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 of 1933, as amended (the “Securities Act”);
Note: A purchase by an insurance company for one or more of its separate accounts, as defined by Section 2(a)(37) of the Investment Company Act of 1940
(the “Investment Company Act”), which are neither registered under Section 8 of the Investment Company Act nor required to be so registered, shall be deemed to be
a purchase for the account of such insurance company.
(b)
Any investment company registered under 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, 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, or Massachusetts or
similar business trust; and
(i) Any
investment adviser registered under the Investment Advisers Act; and
(j) Any institutional accredited investor, as defined in rule 501(a) under the Act (17 CFR 230.501(a)), of a type not listed in paragraphs (1)(a) through (i)
above or paragraphs (2) through (6) below.
(ii) Any dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934 (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;
(iii)
Any dealer registered pursuant to Section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a qualified institutional buyer;
Note: A registered dealer may act as agent, on a non-discretionary basis, in a transaction with a qualified institutional buyer without itself having to
be a qualified institutional buyer.
(iv)
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, for purposes of this
section:
(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);
(v) 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
(vi) 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.
(2)
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.
(3)
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.
(4)
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.
(5)
For purposes of this section, “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.
(6)
For purposes of this section, “effective conversion premium” means the amount, expressed as a percentage of the security’s conversion value, by which the price
at issuance of a convertible security exceeds its conversion value.
(7)
For purposes of this section, “effective exercise premium” means the amount, expressed as a percentage of the warrant’s exercise value, by which the sum of the
price at issuance and the exercise price of a warrant exceeds its exercise value.
ANNEX B
“U.S. person” means:
(i) Any
natural person resident in the United States;
(ii) Any
partnership or corporation organized or incorporated under the laws of the United
States;
(iii) Any
estate of which any executor or administrator is a U.S. person;
(iv) Any
trust of which any trustee is a U.S. person;
(v) Any
agency or branch of a foreign entity located in the United States;
(vi) 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;
(vii) 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
(viii) 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 of 1933, as amended (the “Securities Act”),
unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) promulgated under the Securities Act) who are not natural
persons, estates or trusts.
The following are not “U.S.
persons”:
(i) 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;
(ii) 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;
(iii)
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;
(iv)
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;
(v)
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
(vi)
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
“Qualified investors” means persons or entities that are described in points (1)
to (4) of Section I of Annex II to Directive 2014/65/EU of the European
Parliament and of the Council of 15 May 2014 on markets in financial instruments
and amending Directive 2002/92/EC and Directive 2011/61/EU (“MiFID II”), and
persons or entities who are, on request, treated as professional clients in
accordance with Annex II to 2014/65/EU, or recognised as eligible counterparties
in accordance with Article 30 of 2014/65/EU unless they have entered into an
agreement to be treated as non-professional clients in accordance with the
fourth paragraph of Section I of that Annex II. Investment firms and credit
institutions shall communicate their classification on request to the issuer
without prejudice to the relevant legislation on data protection.
“Retail client” means a client who is not a professional client; and
“Professional client” means a client meeting the criteria laid down in Annex II
to MiFID II, as set forth below.
ANNEX II TO MiFID II
PROFESSIONAL CLIENTS FOR THE PURPOSE OF THIS DIRECTIVE
Professional client is a client who possesses the experience, knowledge and
expertise to make its own investment decisions and properly assess the risks
that it incurs. In order to be considered a professional client, the client must
comply with the following criteria:
I.
CATEGORIES OF CLIENTS WHO
ARE CONSIDERED TO BE PROFESSIONALS
The following shall all be regarded as professionals in all investment services
and activities and financial instruments for the purposes of the Directive.
(1)
Entities which are required
to be authorised or regulated to operate in the financial markets. The list
below shall be understood as including all authorised entities carrying out the
characteristic activities of the entities mentioned: entities authorised by a
Member State under a Directive, entities authorised or regulated by a Member
State without reference to a Directive, and entities authorised or regulated by
a third country:
(a)
Credit institutions;
(b)
Investment firms;
(c)
Other authorised or
regulated financial institutions;
(d)
Insurance companies;
(e)
Collective investment
schemes and management companies of such schemes;
(f)
Pension funds and
management companies of such funds;
(g)
Commodity and commodity
derivatives dealers;
(h)
Locals;
(i)
Other institutional
investors;
(2)
Large undertakings meeting
two of the following size requirements on a company basis:
balance sheet
total: EUR 20 000 000
net turnover:
EUR 40 000 000
own funds: EUR
2 000 000
(3)
National and regional
governments, including public bodies that manage public debt at national or
regional level, Central Banks, international and supranational institutions such
as the World Bank, the IMF, the ECB, the EIB and other similar international
organisations.
(4)
Other institutional
investors whose main activity is to invest in financial instruments, including
entities dedicated to the securitisation of assets or other financing
transactions.
The entities referred to above are considered to be professionals. They must
however be allowed to request non-professional treatment and investment firms
may agree to provide a higher level of protection. Where the client of an
investment firm is an undertaking referred to above, the investment firm must
inform it prior to any provision of services that, on the basis of the
information available to the investment firm, the client is deemed to be a
professional client, and will be treated as such unless the investment firm and
the client agree otherwise. The investment firm must also inform the customer
that he can request a variation of the terms of the agreement in order to secure
a higher degree of protection.
It is the responsibility of the client, considered to be a professional client,
to ask for a higher level of protection when it deems it is unable to properly
assess or manage the risks involved.
This higher level of protection will be provided when a client who is considered
to be a professional enters into a written agreement with the investment firm to
the effect that it shall not be treated as a professional for the purposes of
the applicable conduct of business regime. Such agreement shall specify whether
this applies to one or more particular services or transactions, or to one or
more types of product or transaction.
II.
CLIENTS WHO MAY BE TREATED
AS PROFESSIONALS ON REQUEST
II.1.
Identification criteria
Clients other than those mentioned in section I, including public sector bodies,
local public authorities, municipalities and private individual investors, may
also be allowed to waive some of the protections afforded by the conduct of
business rules.
Investment firms shall therefore be allowed to treat any of those clients as
professionals provided the relevant criteria and procedure mentioned below are
fulfilled. Those clients shall not, however, be presumed to possess market
knowledge and experience comparable to that of the categories listed in Section
I.
Any such waiver of the protection afforded by the standard conduct of business
regime shall be considered to be valid only if an adequate assessment of the
expertise, experience and knowledge of the client, undertaken by the investment
firm, gives reasonable assurance, in light of the nature of the transactions or
services envisaged, that the client is capable of making investment decisions
and understanding the risks involved.
The fitness test applied to managers and directors of entities licensed under
Directives in the financial field could be regarded as an example of the
assessment of expertise and knowledge. In the case of small entities, the person
subject to that assessment shall be the person authorised to carry out
transactions on behalf of the entity.
In the course of that assessment, as a minimum, two of the following criteria
shall be satisfied:
the client has carried out transactions, in significant size, on the relevant
market at an average frequency of 10 per quarter over the previous four
quarters,
the size of the client’s financial instrument portfolio, defined as including
cash deposits and financial instruments exceeds EUR 500 000,
the client works or has worked in the financial sector for at least one year in
a professional position, which requires knowledge of the transactions or
services envisaged.
Member States may adopt specific criteria for the assessment of the expertise
and knowledge of municipalities and local public authorities requesting to be
treated as professional clients. Those criteria can be alternative or additional
to those listed in the fifth paragraph.
II.2.
Procedure
Those clients may waive the benefit of the detailed rules of conduct only where
the following procedure is followed:
they must state in writing to the investment firm that they wish to be treated
as a professional client, either generally or in respect of a particular
investment service or transaction, or type of transaction or product,
the investment firm must give them a clear written warning of the protections
and investor compensation rights they may lose,
they must state in writing, in a separate document from the contract, that they
are aware of the consequences of losing such protections.
Before deciding to accept any request for waiver, investment firms must be
required to take all reasonable steps to ensure that the client requesting to be
treated as a professional client meets the relevant requirements stated in
Section II.1.
However, if clients have already been categorised as professionals under
parameters and procedures similar to those referred to above, it is not intended
that their relationships with investment firms shall be affected by any new
rules adopted pursuant to this Annex.
Firms must implement appropriate written internal policies and procedures to
categorise clients. Professional clients are responsible for keeping the
investment firm informed about any change, which could affect their current
categorisation. Should the investment firm become aware however that the client
no longer fulfils the initial conditions, which made him eligible for a
professional treatment, the investment firm shall take appropriate action.
ANNEX D
Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
Person who has professional experience:
Article 19(5): “Investment professionals” means—
(a)
an authorised person;
(b)
an exempt person where the communication relates to a
controlled activity which is a regulated activity in relation to which the
person is exempt;
(c)
any other person—
(i)
whose ordinary activities involve him in carrying on the
controlled activity to which the communication relates for the purpose of a
business carried on by him; or
(ii)
who it is reasonable to expect will carry on such
activity for the purposes of a business carried on by him;
(d)
a government, local authority (whether in the United
Kingdom or elsewhere) or an international organisation;
(e)
a person (“A”) who is a director, officer or employee of
a person (“B”) falling within any of sub-paragraphs (a) to (d) where the
communication is made to A in that capacity and where A's responsibilities when
acting in that capacity involve him in the carrying on by B of controlled
activities.
High net worth entity:
Article 49(2)(a)-(d): This paragraph applies to—
(a)
any body corporate which has, or which is a member of
the same group as an undertaking which has, a called-up share capital or net
assets of not less than—
(i)
(i)if the body corporate has more than 20 members or is
a subsidiary undertaking of an undertaking which has more than 20 members,
£500,000;
(ii)
otherwise, £5 million;
(b)
any unincorporated association or partnership which has
net assets of not less than £5 million;
(c)
the trustee of a high value trust;
(d)
any person (“A”) whilst acting in the capacity of
director, officer or employee of a person (“B”) falling within any of
sub-paragraphs (a) to (c) where A's responsibilities, when acting in that
capacity, involve him in B's engaging in investment activity;
CANADIAN ACCREDITED INVESTOR
AND PERMITTED CLIENT DEFINITIONS
Accredited Investor
For the purposes of Canadian securities laws, “accredited investor” 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 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)
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)
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)
a municipality, public board or commission in Canada and
a metropolitan community, school board, the Comite de gestion de la taxe
scolaire de l’lle de Montreal or an intermunicipal management board in Quebec,
(h)
any national, federal, state, provincial, territorial or
municipal government of or in any foreign jurisdiction, or any agency of that
government,
(i)
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 CAD$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
CAD$5,000,000,
(k)
an individual whose net income before taxes exceeded
CAD$200,000 in each of the 2 most recent calendar years or whose net income
before taxes combined with that of a spouse exceeded CAD$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 CAD$5,000,000,
(m)
a person, other than an individual or investment fund,
that has net assets of at least CAD$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 Quebec, 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 Quebec, the regulator
as an accredited investor; and
(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.
Permitted Client
Under NI 31-103, “permitted client” means any of:
(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 Comite de gestion de la taxe
scolaire de l’lle de Montreal or an intermunicipal management board in Quebec;
(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 CAD$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 CAD$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);
Where:
“bank” means a bank named in Schedule I or II of the Bank Act
(Canada);
“Canadian financial institution” means:
(a)
an association governed by the Cooperative Credit
Associations Act (Canada) or a central cooperative credit society for which an
order has been made under section 473(1) of that Act; or
(b)
a bank, loan corporation, trust company, trust
corporation, insurance company, treasury branch, credit union, caisse populaire,
financial services cooperative, or league that, in each case, is authorized by
an enactment of Canada or a jurisdiction of Canada to carry on business in
Canada or a jurisdiction of Canada;
“director” means (a) a member of the board of directors of a company or
an individual who performs similar functions for a company, and (b) with respect
to a person that is not a company, an individual who performs functions similar
to those of a director of a company;
“eligibility adviser” means:
(a)
a person that is registered as an investment dealer and
authorized to give advice with respect to the type of security being
distributed; and
(b)
in Saskatchewan or Manitoba, also means a lawyer who is
a practicing member in good standing with a law society of a jurisdiction of
Canada or a public accountant who is a member in good standing of an institute
or association of chartered accountants, certified general accountants or
certified management accountants in a jurisdiction of Canada provided that the
lawyer or public accountant must not:
(i)
have a professional, business or personal relationship with the issuer, or any
of its directors, executive officers, founders, or control persons; and
(ii)
have acted for or been retained personally or otherwise as an employee,
executive officer, director, associate or partner of a person that has acted for
or been retained by the issuer or any of its directors, executive officers,
founders or control persons within the previous 12 months;
“financial assets” means:
(a)
cash;
(b)
securities; or
(c)
a contract of
insurance, a deposit or an evidence of a deposit that is not a security for the
purposes of securities legislation;
“foreign jurisdiction” means a country other than Canada or a political
subdivision of a country other than Canada;
“fully managed account” means an account of a client for which a person
makes the investment decisions if that person has full discretion to trade in
securities for the account without requiring the client’s express consent to a
transaction;
“investment fund” has the same meaning as in National Instrument 81-106—Investment
Fund Continuous Disclosure;
“jurisdiction” means a province or territory of Canada except when used
in the term “foreign jurisdiction”;
“local jurisdiction” means, in a national instrument adopted or made by a
Canadian Securities regulatory authority, the jurisdiction in which the Canadian
securities regulatory is situated;
“person” includes (a) an individual, (b) a corporation, (c) a
partnership, trust, fund and an association, syndicate, organization or other
organized group of persons, whether incorporated or not, and (d) an individual
or other person in that person’s capacity as a trustee, executor, administrator
or personal or other legal representative;
“regulator” means, for the local jurisdiction, the person referred to in
Appendix D of National Instrument 14-101—Definitions;
“related liabilities” means:
(a)
liabilities incurred or assumed for the purpose of
financing the acquisition or ownership of financial assets; or
(b)
liabilities that are secured by financial assets;
“Schedule III bank” means an authorized foreign bank named in Schedule
III of the Bank Act (Canada);
“securities legislation” means, for the local jurisdiction, the statute
and other instruments listed in Appendix B of National Instrument 14-101—Definitions;
“securities regulatory authority” means, for the local jurisdiction, the
securities commission or similar regulatory authority listed in Appendix C of
National Instrument 14-101—Definitions;
“spouse” means, an individual who:
(a)
is married to another individual and is not living
separate and apart within the meaning of the Divorce Act (Canada), from
the other individual;
(b)
is living with another individual in a marriage-like
relationship, including a marriage-like relationship between individuals of the
same gender; or
(c)
in Alberta, is an individual referred to in paragraph
(a) or (b), or is an adult interdependent partner within the meaning of the
Adult Interdependent Relationships Act (Alberta);
“subsidiary” means an issuer that is controlled directly or indirectly by
another issuer and includes a subsidiary of that subsidiary; and
“voting security” means a security of an issuer that is not a debt
security carrying a voting right either under all circumstances or under some
circumstances that have occurred and are continuing.
An issuer is considered to be affiliated with another issuer if:
(a)
one of them is the subsidiary of the other; or
(b)
each of them is controlled by the same person.
A person is considered to beneficially own securities that:
(a)
for the purposes of Saskatchewan, British Columbia, Nova
Scotia, Newfoundland and Labrador, and Prince Edward Island securities law, are
beneficially owned by:
(i)
an entity controlled by that person; or
(ii)
an affiliate of that person or an affiliate of an entity controlled by that
person.
(b)
for the purposes of Alberta securities law, are
beneficially owned by:
(i)
a company controlled by that person or an affiliate of that company;
(ii)
an affiliate of that person; or
(iii)
through a trustee, legal representative, agent or other intermediary of that
person.
(c)
for the purposes of Ontario, Manitoba and New Brunswick
securities law, are beneficially owned by
(i)
an entity controlled by the person or by an affiliate of such entity; or
(ii)
an affiliate of that person;
A person (first person) is considered to control another person (second person)
if:
(a)
the first person, directly or indirectly, beneficially
owns or exercises control or direction over securities of the second person
carrying votes which, if exercised, would entitle the first person to elect a
majority of the directors of the second person, unless that first person holds
the voting securities only to secure an obligation;
(b)
the second person is a partnership, other than a limited
partnership, and the first person holds more than 50% of the interests of the
partnership; or
(c)
the second person is a limited partnership and the
general partner of the limited partnership is the first person.
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