No action has been or will be taken by the Issuers or the Guarantors or the Directors of any of the foregoing that would permit a public offering of the Securities or possession or distribution of any offering material in relation to the Securities in any jurisdiction outside the UK where action for that purpose is required. No offers or sales of any Securities, or distribution of any offering material relating to the Securities, may be made in or from any jurisdiction except in circumstances which will result in compliance with any applicable laws and regulations and will not impose any additional obligation on the Issuers or the Guarantors.
The United States
The Securities have not been and will not be registered under the Securities Act. Trading in the Securities has not been and will not be approved on an exchange or board of trade or otherwise by the United States Commodity Futures Trading Commission under the United States Commodity Exchange Act. The Securities may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons at any time. The Issuer will not offer or sell the Securities at any time within the United States or to, or for the account or benefit of, U.S. persons, and it will send to each person to which it sells Securities at any time a confirmation or other notice setting forth the restrictions on offers and sales of the Securities in the United States or to, or for the account or benefit of, U.S. persons. Each person who enters into a subscription agreement in relation to the Securities with the Issuer will agree, with respect to the Tranche of Securities being purchased by it, that it will not offer, or sell the Securities within the United States or to, or for the account or benefit of, U.S. persons, and it will have sent to each person to which it sells any Securities a confirmation or other notice setting forth the restrictions on offers and sales of the Securities within the United States or to, or for the account or benefit of, U.S. persons. In addition the Securities will be exercisable by the holder only upon certification as to non-U.S. beneficial ownership. As used in this paragraph "United States" means the United States of America, its territories or possessions, any state of the United States, the District of Columbia or any other enclave of the United States government, its agencies or instrumentalities, and "U.S. person" means (i) any person who is a U.S. person as defined in Regulation S under the Securities Act or (ii) any person or entity other than one of the following:
(i) a natural person who is not a resident of the United States;
(ii) a partnership, corporation or other entity, other than an entity organised principally for passive investment, organised under the laws of a jurisdiction other than the United States and which has its principal place of business in a jurisdiction other than the United States;
(iii) an estate or trust, the income of which is not subject to United States income tax regardless of source;
(iv) an entity organised principally for passive investment such as a pool, investment company or other similar entity, provided that units of participation in the entity held by U.S. persons represent in the aggregate less than 10% of the beneficial interest in the entity, and that such entity was not formed principally for the purpose of facilitating investment by U.S. persons; or
(v) a pension plan for the employees, officers or principals of an entity organised and with its principal place of business outside the United States.
In addition, each purchaser (or transferee) and any person directing such purchase (or transfer) will represent and warrant, or will be deemed to have represented and warranted by purchasing or otherwise holding a Security that on each day from the date on which the purchaser (or transferee) acquires the Security through and including the date on which the purchaser (or transferee) disposes of its interest in the Security, that the purchaser (or transferee) is not an "employee benefit plan" within the meaning of UK/1001958/13 - 95 - 243311/70-40108501 Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to Section 406 of the ERISA, a "plan" subject to Section 4975(e)(1) of the U.S. Internal Revenue Code of 1986 (the "Code"), a person or entity the assets of which include the assets of any such "employee benefit plan" or "plan," or a governmental plan that is subject to any law or regulation that is similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
European Economic Area
No offer of the Securities may be made to any person in any member state of the European Union which has implemented the Prospectus Directive (each a "Relevant Member State") with effect from and including the date on which the Prospectus Directive is implemented in that Member State (the "Relevant Implementation Date"), except that, with effect from the Relevant Implementation Date, an offer of the Securities may be made:
(i) in the period beginning on the date of publication of a prospectus in relation to those Securities and ending on the date which is 12 months after the date of such publication provided that:
(a) such prospectus has been approved by the competent authority of the Relevant Member State in accordance with the Prospectus Directive and any relevant implementing measures; or
(b) where the competent authority of a member state other than the Relevant Member State has approved a prospectus in relation to those Securities in accordance with the Prospectus Directive and any relevant implementing measures, such prospectus has been duly notified to the competent authority of the Relevant Member State in accordance with Article 18 of the Prospectus Directive and any relevant implementing measures; and
(ii) at any time:
(a) to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to a legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of at least EUR 43 million; and (3) an annual net turnover of at least EUR 50 million, as shown in its last annual or consolidated accounts; or
(c) otherwise in circumstances which do not require the publication of a prospectus pursuant to Article 3 of the Prospectus Directive and any relevant implementing measures.
For the purposes of this provision, the expression an "offer of the Securities" in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that Member State.
United Kingdom
Each Issuer and each Guarantor has represented and agreed that it has only communicated and caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the securities in circumstances in which section 21(1) of the FSMA does not apply to the Issuers or the Guarantors and that it has complied and will comply with all applicable provisions of the FSMA with UK/1001958/13 - 96 - 243311/70-40108501 respect to anything done by it in relation to the Securities from or otherwise involving the United Kingdom.
France
Each Issuer and each Guarantor has represented and agreed that:
(a) Offer to the public in France: it has only made and will only make an offer of Securities to the public (appel public à l'épargne) in France in the period beginning (i) when a prospectus in relation to those Securities has been approved by the Autorité des marchés financiers ("AMF"), on the date of such publication or, (ii) when a prospectus has been approved by the competent authority of another Member State of the European Economic Area which has implemented the EU Prospectus Directive 2003/71/EC, on the date of notification of such approval to the AMF, and ending at the latest on the date which is 12 months after the date of approval of the base prospectus, all in accordance with articles L.412-1 and L.621-8 of the French Code monétaire et financier and the Règlement général of the AMF and in each case (iii) when the formalities required by French laws and regulations have been carried out; or
(b) Private placement in France: it has not offered or sold and will not offer or sell, directly or indirectly, Securities to the public in France, and has not distributed or caused to be distributed and will not distribute or cause to be distributed to the public in France, the Base Prospectus, the relevant Final Terms or any other offering material relating to the Securities, and that such offers, sales and distributions have been and will be made in France only to (a) providers of investment services relating to portfolio management for the account of third parties, and/or (b) qualified investors (investisseurs qualifiés) other than individuals all as defined in, and in accordance with, articles L.411-1, L.411-2 and D.411-1 of the French Code monétaire et financier.
Jersey
Securities may not be offered to, sold to or purchased by persons resident for income tax purposes in Jersey (other than financial institutions in the ordinary course of business). Securities may not be transferred to a person resident for income tax purposes in Jersey (other than financial institutions in the ordinary course of business), unless the Registrar is satisfied that the beneficial owner thereof is not resident in Jersey for income tax purposes.
The United States
The Securities have not been and will not be registered under the Securities Act. Trading in the Securities has not been and will not be approved on an exchange or board of trade or otherwise by the United States Commodity Futures Trading Commission under the United States Commodity Exchange Act. The Securities may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons at any time. The Issuer will not offer or sell the Securities at any time within the United States or to, or for the account or benefit of, U.S. persons, and it will send to each person to which it sells Securities at any time a confirmation or other notice setting forth the restrictions on offers and sales of the Securities in the United States or to, or for the account or benefit of, U.S. persons. Each person who enters into a subscription agreement in relation to the Securities with the Issuer will agree, with respect to the Tranche of Securities being purchased by it, that it will not offer, or sell the Securities within the United States or to, or for the account or benefit of, U.S. persons, and it will have sent to each person to which it sells any Securities a confirmation or other notice setting forth the restrictions on offers and sales of the Securities within the United States or to, or for the account or benefit of, U.S. persons. In addition the Securities will be exercisable by the holder only upon certification as to non-U.S. beneficial ownership. As used in this paragraph "United States" means the United States of America, its territories or possessions, any state of the United States, the District of Columbia or any other enclave of the United States government, its agencies or instrumentalities, and "U.S. person" means (i) any person who is a U.S. person as defined in Regulation S under the Securities Act or (ii) any person or entity other than one of the following:
(i) a natural person who is not a resident of the United States;
(ii) a partnership, corporation or other entity, other than an entity organised principally for passive investment, organised under the laws of a jurisdiction other than the United States and which has its principal place of business in a jurisdiction other than the United States;
(iii) an estate or trust, the income of which is not subject to United States income tax regardless of source;
(iv) an entity organised principally for passive investment such as a pool, investment company or other similar entity, provided that units of participation in the entity held by U.S. persons represent in the aggregate less than 10% of the beneficial interest in the entity, and that such entity was not formed principally for the purpose of facilitating investment by U.S. persons; or
(v) a pension plan for the employees, officers or principals of an entity organised and with its principal place of business outside the United States.
In addition, each purchaser (or transferee) and any person directing such purchase (or transfer) will represent and warrant, or will be deemed to have represented and warranted by purchasing or otherwise holding a Security that on each day from the date on which the purchaser (or transferee) acquires the Security through and including the date on which the purchaser (or transferee) disposes of its interest in the Security, that the purchaser (or transferee) is not an "employee benefit plan" within the meaning of UK/1001958/13 - 95 - 243311/70-40108501 Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to Section 406 of the ERISA, a "plan" subject to Section 4975(e)(1) of the U.S. Internal Revenue Code of 1986 (the "Code"), a person or entity the assets of which include the assets of any such "employee benefit plan" or "plan," or a governmental plan that is subject to any law or regulation that is similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
European Economic Area
No offer of the Securities may be made to any person in any member state of the European Union which has implemented the Prospectus Directive (each a "Relevant Member State") with effect from and including the date on which the Prospectus Directive is implemented in that Member State (the "Relevant Implementation Date"), except that, with effect from the Relevant Implementation Date, an offer of the Securities may be made:
(i) in the period beginning on the date of publication of a prospectus in relation to those Securities and ending on the date which is 12 months after the date of such publication provided that:
(a) such prospectus has been approved by the competent authority of the Relevant Member State in accordance with the Prospectus Directive and any relevant implementing measures; or
(b) where the competent authority of a member state other than the Relevant Member State has approved a prospectus in relation to those Securities in accordance with the Prospectus Directive and any relevant implementing measures, such prospectus has been duly notified to the competent authority of the Relevant Member State in accordance with Article 18 of the Prospectus Directive and any relevant implementing measures; and
(ii) at any time:
(a) to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to a legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of at least EUR 43 million; and (3) an annual net turnover of at least EUR 50 million, as shown in its last annual or consolidated accounts; or
(c) otherwise in circumstances which do not require the publication of a prospectus pursuant to Article 3 of the Prospectus Directive and any relevant implementing measures.
For the purposes of this provision, the expression an "offer of the Securities" in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that Member State.
United Kingdom
Each Issuer and each Guarantor has represented and agreed that it has only communicated and caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the securities in circumstances in which section 21(1) of the FSMA does not apply to the Issuers or the Guarantors and that it has complied and will comply with all applicable provisions of the FSMA with UK/1001958/13 - 96 - 243311/70-40108501 respect to anything done by it in relation to the Securities from or otherwise involving the United Kingdom.
France
Each Issuer and each Guarantor has represented and agreed that:
(a) Offer to the public in France: it has only made and will only make an offer of Securities to the public (appel public à l'épargne) in France in the period beginning (i) when a prospectus in relation to those Securities has been approved by the Autorité des marchés financiers ("AMF"), on the date of such publication or, (ii) when a prospectus has been approved by the competent authority of another Member State of the European Economic Area which has implemented the EU Prospectus Directive 2003/71/EC, on the date of notification of such approval to the AMF, and ending at the latest on the date which is 12 months after the date of approval of the base prospectus, all in accordance with articles L.412-1 and L.621-8 of the French Code monétaire et financier and the Règlement général of the AMF and in each case (iii) when the formalities required by French laws and regulations have been carried out; or
(b) Private placement in France: it has not offered or sold and will not offer or sell, directly or indirectly, Securities to the public in France, and has not distributed or caused to be distributed and will not distribute or cause to be distributed to the public in France, the Base Prospectus, the relevant Final Terms or any other offering material relating to the Securities, and that such offers, sales and distributions have been and will be made in France only to (a) providers of investment services relating to portfolio management for the account of third parties, and/or (b) qualified investors (investisseurs qualifiés) other than individuals all as defined in, and in accordance with, articles L.411-1, L.411-2 and D.411-1 of the French Code monétaire et financier.
Jersey
Securities may not be offered to, sold to or purchased by persons resident for income tax purposes in Jersey (other than financial institutions in the ordinary course of business). Securities may not be transferred to a person resident for income tax purposes in Jersey (other than financial institutions in the ordinary course of business), unless the Registrar is satisfied that the beneficial owner thereof is not resident in Jersey for income tax purposes.