“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
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, 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 (the “Investment Advisers Act”);
(h)
Any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, 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
(j)
Any institutional accredited investor, as defined in Rule 501(a) under the Securities Act, of a type not listed in paragraphs (1)(a) through (i) or paragraphs (2) through (6).
(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 $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
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.
* * * * * *
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.
* * * * * *
“United States” means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.
* * * * * *
“Retail Investor” means a person who is one (or more) of the following:
(1)
a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
(2)
a customer within the meaning of the Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article
4(1) of MiFID II; or
(3) not a qualified investor as defined in Regulation (EU) 2017/1129.
* * * * * *
“Relevant Person” means a person:
(1)
who has professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (the “Order”); or
(2)
who fall within Article 49(2)(a) to (d) (high net worth companies, unincorporated associations, etc.) of the Order; or
(3)
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 certain transactions with respect to the Notes may otherwise lawfully be communicated or caused to be communicated.
