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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 Securities Act;
(B) Any
investment company registered under the Investment Company Act of 1940 (as
amended from time to time, 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 (as amended from time to time, 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, 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, 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 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 the foregoing
definition.
(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) For purposes
of the foregoing definition, “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.
An institutional “accredited
investor” means:
(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 Securities Exchange
Act of 1934; any insurance company as defined in section 2(a)(13) of the
Securities Act; any investment company registered under the Investment Company
Act of 1940 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;
(2) Any private
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940;
(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;
(4) 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); or
(5) Any entity in
which all of the equity owners are accredited investors (within the meaning of
Rule 501).
ANNEX B
“U.S. person” means:
(a) Any
natural person resident in the United States;
(b) Any
partnership or corporation organized or incorporated under the laws of the United
States;
(c) Any
estate of which any executor or administrator is a U.S. person;
(d) Any
trust of which any trustee is a U.S. person;
(e) Any
agency or branch of a foreign entity located in the United States;
(f) 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;
(g) 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
(h) Any
partnership or corporation if:
(i) Organized or incorporated under the laws of any foreign
jurisdiction; and
(ii) 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”:
(a) 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;
(b) Any
estate of which any professional fiduciary acting as executor or administrator
is a U.S. person if:
(i) 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
(ii) The estate is governed by
foreign law;
(c) 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;
(d) 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;
(e) Any
agency or branch of a U.S. person located outside the United States if:
(i) The agency or branch operates for valid business reasons; and
(ii) 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
(f) 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.
ANNEX C
“Non-U.S. qualified offeree”
means:
(i) any legal
entity in a Relevant Member State which is a qualified investor as defined in
the Prospectus Directive;
(ii) legal
entities in any Relevant Member State that have fewer than 100 or, if the
Relevant Member State has implemented the relevant provision of the 2010 PD
Amending Directive, 150, natural or legal persons (other than qualified
investors as defined in the Prospectus Directive), as permitted under the
Prospectus Directive, subject to obtaining the prior consent of the Dealer
Manager;
(iii) any other
legal entity in a Relevant Member State that in any other circumstances falls
within Article 3(2) of the Prospectus Directive; and
(iv) any entity
outside the United States and the European Economic Area to whom the offer
related to the TRP 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,
to the extent implemented in the Relevant Member State) 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 this letter, the following are deemed not to be “non-U.S.
qualified offerees”:
(I) any holder
of APL Notes to whom the TRP Notes have been publicly offered, sold or
advertised, directly or indirectly, in or from Switzerland;
(II) any holder
of APL Notes that is an Italian resident or person located in the Republic of
Italy, other than qualified investors (investitori qualificati), as defined
pursuant to Article 100 of article 101-bis, paragraph 3-bis of the Legislative
Decree No. 58 of 24 February 1998, as amended and Article 34-ter, paragraph 1,
letter b) of article 35-bis, paragraph 3 of the Commissione Nazionale per le
Società e la Borsa Regulation No. 11971 of 14 May 1999, as amended;
(III) any holder of APL Notes in France, other than (i)
persons providing investment services relating to portfolio management for the
account of third parties and/or (ii) a qualified investor (investisseurs
qualifiés) acting for its own account, all as defined in Articles L.411-1,
L.411-2 and D.4111 to D.411-3 of the Code monétaire et financier;
(IV) any holder of APL
Notes in Germany that is not a qualified investor, as defined in the German
Securities Prospectus Act (Wertpapierprospektgesetz);
(V) any holder of APL
Notes 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 Exchange 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;
(VI) any holder of APL Notes in Ireland that is not a “qualified
investor,” as defined in the Irish Prospectus (Directive 2003/71/EC)
Regulations 2005; and
(VII) any holder of APL Notes in Norway that is not also
registered as a professional investor with the Oslo Stock Exchange.
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