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
FOR SALE OR 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. The Placing 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. The Placing 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 no public offer of the Placing
Shares in the United States.
The Placing Shares referred to in this Announcement are being offered and sold
only outside the United States in "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 by the 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 Africa or Japan or 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 Africa or Japan or 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 the United Kingdom, Finland or 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
the securities laws of any state, province or territory of Canada, Australia,
South Africa or Japan. 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 rank pari passu in 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 which do not
form part of his existing 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 paragraph 9 below. 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. (London time)
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 paragraphs 4 and 5 above,
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. (London time) 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 of two
percentage points above LIBOR as 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 or regulation,
administrative or legal proceeding or official inquiry with respect to the
matters set forth herein;
29. agrees to indemnify on an after-tax basis and hold the Company, the
Joint Lead Managers and their respective Affiliates and any person acting on
their behalf harmless from any and all costs, claims, liabilities and expenses
(including legal fees and expenses) arising out of or in connection with any
breach of the representations, warranties, acknowledgements, agreements and
undertakings in this Appendix and further agrees that the provisions of this
Appendix shall survive after completion of the Placing;
30. acknowledges that it irrevocably appoints any director of
BofA Merrill Lynch as its agent for the purposes of executing and delivering to
the Company and/or its registrars any documents on its behalf necessary to
enable it to be registered as the holder of any of the Placing Shares agreed to
be taken up by it under the Placing;
31. acknowledges that its commitment to subscribe for Placing
Shares on the terms set out herein and in the contract note will continue
notwithstanding any amendment that may in future be made to the terms of the
Placing and that Placees will have no right to be consulted or require that
their consent be obtained with respect to the Company's conduct of the Placing;
32. in making any decision to subscribe for the Placing Shares,
confirms that (i) it has knowledge, sophistication and experience in financial,
business and international investment matters as is required to evaluate the
merits and risks of acquiring the Placing Shares; (ii) it is experienced in
investing in securities of this nature and is aware that it may be required to
bear, and is able to bear, the economic risk of, and is able to sustain a
complete loss in connection with, the Placing; (iii) it has relied on its own
examination and due diligence of the Company and its Affiliates taken as a
whole, and the terms of the Placing, including the merits and risks involved;
(iv) it has had sufficient time to consider and conduct its own investigation
with respect to the offer and purchase of the Placing Shares, including the tax,
legal, currency and other economic considerations relevant to such investment
and (v) will not look to the Company, the Joint Lead Managers, any of their
respective Affiliates or any person acting on their behalf for all or part of
any such loss or losses it or they may suffer;
33. acknowledges and agrees that the Joint Lead Managers do not
owe any fiduciary or other duties to it or any Placee in respect of any
representations, warranties, undertakings or indemnities in the Placing
Agreement;
34. understands and agrees that it may not rely on any
investigation that the Joint Lead Managers or any person acting on their behalf
may or may not have conducted with respect to the Company and its Affiliates or
the Placing and the Joint Lead Managers have not made any representation to it,
express or implied, with respect to the merits of the Placing, the subscription
for the Placing Shares, or as to the condition, financial or otherwise, of the
Company and its Affiliates, or as to any other matter relating thereto, and
nothing herein shall be construed as a recommendation to it to subscribe for the
Placing Shares. It acknowledges and agrees that no information has been
prepared by, or is the responsibility of, the Joint Lead Managers for the
purposes of this Placing;
35. acknowledges and agrees that it will not hold the Joint Lead
Managers or any of their Affiliates or any person acting on its behalf
responsible or liable for any misstatements in or omission from any publicly
available information relating to the Company's group or information made
available (whether in written or oral form) relating to the Company's group (the
"Information") and that none of the Joint Lead Managers or any person acting on
their behalf, makes any representation or warranty, express or implied, as to
the truth, accuracy or completeness of such Information or accepts any
responsibility for any of such Information;
36. acknowledges that in connection with the Placing, the Joint
Lead Managers and any of their Affiliates acting as an investor for their own
accounts may take up shares in the Company and in that capacity may retain,
purchase or sell for its own account such shares in the Company and any
securities of the Company or related investments and may offer or sell such
securities or other investments otherwise than in connection with the Placing.
Accordingly, references in this Announcement to shares being issued, offered or
placed should be read as including any issue, offering or placement of such
shares in the Company to the Joint Lead Manager and any Affiliate acting in such
capacity. No Joint Lead Manager nor any Affiliate intends to disclose the
extent of any such investment or transactions otherwise than in accordance with
any legal or regulatory obligations to do so;
37. acknowledges that (i) the Placing Shares are being offered
and sold outside the United States pursuant to Regulation S in a transaction not
involving a public offering of securities in the United States and the Placing
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, nor approved or disapproved by the US Securities and Exchange
Commission, any state securities commission in the United States or any other
United States regulatory authority;
38. represents and warrants that unless it is a QIB in the
United States to which the Placing Shares will be offered on a private placement
basis, it (a) is, and at the time the Placing Shares are acquired it will be,
outside the United States and (b) is acquiring the Placing Shares in an
"offshore transaction" (as defined in Regulation S);
39. represents and warrants that it is not taking up and will
not take up any Placing Shares as a result of any "directed selling efforts" as
that term is defined in Regulation S under the Securities Act;
40 The foregoing acknowledgements, agreements, undertakings, representations,
warranties and confirmations are given for the benefit of each of the Company as
well as the Joint Lead Managers (for their own benefit, and, where relevant, the
benefit of their respective Affiliates and any person acting on their behalf)
and are irrevocable. The agreement to settle a Placee's allocation (and/or the
allocation of a person for whom such Placee is contracting as agent) free of
stamp duty and stamp duty reserve tax depends on the settlement relating only to
the subscription by it and/or such person direct from the Company for the
Placing Shares in question. Such agreement assumes, and is based on a warranty
from each Placee, that neither it, nor the person specified by it for
registration as 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). If there are any such arrangements, or the settlement
relates to any other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax may be payable. In that event the Placee agrees that it shall be
responsible for such stamp duty or stamp duty reserve tax, and neither the
Company nor the Joint Lead Managers shall be responsible for such stamp duty or
stamp duty reserve tax. If this is the case, each Placee should seek its own
advice and notify the Joint Lead Managers accordingly;
Additional representations and warranties from purchasers in the United States
In addition to the foregoing, by participating in the Placing, each Placee (and
any person acting on such Placee's behalf) who is in the United States:
41. represents and warrants that (a) it is a QIB within the
meaning of Rule 144A under the Securities Act; (b) it has duly executed, or will
duly execute, an investor letter in the form provided to it by BofA Merrill
Lynch or Liberum, as the case may be, in which it will make certain
undertakings, representations and warranties in addition to those contained
herein; and (c) it is subscribing for the Placing Shares for its own account, or
for an account managed on behalf of another QIB, and not with a view to any
distribution within the meaning of the Securities Act or applicable state law
except as set forth below;
42. represents and warrants that it understands and acknowledges
that, the Placing Shares are being offered and sold to it in accordance with the
exemption from registration under the Securities Act for transactions by an
issuer not involving a public offering of securities in the United States and
that the Placing 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.
43. represents and warrants that the Placing Shares will not be
reoffered, resold, pledged or otherwise transferred by it except (a) outside the
United States in an offshore transaction pursuant to Rule 903 or Rule 904 of
Regulation S; (b) in the United States to a person whom the seller reasonably
believes is a QIB and to whom notice is given that the offer, sale or transfer
is being made in reliance on Rule 144A under the Securities Act; (c) pursuant to
Rule 144 under the Securities Act ("Rule 144"), if available; (d) to the
Company; (e) pursuant to an effective registration statement under the
Securities Act; or (f) pursuant to another available exemption, if any, from
registration under the Securities Act, in each case in compliance with all
applicable laws;
44. it understands and agrees that (a) the Placing Shares are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act;
45. represents and warrants that it will notify any transferee
to whom it subsequently reoffers, resells, pledges or otherwise transfers the
Placing Shares of the foregoing restrictions on transfer;
46. understands and acknowledges that the Company or registrar
and transfer agent for the Placing Shares are not required to accept for
registration of transfer any Placing Shares except upon presentation of evidence
(including an opinion of legal counsel satisfactory to the Company) to the
Company and the transfer agent that the foregoing restrictions on transfer have
been complied with;
47. represents and warrants that for so long as the Placing
Shares are "restricted securities" (within the meaning of Rule 144(a)(3) under
the Securities Act), it will segregate such Placing Shares from any other shares
that it holds that are not restricted securities, shall not deposit such shares
in any depositary facility (including any American Depositary Receipt Facility)
established or maintained by a depositary bank and will only transfer such
Placing Shares in accordance with the foregoing restrictions;
48. acknowledges that until 40 days after the later of the
commencement of the Placing and the closing date, an offer or sale of Placing
Shares within the United States by any dealer (whether or not participating in
the Placing) may violate the registration requirements of the Securities Act if
such offer or sale is made otherwise than in accordance with Rule 144A or
pursuant to another exemption from registration under the Securities Act;
49. represents and warrants that if it is acquiring the Placing
Shares as a fiduciary or agent for one or more investor accounts, each such
account is a QIB, it has sole investment discretion with respect to each such
account and it has full power and authority to make, and does make, the
acknowledgements, representations, warranties and agreements herein on behalf of
each such account;
50. represents and warrants that it is acquiring the Placing
Shares for its own account (or the account of a QIB as to which it has sole
investment discretion) for investment purposes and (subject to the disposition
of its property being at all times within its control) not with a view to any
distribution of the Placing Shares;
51. represents and warrants that it is not purchasing the
Placing Shares as a result of any "general solicitation or general advertising"
(as those terms are used in Regulation D under the Securities Act); and
52. represents and warrants that no representation has been made
as to the availability of the exemption provided by Rule 144 or any other
exemption under the Securities Act for the reoffer, resale, pledge or transfer
of the Placing Shares.
Other terms and conditions
In addition, Placees should note that they will be liable for any capital duty,
stamp duty and all other stamp, issue, securities, transfer, registration,
documentary or other similar impost, duties or taxes (including any interest,
fines or penalties relating thereto) payable outside the United Kingdom by them
or any other person on the subscription by them of any Placing Shares or the
agreement by them to subscribe for any Placing Shares.
Under Listing Rule 9.5.10 (3) the Placing Price cannot be set at a discount of
more than ten per cent. to the middle market price of the Ordinary Shares at the
time of agreeing the Placing unless such Placing Price is approved by the
Shareholders. In such a situation, the Resolution will be amended and
Shareholders will be asked to consider and, if thought fit, approve the Placing
Price. Each Placee and any person acting on behalf of each Placee acknowledges
and agrees that the Joint Lead Managers or any of their Affiliates may, at their
absolute discretion, agree to become a Placee in respect of some or all of the
Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with the Joint
Lead Managers, any money held in an account with any of the Joint Lead Managers
on behalf of the Placee and/or any person acting on behalf of the Placee will
not be treated as client money within the meaning of the rules and regulations
of the FSA made under FSMA. The Placee acknowledges that the money will not be
subject to the protections conferred by the client money rules; as a
consequence, this money will not be segregated from the relevant Joint Lead
Managers' money in accordance with the client money rules and will be used by
the relevant Joint Lead Managers in the course of their own business; and the
Placee will rank only as a general creditor of the Joint Lead Managers.
All times and dates in this Announcement may be subject to amendment. The Joint
Lead Managers shall notify the Placees and any person acting on behalf of the
Placees of any changes.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
The rights and remedies of the Joint Lead Managers and the Company under these
Terms and Conditions are in addition to any rights and remedies which would
otherwise be available to each of them and the exercise or partial exercise of
one will not prevent the exercise of others.
Each Placee may be asked to disclose in writing or orally to the Joint Lead
Managers:
if he is an individual, his nationality; or
if he is a discretionary fund manager, the jurisdiction in which the funds are
managed or owned.
DEFINITIONS
In this Announcement:
"Admission" means (i) the admission of the Placing Shares to listing on the
Official List of the Financial Services Authority and to trading on the main
market of the London Stock Exchange and (ii) the admission of the Placing Shares
to listing on the Helsinki Stock Exchange;
"Affiliate" has the meaning given in Rule 501(b) of Regulation D promulgated
under the Securities Act or Rule 405 under the Securities Act, as applicable;
"Announcement" means this announcement (including the appendix to this
announcement);
"Book-entry System" means the book-entry system maintained by Euroclear Finland
in accordance with the Finnish Act on Book-entry Systems (17.5.1991/826);
"BofAML" means Merrill Lynch International;
"Company" or "Talvivaara" means Talvivaara Mining Company PLC;
"CREST" means the relevant system, as defined in the Uncertificated Securities
Regulations 2001 (SI 2001/3755) (in respect of which Euroclear UK & Ireland
Limited is the operator);
"CRESTCo" means CRESTCo Limited, the operator of CREST;
"DFSA" means the Dubai Financial Services Authority;
"EGM" means the general meeting of the Company to be held on around 12 March
2012;
"Euroclear Finland" means Euroclear Finland Limited;
"FFSA" means the Finnish Financial Supervision Authority (Finanssivalvonta);
"Finnish Securities Law" means the laws, regulations, decrees, guidelines and
decisions taken by relevant authorities applicable to the Placing, including but
not limited to the Finnish Securities Market Act (26.5.1989/495) and the
administrative decrees and guidelines issued thereunder by the Ministry of
Finance and the Finnish Financial Supervision Authority, respectively, and the
rules of the Helsinki Stock Exchange;
"FSA" means the Financial Services Authority;
"FSMA" means Financial Services and Markets Act 2000, as amended;
"Group" means the Company and its subsidiaries;
"Helsinki Stock Exchange" means NASDAQ OMX Helsinki Ltd;
"Joint Lead Managers" means BofA Merrill Lynch, Liberum and Pohjola;
"Liberum" means Liberum Capital Limited;
"Listing Rules" means the listing rules made by the FSA under section 73A of the
FSMA and each a "Listing Rule";
"London Stock Exchange" means the London Stock Exchange plc;
"Official List" means the official list of the FSA;
"Ordinary Share" means an ordinary share of the Company;
"Placee" means any person (including individuals, funds or otherwise) by whom or
on whose behalf a commitment to subscribe for Placing Shares has been given;
"Placing" means the placing of the Placing Shares by the Joint Lead Managers, on
behalf of the Company, with both new and existing institutional investors;
"Placing Agreement" means the placing agreement dated 16 February 2012 among the
Company and the Joint Lead Managers in respect of the Placing;
"Placing Price" means the price per Ordinary Share at which the Placing Shares
are placed;
"Placing Shares" means up to 24,589,050 Ordinary Shares to be issued pursuant to
the Placing;
"Pohjola" means Pohjola Corporate Finance Ltd;
"Prospectus Directive" means the Directive of the European Parliament and of the
Council of the European Union 2003/71/EC;
"Resolution" means the resolution(s) to be approved in the EGM, in a form and
substance acceptable to the Joint Lead Managers;
"Securities Act" means the US Securities Act of 1933, as amended;
"Shareholder" means a holder of Ordinary Shares;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern
Ireland; and
"United States" or "US" means the United States of America, its territories and
possessions, any state of the United States and the District of Columbia
[HUG#1586412]
Proposed Placing of up to 24,589,050 new Ordinary Shares of Talvivaara Mining Company Plc
| Source: Talvivaaran Kaivososakeyhtiö Oyj
Attachments
