ANNEX A
"Non-U.S. Qualified Offeree"
means:
(1)
in relation to each Member State of the European Economic Area and the United Kingdom, a non-retail investor where a retail investor means a person
who is one (or more) of the following:
(a)
a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
(b)
a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify
as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
(c)
not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”).
and
(2)
in relation to an investor in the U.K., a “relevant person.” For the purposes of this provision, the expression “relevant person” means a person
who is a “qualified investor” (as defined in the Prospectus Regulation) who is one (or more) of the following:
(a)
persons who have professional experience in matters relating to investments falling within Article 19(5)
of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Order”); or
(b)
high net worth companies, and other persons falling within Article 49(2)(a) to (d) of the
Order; or
(c)
persons falling within Article 43 of the Order; or
(d)
any other persons to whom an invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Order) in connection with the issue or
sale of any notes may otherwise lawfully be communicated or caused to be
communicated.
(3) any entity outside the U.S. and the
European Economic Area to whom the offers related to the New Notes may be made
in compliance with all other applicable laws and regulations of any applicable
jurisdiction.
* * * * * *
"Qualified Investors"
means:
Persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive 2014/65/EU and persons or entities
who are, on request, treated as professional clients in accordance with Section II of that Annex, or recognized as eligible counterparties in accordance
with Article 30 of Directive 2014/65/EU unless they have entered into an agreement to be treated as non-professional clients in accordance with the
fourth paragraph of Section I of that Annex.
"Qualified Institutional Buyer"
means:
(1)
Any of the
following entities, acting for its own account or the accounts of other
qualified institutional buyers, that in the aggregate owns and invests on a
discretionary basis at least $100 million in securities of issuers that are not
affiliated with the entity:
(a)
Any insurance
company as defined in Section 2(a)(13) of the Securities Act (a purchase by an
insurance company for one or more of its separate accounts, as defined by
Section 2(a)(37) of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), which are neither registered under Section 8 of the
Investment Company Act nor required to be so registered, shall be deemed to be a
purchase for the account of such insurance company);
(b)
Any investment
company registered under the Investment Company Act or any business development
company as defined in Section 2(a)(48) of the Investment Company Act;
(c)
Any small
business investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of 1958;
(d)
Any plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions, for the benefit of
its employees;
(e)
Any employee
benefit plan within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended;
(f)
Any trust fund
whose trustee is a bank or trust company and whose participants are exclusively
plans of the types identified in subparagraph (1)(d) or (e) above, except trust
funds that include as participants individual retirement accounts or H.R. 10
plans;
(g)
Any business
development company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940, as amended (the "Investment Advisers Act");
(h)
Any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
corporation (other than a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or other institution referenced in Section
3(a)(5)(A) of the Securities Act or a foreign bank or savings and loan
association or equivalent institution), partnership, or Massachusetts or similar
business trust; and
(i)
Any investment
adviser registered under the Investment Advisers Act.
(2)
Any dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), acting for its own account or the accounts of
other qualified institutional buyers, that in the aggregate owns and invests on
a discretionary basis at least $10 million of securities of issuers that are not
affiliated with the dealer, provided that securities constituting the whole or a
part of an unsold allotment to or subscription by a dealer as a participant in a
public offering shall not be deemed to be owned by such dealer;
(3)
Any dealer
registered pursuant to Section 15 of the Exchange Act acting in a riskless
principal transaction on behalf of a qualified institutional buyer;
(4)
Any investment
company registered under the Investment Company Act, acting for its own account
or for the accounts of other qualified institutional buyers, that is part of a
family of investment companies which own in aggregate at least $100 million in
securities of issuers, other than issuers that are affiliated with the
investment company or are part of such family of investment companies. "Family of investment companies"
means any two or more investment companies registered under the Investment
Company Act, except for a unit investment trust whose assets consist solely of
shares of one or more registered investment companies, that have the same
investment adviser (or, in the case of unit investment trusts, the same
depositor), provided that:
(a)
Each series of a
series company (as defined in Rule 18f-2 under the Investment Company Act) shall
be deemed to be a separate investment company; and
(b)
Investment
companies shall be deemed to have the same adviser (or depositor) if their
advisers (or depositors) are majority-owned subsidiaries of the same parent, or
if one investment company’s adviser (or depositor) is a majority-owned
subsidiary of the other investment company’s adviser (or depositor);
(5)
Any entity, all
of the equity owners of which are qualified institutional buyers, acting for its
own account or the accounts of other qualified institutional buyers; and
(6)
Any bank as
defined in Section 3(a)(2) of the Securities Act, any savings and loan
association or other institution as referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or savings and loan association or
equivalent institution, acting for its own account or the accounts of other
qualified institutional buyers, that in the aggregate owns and invests on a
discretionary basis at least $100 million in securities of issuers that are not
affiliated with it and that has an audited net worth of at least $25 million as
demonstrated in its latest annual financial statements, as of a date not more
than 16 months preceding the date of sale under the rule in the case of a U.S.
bank or savings and loan association, and not more than 18 months preceding such
date of sale for a foreign bank or savings and loan association or equivalent
institution.
For purposes of the foregoing definition:
(1)
In determining
the aggregate amount of securities owned and invested on a discretionary basis
by an entity, the following instruments and interests shall be excluded: bank deposit notes and certificates
of deposit; loan participations; repurchase agreements; securities owned but
subject to a repurchase agreement; and currency, interest rate and commodity
swaps.
(2)
The aggregate
value of securities owned and invested on a discretionary basis by an entity
shall be the cost of such securities, except where the entity reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published. In the latter
event, the securities may be valued at market for purposes of the foregoing
definition.
(3)
In determining
the aggregate amount of securities owned by an entity and invested on a
discretionary basis, securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in accordance
with generally accepted accounting principles may be included if the investments
of such subsidiaries are managed under the direction of the entity, except that,
unless the entity is a reporting company under Section 13 or 15(d) of the
Exchange Act, securities owned by such subsidiaries may not be included if the
entity itself is a majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
(4)
"Riskless
principal transaction" means a transaction in which a dealer buys a security
from any person and makes a simultaneous offsetting sale of such security to a
qualified institutional buyer, including another dealer acting as riskless
principal for a qualified institutional buyer.
* * * * * *
"U.S. person"
means:
(1)
Any natural person resident in
the United States;
(2)
Any partnership or corporation
organized or incorporated under the laws of the United States;
(3)
Any estate of which any
executor or administrator is a U.S. person;
(4)
Any trust of which any trustee
is a U.S. person;
(5)
Any agency or branch of a
foreign entity located in the United States;
(6)
Any non-discretionary account
or similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a U.S. person;
(7)
Any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated, or (if an individual) resident in the United
States; and
(8)
Any partnership or corporation
if:
(a)
Organized or incorporated under
the laws of any foreign jurisdiction; and
(b)
Formed by a U.S. person principally for the purpose of investing in securities
not registered under the Securities Act, unless it is organized or incorporated,
and owned, by accredited investors (as defined in Rule 501(a) under the
Securities Act) who are not natural persons, estates or trusts.
