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 U.S.
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;
(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 U.S. 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 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 for 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.
ANNEX B
(1)
“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.
(2)
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.
ANNEX C
(all underlined terms in
this Annex C have the meaning
ascribed to them under the relevant Canadian securities legislation)
For residents of Canada, “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 or formerly 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 Comité de gestion de la taxe scolaire de l'île de
Montréal or an intermunicipal management board in Québec;
(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 either the Office of the
Superintendent of Financial Institutions (Canada) or a pension commission or
similar regulatory authority of a jurisdiction of Canada;
(j)
[paragraph (j) of the definition of
“accredited investor” has been intentionally omitted
for purposes of this offering];
(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)
[paragraph (k) of the definition of
“accredited investor” has been intentionally omitted
for purposes of this offering];
(l)
[paragraph (l) of the definition of
“accredited investor” has been intentionally omitted
for purposes of this offering];
(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
and that has not been created or used solely to purchase or hold securities as
an accredited investor as defined in this paragraph (m);
(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 exemption] of NI 45-106,
or 2.19 [additional investment in investment funds exemption] of NI 45-106, or
(iii)
a person described in paragraph (i) or (ii) that acquires or
acquired securities under section 2.18 [investment fund reinvestment exemption]
of NI 45-106;
(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.
ANNEX D
(all underlined terms in this Annex D have the meaning ascribed to them
under the relevant Canadian securities legislation)
“Permitted Client” 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 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 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 a 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, 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, or an adviser registered under the securities
legislation of the jurisdiction of the registered charity;
(o)
an individual who beneficially owns financial assets having an
aggregate realizable value that, before taxes but net of ay related liabilities,
exceeds C$5,000,000;
(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 investment
fund, that has net assets of at least C$25,000,000 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).
