ANNEX A
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 U.S. Securities Act of 1933, as amended (the Securities Act);
(b)
Any investment company registered under the Investment Company Act of 1940, as amended (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;
(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 (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 (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 of qualified institutional buyer:
(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 this section.
(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.
None of the following is a U.S. person:
(1) Any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States;
(2) Any
estate of which any professional fiduciary acting as executor or administrator
is a U.S. person if:
(a) An executor or administrator
of the estate who is not a U.S. person has sole or shared investment discretion
with respect to the assets of the estate; and
(b) The estate is governed by
foreign law;
(3) Any
trust of which any professional fiduciary acting as trustee is a U.S. person,
if a trustee who is not a U.S. person has sole or shared investment discretion
with respect to the trust assets, and no beneficiary of the trust (and no
settlor if the trust is revocable) is a U.S. person;
(4) An
employee benefit plan established and administered in accordance with the law
of a country other than the United States and customary practices and
documentation of such country;
(5) Any
agency or branch of a U.S. person located outside the United States if:
(a)
The agency or branch operates for valid business reasons; and
(b)
The agency or branch is engaged in the business of insurance
or banking and is subject to substantive insurance or banking regulation,
respectively, in the jurisdiction where located; and
(6) The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations, and their agencies,
affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans.
Non-U.S. qualified offeree means:
(1)
In relation to each Member State of the European Economic Area (each, a Relevant Member State) which has implemented Directive 2003/71/EC
(as amended, including by Directive 2010/73/EU and including any relevant implementing measure in a Relevant Member State, the Prospectus Directive),
with effect from and including the date on which
the Prospectus Directive is implemented in that Relevant Member State, any legal entity which is a Qualified Investor as defined in the Prospectus Directive; or
(2)
Any entity or person outside the United States 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, other than an entity or person resident in any Restricted Jurisdiction, provided that a discretionary
account held for the benefit or account of a person or company resident in Canada by an investment manager or a similar fiduciary outside
Canada is not a resident of Canada for this purpose.
For purposes of the foregoing definition of non-U.S. qualified offeree:
(1)
Qualified Investor means a qualified investor as defined in the Prospective Directive, and includes:
(a)
persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive 2004/39/EC of the European Parliament and of the Council of April 21,
2004 on markets in financial instruments; and
(b)
persons or entities who are, on request, treated as professional clients in accordance with Annex II to Directive 2004/39/EC,
or recognized as eligible counterparties in accordance with Article 24 of Directive 2004/39/EC unless they have requested that they be treated as non-professional clients.
(2) Restricted Jurisdiction
means each of Angola, Bahamas, Bahrain, Canada, Colombia, Curaηao, Gibraltar, Lebanon, Liechtenstein, the Peoples Republic of China and the Russian Federation.
