ANNEX B
“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.
For purposes of this Annex B, “United States” means the United States of America, its territories and possessions, any State of the United States,
and the District of Columbia.
“Non-U.S. qualified offeree”
means:
(1)
any legal entity in a Relevant Member State which is a qualified investor as defined in the Prospectus Directive;
(2)
legal entities in any Relevant Member State fewer in number than 150 natural or legal persons (other than qualified investors as defined in the
Prospectus Directive), as permitted under the Prospectus Directive;
(3)
any other legal entity in a Relevant Member State that in any other circumstances falls within Article 3(2) of the Prospectus Directive; and
(4)
any entity outside the United States and the European Economic Area to whom the offers related to the New Notes may be made in compliance with any
applicable laws and regulations
For the purposes of this paragraph, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD
Amending Directive) and includes any relevant implementing measure in each Relevant Member State and the expression “2010 PD Amending Directive”
means Directive 2010/73/EU and the expression “Relevant Member State” means each Member State of the European Economic Area which has implemented the
Prospectus Directive, with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State.
For purposes of the Exchange Offers, the following are deemed not to be “non-U.S. qualified offerees:”
(1)
any holder to whom the New Notes have been publicly offered, sold or advertised, directly or indirectly, in or from Switzerland;
(2)
any holder that is an Italian resident or person located in the Republic of Italy;
(3)
any holder in France, other than (i) persons providing investment services relating to portfolio management for the account of third parties and/or
(ii) qualified investors (investisseurs qualifiés) acting for their own account, all as defined in, and in accordance with, Articles L.411-1, L. 411 2
and D. 411-1 to D.411-3 of the Code monétaire et financier;
(4)
any holder in Germany that is not a qualified investor, as defined in the German Securities Prospectus Act (Wertpapierprospektgesetz);
(5)
any holder in the United Kingdom, unless such holder is either
(i) an investment professional within the meaning of Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
(the “Financial Promotion Order”) or
(ii) a high net worth entity as defined in the Financial Promotion Order or
(iii) another person to whom the offer may lawfully be communicated falling within Article 49(2)(a) to (e) of the Financial Promotion Order or Article 43
of the Financial Promotion Order;
(6)
any holder in Ireland that is not a “qualified investor”, as defined in the Irish Prospectus (Directive 2003/71/EC) Regulations 2005;
(7)
any holder in Norway that is not also registered as a professional investor (“profesjonell investor”) with the Oslo Stock Exchange;
(8)
any holder in Hong Kong that is not a “professional investor” within the meaning of the Securities and Futures Ordinance (Cap. 571,
Laws of Hong Kong) and any rules made thereunder;
(9)
any holder in Singapore that is not an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore.
ANNEX C
“Accredited Investor”
as defined under National Instrument 45-106 – Prospectus Exemptions
means:
(a)
except in Ontario, a Canadian financial institution, or a Schedule III
bank,
(b)
except in Ontario, the Business Development Bank of Canada incorporated under
the Business Development Bank of Canada Act (Canada),
(c)
except in Ontario, a subsidiary of any person referred to in paragraphs (a) or
(b), if the person owns all of the voting securities of the subsidiary, except
the voting securities required by law to be owned by directors of that
subsidiary,
(d)
except in Ontario, a person registered under the securities legislation of a
jurisdiction of Canada as an adviser or dealer,
(e)
an
individual registered under the securities legislation of a jurisdiction of
Canada as a representative of a person referred to in paragraph (d),
(e.1)
an individual formerly registered under the securities legislation of a
jurisdiction of Canada, other than an individual formerly registered solely as a
representative of a limited market dealer under one or both of the Securities
Act (Ontario) or the Securities Act (Newfoundland and Labrador),
(f)
except in Ontario, the Government of Canada or a jurisdiction of Canada, or any
crown corporation, agency or wholly owned entity of the Government of Canada or
a jurisdiction of Canada,
(g)
except in Ontario, a municipality, public board or commission in Canada and a
metropolitan community, school board, the Comité de gestion de la taxe scolaire de
l’île de Montréal or an intermunicipal management board in Québec,
(h)
except in Ontario, any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any agency of that
government,
(i)
except in Ontario, a pension fund that is regulated by the Office of the
Superintendent of Financial Institutions (Canada), a pension commission or
similar regulatory authority of a jurisdiction of Canada,
(j)
an
individual who, either alone or with a spouse, beneficially owns financial
assets having an aggregate realizable value that, before taxes but net of any
related liabilities, exceeds C$1,000,000,
(j.1) an individual who beneficially
owns financial assets having an aggregate realizable value that, before taxes
but net of any related liabilities, exceeds C$5,000,000,
(k)
an individual whose net income before
taxes exceeded C$200,000 in each of the 2 most recent calendar years or whose
net income before taxes combined with that of a spouse exceeded C$300,000 in
each of the 2 most recent calendar years and who, in either case, reasonably
expects to exceed that net income level in the current calendar year,
(l)
an
individual who, either alone or with a spouse, has net assets of at least
C$5,000,000,
(m)
a
person, other than an individual or investment fund, that has net assets of at
least C$5,000,000 as shown on its most recently prepared financial statements,
(n)
an
investment fund that distributes or has distributed its securities only to: (i)
a person that is or was an accredited investor at the time of the distribution,
(ii) a person that acquires or acquired securities in the circumstances referred
to in sections 2.10 (Minimum amount investment), or 2.19 (Additional
investment in investment funds), or (iii) a person described in paragraph
(i) or (ii) that acquires or acquired securities under section 2.18 (Investment
fund reinvestment),
(o)
an
investment fund that distributes or has distributed securities under a
prospectus in a jurisdiction of Canada for which the regulator or, in Québec,
the securities regulatory authority, has issued a receipt,
(p)
a
trust company or trust corporation registered or authorized to carry on business
under the Trust and Loan Companies Act (Canada) or under comparable
legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on
behalf of a fully managed account managed by the trust company or trust
corporation, as the case may be,
(q)
a
person acting on behalf of a fully managed account managed by that person, if
that person is registered or authorized to carry on business as an adviser or
the equivalent under the securities legislation of a jurisdiction of Canada or a
foreign jurisdiction,
(r)
a
registered charity under the Income Tax Act (Canada) that, in regard to
the trade, has obtained advice from an eligibility adviser or an adviser
registered under the securities legislation of the jurisdiction of the
registered charity to give advice on the securities being traded,
(s)
an
entity organized in a foreign jurisdiction that is analogous to any of the
entities referred to in paragraphs (a) to (d) or paragraph (i) in form and
function,
(t)
a
person in respect of which all of the owners of interests, direct, indirect or
beneficial, except the voting securities required by law to be owned by
directors, are persons that are accredited investors,
(u)
an
investment fund that is advised by a person registered as an adviser or a person
that is exempt from registration as an adviser,
(v)
a
person that is recognized or designated by the securities regulatory authority
or, except in Ontario and Québec, the regulator as an accredited investor; or
(w)
a
trust established by an accredited investor for the benefit of the accredited
investor’s family members of which a majority of the trustees are accredited
investors and all of the beneficiaries are the accredited investor’s spouse, a
former spouse of the accredited investor or a parent, grandparent, brother,
sister, child or grandchild of that accredited investor, of that accredited
investor’s spouse or of that accredited investor’s former spouse.
“accredited
investor” as defined in Section 73.3(1) of the Securities Act (Ontario)
means:
(a)
a
financial institution described in paragraph 1, 2 or 3 of subsection 73.1(1),
(b) the Business Development Bank of Canada,
(c)
a
subsidiary of any person or company referred to in clause (a) or (b), if the
person or company owns all of the voting securities of the subsidiary, except
the voting securities required by law to be owned by directors of that
subsidiary,
(d) a person or company registered under the
securities legislation of a province or territory of Canada as an adviser or
dealer, except as otherwise prescribed by the regulations,
(e)
the
Government of Canada, the government of a province or territory of Canada, or
any Crown corporation, agency or wholly owned entity of the Government of Canada
or of the government of a province or territory of Canada,
(f)
a
municipality, public board or commission in Canada and a metropolitan community,
school board, the Comité de gestion de
la taxe scolaire de l’Île de Montréal or an intermunicipal management
board in Quebec,
(g)
any
national, federal, state, provincial, territorial or municipal government of or
in any foreign jurisdiction, or any agency of that government,
(h)
a
pension fund that is regulated by either the Office of the Superintendent of
Financial Institutions (Canada) or a pension commission or similar regulatory
authority of a province or territory of Canada,
(i)
a person or company that is recognized or designated by the Commission as
an accredited investor,
(j)
such
other persons or companies as may be prescribed by the regulations.
“permitted
client” as defined under National Instrument 31-103 - Registration
Requirements, Exemptions And Ongoing Registrant Obligations means:
(a)
a
Canadian financial institution or a Schedule III bank;
(b)
the
Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada);
(c)
a
subsidiary of any person or company referred to in paragraph (a) or (b), if the
person or company owns all of the voting securities of the subsidiary, except
the voting securities required by law to be owned by directors of the
subsidiary,
(d)
a
person or company registered under the securities legislation of a jurisdiction
of Canada as an adviser, investment dealer, mutual fund dealer or exempt market
dealer;
(e)
a
pension fund that is regulated by either the federal Office of the
Superintendent of Financial Institutions or a pension commission or similar
regulatory authority of a jurisdiction of Canada or a wholly-owned subsidiary of
such a pension fund;
(f)
an
entity organized in a foreign jurisdiction that is analogous to any of the
entities referred to in paragraphs (a) to (e);
(g)
the
Government of Canada or a jurisdiction of Canada, or any Crown corporation,
agency or wholly-owned entity of the Government of Canada or a jurisdiction of
Canada;
(h)
any
national, federal, state, provincial, territorial or municipal government of or
in any foreign jurisdiction, or any agency of that government;
(i)
a
municipality, public board or commission in Canada and a metropolitan community,
school board, the Comité de gestion de
la taxe scolaire de l’île de Montréal or an intermunicipal management
board in Québec;
(j)
a
trust company or trust corporation registered or authorized to carry on business
under the Trust and Loan Companies Act (Canada) or under comparable
legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on
behalf of a managed account managed by the trust company or trust corporation,
as the case may be;
(k)
a
person or company acting on behalf of a managed account managed by the person or
company, if the person or company is registered or authorized to carry on
business as an adviser or the equivalent under the securities legislation of a
jurisdiction of Canada or a foreign jurisdiction;
(l)
an
investment fund if one or both of the following apply: (i) the fund is managed
by a person or company registered as an investment fund manager under the
securities legislation of a jurisdiction of Canada; (ii) the fund is advised by
a person or company authorized to act as an adviser under the securities
legislation of a jurisdiction of Canada;
(m)
in respect of a dealer, a registered
charity under the Income Tax Act (Canada) that obtains advice on the
securities to be traded from an eligibility adviser, as defined in section 1.1
of National Instrument 45-106 - Prospectus Exemptions, or an adviser
registered under the securities legislation of the jurisdiction of the
registered charity;
(n)
in
respect of an adviser, a registered charity under the Income Tax Act (Canada)
that is advised by an eligibility adviser, as defined in section 1.1 of National
Instrument 45-106 Prospectus Exemptions, or an adviser registered under
the securities legislation of the jurisdiction of the registered charity;
(o)
an
individual who beneficially owns financial assets, as defined in section 1.1 of
National Instrument 45-106 Prospectus Exemptions, having an aggregate
realizable value that, before taxes but net of any related liabilities, exceeds
C$5 million;
(p)
a
person or company that is entirely owned by an individual or individuals
referred to in paragraph (o), who holds the beneficial ownership interest in the
person or company directly or through a trust, the trustee of which is a trust
company or trust corporation registered or authorized to carry on business under
the Trust and Loan Companies Act (Canada) or under comparable legislation
in a jurisdiction of Canada or a foreign jurisdiction;
(q)
a
person or company, other than an individual or an investment fund, that has net
assets of at least C$25 million as shown on its most recently prepared financial
statements;
(r)
a
person or company that distributes securities of its own issue in Canada only to
persons or companies referred to in paragraphs (a) to (q).
