“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 (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 clauses (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,
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 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.
“Eligible Holder” means:
(1)
a
“Qualified Institutional Buyer” as that term is defined herein;
or
(2)
a
non-“U.S. Person” as that term is defined
herein.
“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;