Information Service and as a stock exchange release pursuant to
Finnish Securities Law following the completion of the Bookbuild.
4.To bid in the Bookbuild, Placees should communicate their bid
by telephone to their usual sales contact at either of the Joint Lead Managers.
Each bid should state the number of Placing Shares which the prospective Placee
wishes to subscribe for at either the Placing Price, which is ultimately
established by the Company and the Joint Lead Managers, or at prices up to a
price limit specified in its bid. Bids may be scaled down by the Joint Lead
Managers on the basis referred to in paragraph9below. The Joint Lead Managers
reserve the right not to accept bids or to accept bids in part rather than in
whole. The acceptance of bids shall be at each Joint Lead Manager's absolute
discretion.
5.The Bookbuild is expected to close no later
than 4.30 p.m. (Londontime) on 16 February 2012 but may be closed earlier or
later at the discretion of the Joint Lead Managers. The Joint Lead Managers may,
in agreement with the Company, accept bids that are received after the Bookbuild
has closed. The Company reserves the right (upon the agreement of the Joint Lead
Managers) to reduce or seek to increase the amount to be raised pursuant to the
Placing, in its absolute discretion.
6.Each prospective
Placee's allocation will be agreed between the Joint Lead Managers and the
Company and will be confirmed orally by one of the Joint Lead Managers as agent
of the Company following the close of the Bookbuild. That oral confirmation will
constitute an irrevocable legally binding commitment upon that person (who will
at that point become a Placee) in favour of the Company and the Joint Lead
Managers to subscribe for the number of Placing Shares allocated to it at the
Placing Price on the terms and conditions set out in this Appendix and in
accordance with the Company's articles of association.
7.Each prospective Placee's allocation and commitment will be evidenced by a
contract note issued to such Placee by one of the Joint Lead Managers. The terms
of this Appendix will be deemed incorporated in that contract note.
8.Each Placee will also have an immediate, separate, irrevocable
and binding obligation, owed to the relevant Joint Lead Manager as agent of the
Company to pay in cleared funds, an amount equal to the product of the Placing
Price and the number of Placing Shares such Placee has agreed to subscribe and
the Company has agreed to allot and issue to that Placee.
9.The Joint Lead Managers may choose to accept bids, either in whole or in
part, on the basis of allocations determined in agreement with the Company and
may scale down any bids for this purpose on such basis as they may determine.
The Joint Lead Managers may also, notwithstanding paragraphs4and5above, subject
to the prior consent of the Company (i) allocate Placing Shares after the time
of any initial allocation to any person submitting a bid after that time and
(ii) allocate Placing Shares after the Bookbuild has closed to any person
submitting a bid after that time.
10.A bid in the Bookbuild
will be made on the terms and subject to the conditions in this Announcement and
will be legally binding on the Placee on behalf of which it is made and except
with the consent of either of the Joint Lead Managers will not be capable of
variation or revocation after the time at which it is submitted.
11.Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing Shares to be
subscribed for pursuant to the Placing will be required to be made at the same
time, on the basis explained below under "Registration and Settlement".
12.All obligations under the Bookbuild and Placing will be
subject to fulfilment of the conditions referred to below under "Conditions of
the Placing" and to the Placing not being terminated on the basis referred to
below under "Termination of the Placing Agreement".
13.By
participating in the Bookbuild, each Placee will agree that its rights and
obligations in respect of the Placing will terminate only in the circumstances
described below and will not be capable of rescission or termination by the
Placee.
14.To the fullest extent permissible by law, none of
the Joint Lead Managers nor any of their Affiliates nor any person acting on
their behalf shall have any responsibility or liability to any Placee (or to any
other person whether acting on behalf of a Placee or otherwise). In particular,
none of the Joint Lead Managers nor any of their Affiliates nor any person
acting on their behalf shall have any responsibility or liability (including to
the fullest extent permissible by law, any fiduciary duties) in respect of the
Joint Lead Managers's conduct of the Bookbuild or of such alternative method of
effecting the Placing as the Joint Lead Managers and the Company may agree.
15. In addition, certain of the Joint Lead Managers or their
Affiliates may enter into financing arrangements and swaps with investors in
connection with which such Joint Lead Managers (or their Affiliates) may from
time to time acquire, hold or dispose of Ordinary Shares.
Conditions of the Placing
The Placing is
conditional upon the Placing Agreement becoming unconditional and not having
been terminated in accordance with its terms. The obligations of the Joint Lead
Managers under the Placing Agreement are conditional on, amongst other things:
(a)agreement being reached between the Company and the Joint
Lead Managers on the Placing Price and the number of Placing Shares;
(b)the representations and warranties contained in the Placing
Agreement being true, accurate and complete on the date of the Placing Agreement
and remaining so at all times down to and including Admission (by reference to
the facts and circumstances then existing);
(c)the Company
complying with its obligations under the Placing Agreement to the extent the
same fall to be performed or satisfied prior to Admission;
(d)Admission taking place by 8.00 a.m. (Londontime) on 14 March 2012 (or such
later date as the Joint Lead Managers may otherwise determine);
(e)in the opinion of BofA Merrill Lynch, acting in good faith,
there not having been and BofA Merrill Lynch not having become aware of a
material adverse change in, or any development involving a prospective material
adverse change in, the condition, financial, operational or otherwise, or in the
management, prospects, results of operations or business of the Company and its
subsidiaries taken as a whole; and
(f) the passing of the
Resolution (without amendment) at the EGM (and not, save with the written
consent of the Joint Lead Managers, at any adjournment thereof).
If (i) any of the conditions contained in the Placing Agreement
in relation to the Placing Shares are not fulfilled or, where permitted, waived
by BofA Merrill Lynch, by the respective time or date where specified (or such
later time and/or date as the Company and BofA Merrill Lynch may agree), or (ii)
the Placing Agreement is terminated in the circumstances specified below, the
Placing will not proceed and each Placee's rights and obligations hereunder in
relation to the Placing Shares shall cease and terminate at such time and each
Placee agrees that no claim can be made by the Placee in respect thereof.
BofA Merrill Lynch may, at its discretion and upon such terms as
it thinks fit, extend the time for satisfaction of any condition or waive
compliance by the Company with the whole or any part of any of the Company's
obligations in relation to the conditions in the Placing Agreement save that the
condition in the Placing Agreement relating to Admission taking place may not be
waived. Any such extension or waiver will not affect Placees' commitments as set
out in this Announcement.
None of BofA Merrill Lynch, the
Company or any other person shall have any responsibility or liability to any
Placee (or to any other person whether acting on behalf of a Placee or
otherwise) in respect of any decision they may make as to whether or not to
waive or to extend the time and /or the date for the satisfaction of any
condition to the Placing nor for any decision they may make as to the
satisfaction of any condition or in respect of the Placing generally, and by
participating in the Placing each Placee agrees that any such decision is within
the absolute discretion of BofA Merrill Lynch.
By
participating in the Bookbuild, each Placee agrees that its rights and
obligations hereunder terminate only in the circumstances described above and
under "Termination of the Placing Agreement" below, and will not be capable of
rescission or termination by the Placee.
Termination of the Placing Agreement
BofA
Merrill Lynch on behalf of the Joint Lead Managers is entitled, at any time
before Admission, to terminate the Placing Agreement in relation to their
obligations in respect of the Placing Shares by giving notice to the Company if,
amongst other things:
(a)any of the conditions to the Joint
Lead Managers' obligations under the Placing Agreement have not been satisfied
by the Company or waived by BofA Merrill Lynch; or
(b) there
has been a breach of any of the warranties and representations contained in the
Placing Agreement or any material failure to perform any of the undertakings or
agreements in the Placing Agreement; or
(c)it shall come to
the notice of BofA Merrill Lynch that any statement contained in this
Announcement, or any other document or announcement issued or published by or on
behalf of the Company in connection with the Placing (together, the "Placing
Documents"), is or has become untrue, incorrect or misleading in any material
respect, or any matter has arisen, which would, if the Placing were made at that
time, constitute a material omission from the Placing Documents or a material
omission from or misleading inaccuracy in publicly available information made
public by the Company previously, or any of them, and which BofA Merrill Lynch,
acting in good faith, considers to be material in the context of the Placing or
the underwriting of the Placing Shares, Admission or any of the transactions
contemplated by the Placing Agreement; or
(d)there has
occurred (i) any material adverse change in the financial markets in the United
States, the United Kingdom, Finland, any member states of the European Union or
in the international financial markets, (ii) any outbreak or escalation of
hostilities, or other calamity or crisis or (iii) any change or development
involving a prospective change in national political, financial or economic
conditions, or currency exchange rates in such countries or internationally, in
each case the effect of which is such as to make it, in the judgement of BofA
Merrill Lynch acting in good faith, impracticable or inadvisable to market the
Placing Shares or to enforce contracts for the sale of the Placing Shares; or
(e)if trading in the Ordinary Shares is suspended or limited or
there are certain other disruptions, limitations or suspensions in respect of
the operations of certain stock exchanges or a banking moratorium is declared by
certain authorities, or if there is an announcement of intended withdrawal from
the Euro, or of intended redomination of any obligation, private or public, by
any EEA member state which is such to make it, in the judgement of BofA Merrill
Lynch acting in good faith, impracticable or inadvisable to market the Placing
Shares or to enforce contracts for the sale of the Placing Shares.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising before or in
relation to such termination) from their respective obligations under or
pursuant to the Placing Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise
by BofA Merrill Lynch of any right of termination or other discretion under the
Placing Agreement shall be within the absolute discretion of BofA Merrill Lynch
and that it need not make any reference to Placees and that it shall have no
responsibility or liability to Placees whatsoever in connection with any such
exercise or failure so to exercise.
No
prospectus
No offering document or prospectus has been
or will be submitted to be approved by the FSA or the FFSA in relation to the
Placing and Placees' commitments will be made solely on the basis of publicly
available information taken together with the information contained in this
Announcement (including this Appendix) released by the Company today, and any
Exchange Information (as defined below) previously published by the Company and
subject to the further terms set forth in the contract note to be provided to
individual prospective Placees.
Each Placee, by accepting a
participation in the Placing, agrees that the content of this Announcement
(including this Appendix) and the publicly available information released by or
on behalf of the Company is exclusively the responsibility of the Company and
confirms that it has neither received nor relied on any other information,
representation, warranty, or statement made by or on behalf of the Company
(other than publicly available information) or the Joint Lead Managers or their
Affiliates (other than the amount of the relevant Placing participation in the
oral confirmation given to Placees and the contract note referred to below) or
any other person and none of the Joint Lead Managers, their Affiliates, any
persons acting on their behalf or the Company nor any other person will be
liable for any Placee's decision to participate in the Placing based on any
other information, representation, warranty or statement which the Placees may
have obtained or received (regardless of whether or not such information,
representation, warranty or statement was given or made by or on behalf of any
such persons). Each Placee acknowledges and agrees that it has relied on its own
investigation of the business, financial or other position of the Company in
accepting a participation in the Placing. Nothing in this paragraph shall
exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following
Admission will take place within the Book-entry System.
Placees outside of the Republic of Finland who wish to hold their Placing
Shares in uncertificated form in CREST will not be issued with Ordinary Shares
but will receive their interest in the Company by means of the CREST
International Settlement Links Service and, in particular, the link with
Euroclear Finland and SIX SIS AG. The Placing Shares will be issued by the
Company and incorporated within the Book-entry System and then transferred to
CREST International Nominees Limited ("CINL"), a subsidiary of CRESTCo, which
will hold them on trust and will be subject to the existing depositary
arrangements between the Company and the depositary.
The
Company reserves the right to require settlement for and delivery of the Placing
Shares (or a portion thereof) to Placees who are outside of the Republic of
Finland in certificated form if, in the Joint Lead Managers' opinion, delivery
or settlement is not possible or practicable within the CREST system or would
not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each
Placee allocated Placing Shares in the Placing will be sent a contract note
stating the number of Placing Shares to be allocated to it at the Placing Price
and settlement instructions.
Each Placee agrees that it will
do all things necessary to ensure that delivery and payment is completed within
the Book-entry System maintained by Euroclear Finland and in respect of CREST.
It is expected that settlement will be on 14 March 2012 in
accordance with the instructions given to the Joint Lead Managers.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out above at the
rate oftwo percentage points above LIBORas determined by the Joint Lead
Managers.
Each Placee agrees that, if it does not comply
with these obligations, any or all of the Placing Shares allocated to that
Placee may be sold on such Placee's behalf and an amount equal to the aggregate
amount owed by the Placee plus any interest due will be retained from the
proceeds for the Company's account and benefit. The relevant Placee will,
however, remain liable for any shortfall below the aggregate amount owed by it
and shall be required to bear any stamp duty, stamp duty reserve tax or other
stamp, securities, transfer, registration, execution, documentary or other
similar impost, duty or tax (together with any interest or penalties) which may
arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the contract note is copied and
delivered immediately to the relevant person within that organisation. Insofar
as Placing Shares are registered in a Placee's name or that of its nominee or in
the name of any person for whom a Placee is contracting as agent or that of a
nominee for such person, such Placing Shares should, subject to as provided
below, be so registered free from any liability to UK stamp duty or stamp duty
reserve tax. Placees will not be entitled to receive any fee or commission in
connection with the Placing. If there are any circumstances in which any other
stamp duty or stamp duty reserve tax (together with interest and penalties) is
payable in respect of the issue of the Placing Shares, neither the Joint Lead
Managers nor the Company shall be responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes,
represents, warrants and agrees (as the case may be) with the Joint Lead
Managers and the Company, in each case as a fundamental term of their
application for Placing Shares as set out below. Each Placee (and any person
acting on such Placee's behalf):
1.represents and warrants
that it has read and understood this Announcement, including the Appendix, in
its entirety and that its subscription for the Placing Shares is subject to and
based upon all the terms, conditions, warranties, acknowledgements, agreements
and undertakings and other information contained herein;
2.acknowledges and agrees that no offering document, listing particulars or
prospectus has been or will be prepared in connection with the Placing and
represents and warrants that it has not received a prospectus or other offering
document in connection with the Bookbuild, the Placing or the Placing Shares;
3.acknowledges that the Ordinary Shares are listed on the
Official List of the FSA and the Helsinki Stock Exchange, and the Company is
therefore required to publish certain business and financial information in
accordance with the rules and practices of the FSA, the FFSA and the Helsinki
Stock Exchange and Finnish Securities Law (collectively, the "Exchange
Information"), which includes a description of the nature of the Company's
business and its most recent balance sheet and profit and loss account and
similar statements for preceding financial years and that it has reviewed such
Exchange Information and is able to obtain or access such Exchange Information
without undue difficulty, and is able to obtain access to such information or
comparable information concerning any other publicly traded company, without
undue difficulty;
4.acknowledges that none of the Joint Lead
Managers or the Company nor any of their Affiliates nor any person acting on
behalf of any of them has provided, and will not provide, it with any material
or information regarding the Placing Shares, the Placing or the Company or any
other person other than this Announcement; nor has it requested any of the Joint
Lead Managers, the Company, any of their Affiliates or any person acting on
behalf of any of them to provide it with any such material or information;
5.acknowledges that (i) it and, if different, the beneficial
owner of the Placing Shares is not, and at the time the Placing Shares are
acquired will not be, a resident of Australia, Canada, South Africa or Japan,
and (ii) the Placing Shares have not been and will not be registered under the
securities legislation of the United States, Australia, Canada, South Africa or
Japan or any other Prohibited Jurisdiction and, subject to certain exceptions,
may not be offered, sold, reoffered, resold, pledged or otherwise delivered or
transferred, directly or indirectly, in or into such Prohibited Jurisdiction;
6. confirms that (i) it is not within Australia, Canada,
South Africa, Japan or any other Prohibited Jurisdiction in which it is unlawful
to make or accept an offer to acquire the Placing Shares; (ii) either (a) it is
not within the United States and is acquiring the Placing Shares in an "offshore
transaction" (within the meaning of Regulation S under the Securities Act) or
(b) it is a QIB; and (iii) it is not acquiring the Placing Shares with a view to
the offer, sale, resale, transfer, delivery or distribution, directly or
indirectly, of any such Placing Shares into the United States or any other
Prohibited Jurisdiction;
7. acknowledges that the Placing
Shares have not been and will not be qualified by a prospectus under Canadian
Securities Laws and are not being offered or sold to any person in any Canadian
jurisdiction, except as may be permitted by applicable laws;
8.acknowledges that the content of this Announcement is exclusively the
responsibility of the Company and that none of the Joint Lead Managers nor any
person acting on their behalf has or shall have any responsibility or liability
for any information, representation or statement contained in this Announcement
or any information previously published by or on behalf of the Company and will
not be liable for any Placee's decision to participate in the Placing based on
any information, representation or statement contained in this Announcement, any
information previously published by or on behalf of the Company or otherwise.
Each Placee further represents, warrants and agrees that the only information on
which it is entitled to rely and on which such Placee has relied in committing
itself to subscribe for the Placing Shares is contained in this Announcement and
any Exchange Information , such information being all that it deems necessary to
make an investment decision in respect of the Placing Shares and that it has
neither received nor relied on any other information given, investigations or
representations, warranties or statements made by any of the Joint Lead Managers
or the Company and none of the Joint Lead Managers or the Company will be liable
for any Placee's decision to accept an invitation to participate in the Placing
based on any other information, representation, warranty or statement. Each
Placee further acknowledges and agrees that it has relied on its own
investigation of the business, financial or other position of the Company in
deciding to participate in the Placing;
9. acknowledges that
it has not relied on any information relating to the Company contained in any
research reports prepared by any of the Joint Lead Managers, any of their
Affiliates or any person acting on the Joint Lead Managers' or any of their
Affiliates' behalf and understands that (i) none of the Joint Lead Managers, any
of their Affiliates nor any person acting on their behalf has or shall have any
liability for public information or any representation; (ii) none of the Joint
Lead Managers, any of their Affiliates nor any person acting on their behalf has
or shall have any liability for any additional information that has otherwise
been made available to such Placee, whether at the date of publication, the date
of this document or otherwise; and that (iii) none of the Joint Lead Managers,
any of their Affiliates nor any person acting on their behalf makes any
representation or warranty, express or implied, as to the truth, accuracy or
completeness of such information, whether at the date of publication, the date
of this Announcement or otherwise;
10.acknowledges that none
of the Joint Lead Managers nor any person acting on behalf of them nor any of
their Affiliates has or shall have any responsibility or liability for any
Exchange Information, any publicly available or filed information, or any
representation relating to the Company, provided that nothing in this paragraph
excludes the liability of any person for fraudulent misrepresentation made by
that person;
11.represents and warrants that neither it, nor
the person specified by it for registration as a holder of Placing Shares is, or
is acting as nominee or agent for, and that the Placing Shares will not be
allotted to, a person whose business either is or includes issuing depositary
receipts or the provision of clearance services and therefore that the issue to
the Placee, or the person specified by the Placee for registration as holder, of
the Placing Shares will not give rise to a liability under any of sections 67,
70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance
services) and that the Placing Shares are not being acquired in connection with
arrangements to issue depositary receipts or to issue or transfer Placing Shares
into a clearance system;
12. acknowledges that no action has
been or will be taken by the Company, the Joint Lead Managers or any person
acting on behalf of the Company or the Joint Lead Managers that would, or is
intended to, permit a public offer of the Placing Shares in any country or
jurisdiction where any such action for that purpose is required
13.represents and warrants that it has complied with its obligations in
connection with money laundering and terrorist financing under the Criminal
Justice Act 1993, Proceeds of Crime Act 2002, the Terrorism Act 2000, the
Terrorism Act 2006 and the Money Laundering Regulations 2007 (the "Regulations")
and, if making payment on behalf of a third party, that satisfactory evidence
has been obtained and recorded by it to verify the identity of the third party
as required by the Regulations;
14. represents and warrants
that it is acting as principal only in respect of the Placing or, if it is
acting for any other person (i) it is duly authorised to do so, (ii) it is and
will remain liable to the Company and/or the Joint Lead Managers for the
performance of all its obligations as a Placee in respect of the Placing
(regardless of the fact that it is acting for another person), (iii) it is both
an "authorised person" for the purposes of FSMA and a "qualified investor"
("Qualified Investor") as defined in the Prospectus Directive acting as agent
for such person, and (iv) such person is either (1) a "qualified investor" as
referred to at section 86(7) of FSMA or (2) a "client" (as defined in section
86(2) of FSMA) of its that has engaged it to act as such client's agent on terms
which enable it to make decisions concerning the Placing or any other offers of
transferable securities on such client's behalf without reference to such
client;
15. represents and warrants that it will subscribe
for any Placing Shares for which it subscribes for its own account or for one or
more accounts as to each of which it exercises sole investment discretion and it
has full power to make the acknowledgements, representations and agreements
herein on behalf of each such account;
16.if a financial
intermediary, as that term is used in Article 3(2) of EU Directive 2003/71/EC as
amended (the "Prospectus Directive") (including any relevant implementing
measure in any member state), represents and warrants that the Placing Shares
subscribed for by it in the Placing will not be subscribed for on a
non-discretionary basis on behalf of, nor will they be subscribed for with a
view to their offer or resale to, persons in a member state of the European
Economic Area which has implemented the Prospectus Directive other than to
Qualified Investors, or in circumstances in which the prior consent of the Joint
Lead Managers has been given to the proposed offer or resale;
17.represents and warrants that it has not offered or sold and, prior to the
expiry of a period of six months from Admission, will not offer or sell any
Placing Shares to persons in the United Kingdom, except to Qualified Investors
or otherwise in circumstances which have not resulted and which will not result
in an offer to the public in the United Kingdom within the meaning of section
85(1) of the Financial Services and Markets Act 2000 ("FSMA");
18.acknowledges that any offer of Placing Shares may only be directed at
persons in member states of the European Economic Area who are Qualified
Investors and represents and warrants that it has not offered or sold and will
not offer or sell any Placing Shares to persons in the European Economic Area
prior to Admission except to Qualified Investors or otherwise in circumstances
which have not resulted in and which will not result in an offer to the public
in any member state of the European Economic Area within the meaning of the
Prospectus Directive (including any relevant implementing measure in any member
state);
19.represents and warrants that it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of FSMA) relating to the Placing Shares in
circumstances in which section 21(1) of FSMA does not require approval of the
communication by an authorised person;
20.represents and
warrants that it has complied and will comply with all applicable provisions of
FSMA with respect to anything done by it in relation to the Placing Shares in,
from or otherwise involving, the United Kingdom;
21.
represents and warrants that it is a person falling within Articles 19(1),
Article 19(5) and/ or Article 49(2)(a) to (d) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 or is a person to whom this
Announcement may otherwise be lawfully communicated;
22.represents and warrants that (i) it and any person acting on its behalf has
capacity and authority and is otherwise entitled to subscribe for and purchase
the Placing Shares under the laws of all relevant jurisdictions which apply to
it; (ii) it has paid any issue, transfer or other taxes due in connection with
its participation in any territory; (iii) it has not taken any action which will
or may result in the Company, the Joint Lead Managers, any of their Affiliates
or any person acting on their behalf being in breach of the legal and/or
regulatory requirements of any territory in connection with the Placing and (iv)
that the subscription for and purchase of the Placing Shares by it or any person
acting on its behalf will be in compliance with applicable laws and regulations
in the jurisdiction of its residence, the residence of the Company, or
otherwise;
23.undertakes that it (and any person acting on
its behalf) will make payment for the Placing Shares allocated to it in
accordance with this Announcement on the due time and date set out herein
against delivery of such Placing Shares to it, failing which the relevant
Placing Shares may be placed with other Placees or sold as the Joint Lead
Managers may in their absolute discretion determine and it will remain liable
for any shortfall below the net proceeds of such sale and the placing proceeds
of such Placing Shares and may be required to bear any stamp duty or stamp duty
reserve tax (together with any interest or penalties due pursuant to the terms
set out or referred to in this document) which may arise upon the sale of such
Placee's Placing Shares on its behalf;
24.acknowledges that
its allocation (if any) of Placing Shares will represent a maximum number of
Placing Shares which it will be entitled, and required, to subscribe for, and
that the Company may call upon it to subscribe for a lower number of Placing
Shares (if any), but in no event in aggregate more than the aforementioned
maximum;
25.acknowledges that none of the Joint Lead
Managers, nor any of their respective Affiliates, nor any person acting on
behalf of either of them, is making any recommendations to it, or advising it
regarding the suitability or merits of any transactions it may enter into in
connection with the Placing and that participation in the Placing is on the
basis that it is not and will not be a client of any of the Joint Lead Managers
and that the Joint Lead Managers have no duties or responsibilities to any
Placee for providing the protections afforded to their clients or customers or
for providing advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained in the
Placing Agreement nor for the exercise or performance of any of its rights and
obligations thereunder including any rights to waive or vary any conditions or
exercise any termination right;
26.undertakes that (i) the
person whom it specifies for registration as holder of the Placing Shares will
be (a) itself or (b) its nominee, as the case may be. None of the Joint Lead
Managers or the Company will be responsible for any liability to stamp duty or
stamp duty reserve tax (together with interest and penalties) resulting from a
failure to observe this requirement And (iii) each Placee and any person acting
on behalf of such Placee agrees to participate in the Placing on the basis that
the Placing Shares will be transferred to the stock account of BofA Merrill
Lynch with CREST who will hold them as nominee on behalf of such Placee until
settlement in accordance with its standing settlement instructions with payment
for the Placing Shares being made simultaneously upon receipt of the Placing
Shares in the Placee's stock account on a delivery versus payment basis;
27.acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and conditions and any
non-contractual obligations arising out of or in connection with such agreements
shall be governed by and construed in accordance with the laws of England and
Wales and it submits (on behalf of itself and on behalf of any person on whose
behalf it is acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter arising out of any such contract, except
that enforcement proceedings in respect of the obligation to make payment for
the Placing Shares (together with any interest chargeable thereon) may be taken
by the Company or the Joint Lead Managers in any jurisdiction in which the
relevant Placee is incorporated or in which any of its securities have a
quotation on a recognised stock exchange;
28.acknowledges
that the Joint Lead Managers will rely upon the truth and accuracy of the
representations, warranties, agreements, undertakings and acknowledgements set
forth herein and which are irrevocable and it irrevocably authorises the Joint
Lead Managers to produce this Announcement, pursuant to, in connection with, or
as may be required by any applicable law o