“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 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 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 paragraphs (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, 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;
(i)
Any investment adviser registered under the Investment
Advisers Act; and
(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 U.S.$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 the aggregate at least U.S.$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, for purposes of this
subparagraph:
(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:
(7) 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.
(8) 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.
(9) 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.
(10) “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.
* * * * * *
“Non-U.S. Qualified Offeree” means:
(1) In relation to each Member State of the European Economic Area (the “EEA”), a person that is 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 (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 (iii) not a qualified investor as
defined in Regulation (EU) 2017/1129 (as amended the “Prospectus Regulation”). Consequently, no key information document required by Regulation (EU) No 1286/2014
(as amended, the “PRIIPs Regulation”) for offering or selling the New Notes or otherwise making them available to retail investors in the EEA,
has been prepared
and therefore offering the New Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
(2) in relation to the United Kingdom,
(i)
a person that is not a retail investor in the United Kingdom (“UK”). For these purposes, a retail investor means a person who is one (or more) of:
(i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union
(Withdrawal) Act 2018 (“EUWA”); or
(ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (as amended, the “FSMA”) and any rules or
regulations made under the FSMA to implement the Insurance Distribution Directive (EU), where that customer would not qualify as a professional client, as
defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA, or
(iii) not a qualified investor as defined in Article 2 of Regulation (EU) No 2017/1129 as it forms part of domestic law by virtue of the EUWA
(the “UK Prospectus Regulation”). Consequently, no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic
law by virtue of the EUWA (the “UK PRIIPs Regulation”) for offering or selling the New Notes or otherwise making them available to retail
investors in the United Kingdom has been prepared and therefore offering or selling the New Notes or otherwise making them available to any retail investor in
the United Kingdom may be unlawful under the UK PRIIPs Regulation.
(ii)
persons who are “qualified investors” (as defined in the UK Prospectus Regulation) who are
(i) persons having a 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”), (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 an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) in connection with the issue
or sale of any New Notes may otherwise lawfully be communicated or caused to be communicated (all such persons together being referred to as “relevant persons”).
(3) any entity outside the U.S., the EEA and the United Kingdom 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.
