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 (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 or any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act;
(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, 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, limited liability company, or Massachusetts or similar business trust; and
(i)
Any investment adviser registered under the Investment
Advisers Act; and
(j)
Any institutional accredited investors, as defined in Rule 501(a) under the Securities Act, of a type not listed above or below, including those
entities formed for the purpose of acquiring the securities being offered;
(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 (as defined below) 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 the aggregate at least US$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 US$100 million in securities of issuers that are
not affiliated with it and that has an audited net worth of at least US$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 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.
* * * * * *
“accredited investor” has the meaning as set forth in Rule 501 of the Securities Act, pursuant to provisions (a)(1),
(a)(2), (a)(3) and (a)(7), as set forth below:
(a)(1)
Any bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to Section 15 of the Exchange Act;
any insurance company as defined in Section 2(a)(13) of the Securities Act; any investment company registered under the Investment Company Act or
a business development company as defined in Section 2(a)(48) of that Act; 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; 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, if such plan has total assets
in excess of $5,000,000; any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company,
or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
(a)(2)
Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act;
(a)(3)
Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(a)(7)
Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the Securities Act.
“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.
The following are not “U.S.
persons”:
(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 and the United Kingdom:
(a) any legal entity which is a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, or superseded) (the “Prospectus Regulation”); or
(b) any other entity in any other circumstances falling within Article 1(4) of the Prospectus Regulation, provided that no offer of Cumulus or Cumulus
subsidiary debt securities shall require Cumulus, Cumulus subsidiaries or any other person to publish a prospectus pursuant to Article 3 of the
Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation;
(2)
in relation to the European Economic Area and the United Kingdom, not a “retail investor.” For these purposes, a “retail investor”
means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”);
or (ii) a customer within the meaning of Directive 2016/97/EU, where that customer would not qualify as a professional client as defined in point (10)
of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the Prospectus Regulation;
(3)
in relation to the United Kingdom, in addition to (a) and (b) above, qualified investors (as defined in the Prospectus Regulation)
(i) 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 “Financial Promotion Order”), (ii) who are persons falling within Article 49(2)(a)
to (d) (high net worth companies, unincorporated associations, etc.) of the Financial Promotion Order, or (iii) are persons to whom an invitation or
inducement to engage in investment activity within the meaning of Section 21 of the Financial Services and Markets Act 2000 in connection with the
issue or sale of any securities may otherwise lawfully be communicated or cause to be communicated; or
(4) any entity outside the United States, the United Kingdom and the European Economic Area to whom the offers related to the Notes may be made in
compliance with all other applicable laws and regulations of any applicable jurisdiction (including, without limitation, the laws and regulations of
Canada and its provinces).
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