Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than: (a) to any legal entity which is a qualified investor as defined in the Prospectus Directive; (b) to 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 written consent of the Underwriters; or (c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally represents and agrees that: (a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would not apply to the Issuer; and (b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 6 contracts
Sources: Underwriting Agreement (Prologis, L.P.), Underwriting Agreement (Prologis, L.P.), Underwriting Agreement (Prologis, L.P.)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 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 written consent of the Underwritersunderwriters; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer Company or any Underwriter underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would not apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 3 contracts
Sources: Underwriting Agreement (Prologis, Inc.), Purchase Agreement (Prologis), Purchase Agreement (Prologis)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 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 written consent of the UnderwritersRepresentative; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; . provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities securities to the public” in relation to any Securities 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 2 contracts
Sources: Terms Agreement (Limited Brands Inc), Terms Agreement (Limited Brands Inc)
Offering Restrictions. (i) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has ) they have not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that they may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State at any time:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the UnderwritersUnderwriter nominated by the Company for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities securities to the public” in relation to any Securities of the 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 notes to be offered so as to enable an investor to decide to purchase or subscribe for the Securitiesnotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and 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 the Relevant Member State, State and the expression “2010 PD Amending Directive Directive” means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:
(a) it has they have complied and will comply with all applicable provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the “FSMA”) with respect to anything done by them in relation to the notes in, from or otherwise involving the United Kingdom; and
(b) they have only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it them in connection with the issue or sale of the Securities any notes in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdomus.
Appears in 2 contracts
Sources: Terms Agreement (L Brands, Inc.), Terms Agreement (L Brands, Inc.)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus DirectiveDirective ; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would not apply to the Issuer; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 2 contracts
Sources: Underwriting Agreement (Prologis, L.P.), Underwriting Agreement (Prologis, L.P.)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 natural or legal persons (other than qualified investors as defined in the Prospectus Prospective Directive), as permitted under the Prospectus Directive, ) subject to obtaining the prior written consent of the Underwritersrepresentative of any such offer; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” in relation to any Securities Notes 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 Notes to be offered so as to enable an investor to decide to purchase or subscribe for the SecuritiesNotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities Notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom.
Appears in 2 contracts
Sources: Underwriting Agreement (Prologis), Underwriting Agreement (Prologis)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents a) Each Agent covenants and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made solicited and will solicit offers for the purchase of Units in accordance with the terms and conditions of this Agreement and in compliance with the Securities Laws, to persons who represent themselves as being a resident in one of the Selling Jurisdictions who meet the requirements of one of the exemptions from the prospectus and registration requirements of the Securities Laws as contemplated in the form of Subscription Agreement, and that it will not make an offer available to prospective Purchasers of the Units any document or material which would constitute an offering memorandum under applicable Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;Laws.
(b) Each Agent covenants and agrees that it will offer and sell (i) the Units in the United States solely pursuant to fewer than 100, or, if the Relevant Member State has implemented exemption from the relevant provision registration requirements of the 2010 PD Amending DirectiveU.S. Securities Act provided by Rule 506(b) of Regulation D and similar exemptions under applicable U.S. state Securities Laws, 150and (ii) the Units in other jurisdictions in accordance with Rule 903 of Regulation S, natural or legal persons (and any applicable securities and other than qualified investors as defined laws in the Prospectus Directive)jurisdictions in which the Agents and/or selling group members offer the Units and as agreed to by the Corporation. The Agents shall have the right to offer the Units in the United States, as permitted under through one or more of their U.S. Affiliates, in accordance with Schedule A attached hereto to Purchasers that are Qualified Institutional Buyers or U.S. Accredited Investors pursuant to the Prospectus Directive, subject to obtaining exemption from the prior written consent registration requirements of the Underwriters; orU.S. Securities Act provided by Rule 506(b) of Regulation D.
(c) in Neither the Corporation, nor the Agents, shall make any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it public announcement in connection with the issue Offering, except if the other party has consented to such announcement or sale the announcement is required by applicable laws or stock exchange rules. For greater certainty, the Corporation will promptly provide to the Agents drafts of any press releases of the Securities Corporation relating to the Offering for review and comment by the Agents and the Agents’ counsel prior to issuance, provided that any such review will be completed in circumstances a timely manner, and the Corporation will incorporate in which Section 21(1) such press releases all reasonable comments of the FSMA would Agents. To deal with the possibility that the Units may be offered and sold in the United States, any such press release shall contain the following legend and comply with Rule 135e under the U.S. Securities Act: “NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” In addition, any such press release shall also contain substantially the following disclaimer language: “This news release does not apply constitute an offer to sell or a solicitation of an offer to buy any of the Issuer; and
(b) it has complied securities in the United States. The securities have not been and will comply with all applicable provisions of not be registered under the FSMA with respect to anything done by it U.S. Securities Act or any state securities laws and may not be offered or sold in relation to the Securities in, from or otherwise involving the United KingdomStates unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.”
Appears in 1 contract
Sources: Agency Agreement
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 natural or legal persons (other than qualified investors as defined in the Prospectus Prospective Directive), as permitted under the Prospectus Directive, ) subject to obtaining the prior written consent of the Underwritersrepresentative of any such offer; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” in relation to any Securities Notes 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 Notes to be offered so as to enable an investor to decide to purchase or subscribe for the SecuritiesNotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇A▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities Notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each the Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any 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 more than 100, or, if the Relevant Member State has implemented the relevant provision €43,000,000 and (3) an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Underwritersshown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” in relation to any Securities Notes 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 Notes to be offered so as to enable an investor to decide to purchase or subscribe for the SecuritiesNotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each The Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. You hereby represent to each Issuer and the Guarantor and agree with respect to the Program Securities that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities, the Prospectus and the Time of Sale Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the relevant Issuer for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantorrelevant Issuer, the Issuer Guarantor or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 9(a), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments theretoas amended, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), by Directive 2010/73/EU) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ab) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to either Issuer or the Issuer; and
Guarantor, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(c) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Issuer.
(d) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(e) None of the Program Securities (except for Program Securities which are a “structured product” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong) has been offered or sold or will be offered or sold in Hong Kong, by means of any document, other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) (the “SFO”) and any rules made under that Ordinance or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) or which do not constitute an offer to the public within the meaning of that Ordinance. No person has issued or may issue or had or may have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Program Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the applicable securities law of Hong Kong) other than with respect to the Program Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under that Ordinance.
(f) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, neither any free writing prospectus relating to the Program Securities nor the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA (an “Institutional Investor”) pursuant to Section 274 of the SFA), (ii) to a relevant person as defined in Section 275(2) of the SFA (a “Relevant Person”), or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed or purchased pursuant to an offer made in reliance on Section 275 by a Relevant Person which is:
(i) a corporation (which is not an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, the securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has acquired the Program Securities pursuant to an offer made under Section 275 of the SFA except:
(A) to an Institutional Investor or to a Relevant Person, or to any person arising from an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law; or
(D) pursuant to Section 276(7) of the SFA or Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations.
(g) The Program Securities may not be offered or sold, directly or indirectly, in or from Switzerland except in circumstances that will not result in the offer of the Program Securities being a public offering in Switzerland within the meaning of the Swiss Federal Code of Obligations (“CO”). Neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering or marketing material relating to the Program Securities constitutes a prospectus as that term is understood pursuant to Article 652a or 1156 CO or a listing prospectus pursuant to the listing rules of SIX Swiss Exchange, and neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering material relating to the Program Securities may be publicly distributed or otherwise made publicly available in Switzerland. The Program Securities are not authorized by or registered with the Swiss Financial Market Supervisory Authority as a foreign collective investment scheme. Therefore, investors do no benefit from protection under the Swiss Federal Act on Collective Investment Schemes or supervision by the Swiss Financial Market Supervisory Authority.
(h) Without prejudice to the provisions of this Section 9 above, if any Program Securities are to be offered outside the United States, you will not purchase, deliver, offer or sell any such Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of either Issuer or the Guarantor unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 9 above and subject to the obligations of the Issuers and the Guarantor set forth in Section 4 of this Agreement, neither Issuer nor the Guarantor shall have any responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Sources: u.s. Distribution Agreement (Morgan Stanley Capital Trust Iv)
Offering Restrictions. In relation to each Member State 5.1 The sale of the European Economic Area Special Warrants to the Purchasers will be effected only pursuant to Exemptions which has implemented do not require the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees delivery or filing of an Offering Memorandum.
5.2 Each of the Agents acknowledges that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has Securities have not made been and will not make be registered under the 1933 Act and may not be offered or sold except in accordance with Regulation S or, for offers and sales within the United States, pursuant to an offer exemption from the registration requirements of the Securities which are the subject 1933 Act. Accordingly, each of the offering contemplated by the prospectus supplement Agents represents, warrants and covenants to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated offered and sold, and will offer and sell, Securities only communicate in accordance with Rule 903 of Regulation S or cause as provided in subsections (b) through (f) below. Accordingly, neither the Agents, their affiliates nor any persons acting on their behalf, has made or will make (except as permitted in subsections (b) through (f) below):
(i) any offer to sell, or any solicitation of an offer to buy, any Securities to any person in the United States,
(ii) any sale of Securities to any purchaser unless, at the time the buy order was or will have been originated, the purchaser was outside the United States, or the Agent, its affiliate or person acting on behalf of either reasonably believed that such purchaser was outside the United States, or
(iii) any Directed Selling Efforts in the United States with respect to the Securities. Terms used in this paragraph have the meanings given to them by Regulation S;
(b) the Agent, acting through a U.S. broker-dealer, may only offer the Securities in the United States to Institutional Accredited Investors with which such Agent has a pre-existing relationship;
(c) immediately prior to soliciting such offerees, the Agent had reasonable grounds to believe and did believe that each offeree was an Institutional Accredited Investor;
(d) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be communicated an invitation used, including advertisements, articles, notices or inducement to engage other communications published in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by it general solicitation or general advertising, in connection with the issue offer or sale of the Securities in circumstances the United States;
(e) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States was or will be made only to Institutional Accredited Investors that are exempt or in transactions that are exempt from registration under applicable state securities laws; and
(f) it will not solicit offers for, offer to sell, or sell, the Securities in any state or other jurisdiction where it is not registered as a broker-dealer or otherwise exempt from such registration.
(g) the subscription forms to be executed by Purchasers in the United States will contain the representations and warranties of such Purchasers set forth in Schedule "B" hereto; and
(h) at each Closing, each Agent with a U.S. broker-dealer affiliate which sells Special Warrants in the United States will provide a certificate, substantially in the form of Exhibit I attached hereto, relating to the manner of the offer and sale of the Securities in the United States.
5.3 The Issuer represents, warrants, covenants and agrees with the Agents that:
(a) the Issuer is a Foreign Issuer with no Substantial U.S. Market Interest in the Securities;
(b) except with respect to offers and sales to Institutional Accredited Investors who are in the United States in reliance upon an exemption from registration under Section 21(14(2) of the FSMA would not apply 1933 Act, neither the Issuer nor any of its affiliates, nor any person acting on their behalf, has made or will make:
(i) any offer to sell, or any solicitation of an offer to buy, any Securities to a person in the United States; or
(ii) any sale of Securities unless, at the time the buy order was or will have been originated, the purchaser is:
(A) outside the United States; or
(B) the Issuer, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States;
(c) during the period in which the Securities are offered for sale, neither it nor any of its affiliates, nor any person acting on their behalf has made or will make any Directed Selling Efforts in the United States, or has taken or will take any action that would cause the exemption afforded by Section 4(2) of the U.S. Securities Act or Regulation S to be unavailable for offers and sales of the Securities, pursuant to this Agreement;
(d) none of the Issuer, its affiliates or any person acting on its or their behalf have engaged or will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D) with respect to offers or sales of the Securities in the United States, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media, or broadcast over radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
5.4 The Agents will only sell the Special Warrants to persons who represent themselves as being persons:
(a) purchasing as principal or persons who are deemed by law or discretionary order to be purchasing as principal; and
(b) it qualified to purchase the Special Warrants under the Exemptions.
5.5 The Private Placement has complied not been and will comply not be advertised in any way.
5.6 No selling or promotional expenses will be paid or incurred in connection with all applicable provisions of the FSMA with respect to anything done Private Placement, except for professional services or for services performed by it in relation to the Securities in, from or otherwise involving the United Kingdoma registered dealer.
Appears in 1 contract
Offering Restrictions. You hereby represent to the Company and agree with respect to the Program Securities that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities and the Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the Company for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantor, the Issuer Company or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 7(a), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, Directive to the extent implemented in the Relevant Member State), ) and includes any relevant implementing measure in each Relevant Member State, State and the expression “2010 PD Amending Directive Directive” means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ab) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
Company, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(c) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Company.
(d) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(e) You will not offer or sell, directly or indirectly, any Program Securities in the Republic of France and will not distribute or cause to be distributed in the Republic of France the Prospectus or any other offering material relating to the Program Securities, except to qualified investors (investisseurs qualifiés) as defined in and in accordance with Articles L.411-2 and D.411-1 to D.411-3 of the French Code Monétaire et Financier.
(f) None of the Program Securities (except for Program Securities which are a “structured product” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong) has been offered or sold or will be offered or sold in Hong Kong, by means of any document, other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) (the “SFO”) and any rules made under that Ordinance or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) or which do not constitute an offer to the public within the meaning of that Ordinance. No person has issued or may issue or had or may have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Program Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the applicable securities law of Hong Kong) other than with respect to the Program Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under that Ordinance.
(g) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, neither any free writing prospectus relating to the Program Securities nor the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA (an “Institutional Investor”) pursuant to Section 274 of the SFA), (ii) to a relevant person as defined in Section 275(2) of the SFA (a “Relevant Person”), or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed or purchased pursuant to an offer made in reliance on Section 275 by a Relevant Person which is:
(i) a corporation (which is not an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, the securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has acquired the Program Securities pursuant to an offer made under Section 275 of the SFA except:
(A) to an Institutional Investor or to a Relevant Person, or to any person arising from an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law; or
(D) pursuant to Section 276(7) of the SFA or Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations.
(h) Without prejudice to the provisions of this Section 7 above, you will not purchase, deliver, offer or sell any Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of the Company unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 7 above and subject to the obligations of the Company set forth in Section 3 of this Agreement, the Company shall have no responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Sources: Euro Distribution Agreement (Morgan Stanley Capital Trust XII)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 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 written consent of the Underwritersrepresentative of any such offer; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities inSecurities, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. You hereby represent to the Company and agree with respect to the Program Securities that:
(a) In respect of any offer of Program Securities on or after January 1, 2018, unless the Time of Sale Prospectus or the Prospectus in respect of any Program Securities specifies the “Prohibition of Sales to EEA Retail Investors” as “Not Applicable”, you will not offer, sell or otherwise make available any Program Securities which are the subject of the offering contemplated by the Time of Sale Prospectus or the Prospectus in relation thereto to any retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “retail investor” means a person who is one (or more) of the following:
(A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, "MiFID II"); or
(B) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
(C) not a qualified investor as defined in the Prospectus Directive (as defined in Section 7(b) below); and
(ii) the expression an “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities.
(b) Prior to January 1, 2018, and from that date if the Time of Sale Prospectus or the Prospectus in respect of any Program Securities specifies the “Prohibition of Sales to EEA Retail Investors” as “Not Applicable”, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities, the Prospectus and the Time of Sale Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the Company for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantor, the Issuer Company or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 7(b), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments theretoas amended, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), by Directive 2010/73/EU) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ac) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
Company, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(d) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Company.
(e) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(f) You will not offer or sell, directly or indirectly, any Program Securities in the Republic of France and will not distribute or cause to be distributed in the Republic of France the Prospectus or any other offering material relating to the Program Securities, except to qualified investors (investisseurs qualifiés) as defined in and in accordance with Articles L.411-2 and D.411-1 of the French Code Monétaire et Financier.
(g) The contents of the Prospectus have not been reviewed or approved by any regulatory authority in Hong Kong. The Prospectus does not constitute an offer or invitation to the public in Hong Kong to acquire Program Securities. Accordingly, no person may issue or have in its possession for the purpose of issue, the Prospectus or any advertisement, invitation or document relating to the Program Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong, except (i) where the Program Securities are only intended to be offered to “professional investors” (as such term is defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“SFO”) and the subsidiary legislation made thereunder), (ii) in circumstances which do not result in the Prospectus being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance of Hong Kong (Cap. 32 of the Laws of Hong Kong) (“CO”), or (iii) in circumstances which do not constitute an offer or an invitation to the public for the purposes of the SFO or the CO. The offer of the Program Securities is personal to the person to whom the Prospectus has been delivered by or on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and a subscription for Program Securities will only be accepted from such person. No person to whom a copy of the Prospectus is issued may copy, issue or distribute the Prospectus to any other person.
(h) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, any free writing prospectus relating to the Program Securities, the Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may not be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA (an “Institutional Investor”)) pursuant to Section 274 of the SFA, (ii) to an accredited investor (as defined in Section 4A of the SFA (an “Accredited Investor”)) or other relevant person (as defined in Section 275(2) of the SFA (a “Relevant Person”)) and pursuant to Section 275(1) of the SFA, or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with, the conditions of any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed for or acquired pursuant to an offer made in reliance on Section 275 of the SFA by a Relevant Person which is:
(i) a corporation (which is not an Accredited Investor), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor), the sole purpose of which is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, shares, debentures and units of shares and debentures of that corporation and the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has subscribed for or acquired the Program Securities except:
(A) to an Institutional Investor, or an Accredited Investor or other Relevant Person, or which arises from an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law;
(D) as specified in Section 276(7) of the SFA; or
(E) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
(i) The Program Securities may not be offered or sold, directly or indirectly, in or from Switzerland except in circumstances that will not result in the offer of the Program Securities being a public offering in Switzerland within the meaning of the Swiss Federal Code of Obligations (“CO”). Neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering or marketing material relating to the Program Securities constitutes a prospectus as that term is understood pursuant to Article 652a or 1156 CO or a listing prospectus pursuant to the listing rules of SIX Swiss Exchange, and neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering material relating to the Program Securities may be publicly distributed or otherwise made publicly available in Switzerland. The Program Securities are not authorized by or registered with the Swiss Financial Market Supervisory Authority as a foreign collective investment scheme. Therefore, investors do not benefit from protection under the Swiss Federal Act on Collective Investment Schemes or supervision by the Swiss Financial Market Supervisory Authority.
(j) Without prejudice to the provisions of this Section 7 above, you will not purchase, deliver, offer or sell any Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of the Company unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 7 above and subject to the obligations of the Company set forth in Section 3 of this Agreement, the Company shall have no responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Sources: Euro Distribution Agreement (Morgan Stanley Finance LLC)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally a) The Initial Purchaser represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made offered or sold, and it will not offer or sell, the Purchased Notes to any person who is not an Eligible Investor of the type as set forth in clauses (i)(A), (i)(B) or (ii) of the definition thereof.
(b) The Initial Purchaser represents and warrants that it is (i) an Institutional Accredited Investor and (ii) a QIB/QP.
(c) The Initial Purchaser represents that it has not solicited any offer to buy or offered, and agrees that it will not solicit any offer to buy or offer, the Purchased Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) under the Securities Act).
(d) The Initial Purchaser represents that it has not engaged and agrees that it, its affiliates and any person acting on its or their behalf, will not engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Purchased Notes, and that it has complied and will comply with the applicable offering restriction requirements of Regulation S.
(e) The Initial Purchaser agrees that it has not make an offered or sold, and that it will not offer of or sell, the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other than:the Cayman Islands.
(af) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally The Initial Purchaser represents and agrees that:
that (ai) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue issuance or sale of the Securities any Notes in circumstances in which Section 21(1) of the FSMA would does not apply to the IssuerCo-Issuers; and
and (bii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom.
(g) The Initial Purchaser represents that it will comply with all requirements of U.S. federal and state law, and all regulatory rules and procedures with respect to anti-money laundering obligations and know your customer obligations as they relate to the offer and sale of the Purchased Notes, including without limitation, applicable rules and regulations under the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended).
(h) The Initial Purchaser acknowledges and agrees that any purchases, placements and resales of the Purchased Notes by it are restricted as described under “Transfer Restrictions” in the Offering Document and the Indenture.
(i) The Initial Purchaser represents and agrees that it is not a retirement plan or other plan that is subject to Section 406 of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any entity whose underlying assets include “plan assets” by reason of such plan investment in the entity, or a governmental, church non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
(j) The Initial Purchaser represents and agrees that:
(i) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Purchased Notes to any retail investor in the United Kingdom. For purposes of this provision:
(1) the expression “retail investor” means a person who is neither (i) a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of assimilated law in the UK by virtue of the European Union (Withdrawal) Act 2018 (as amended, including (but not limited to) by way of the Retained EU Law (Revocation and Reform) Act 2023) (“EUWA”); nor (ii) a qualified investor as defined in paragraph 15 of Schedule 1 to the Public Offers and Admissions to Trading Regulations 2024; and
(2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(ii) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Purchased Notes to any retail investor in the European Economic Area. For purposes of this provision:
(1) the expression “retail investor” means a person who is one (or more) either: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129; and
(2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(k) At or prior to confirmation of sale of any Notes in reliance on Regulation S, it will have sent to each distributor, dealer or other person to which it sells such Notes during the distribution compliance period (as defined in Regulation S) a written confirmation or notice to substantially the following effect: “The Notes covered hereby have not been and will not be registered under the U.S. Securities Act and may not be offered, sold, resold, delivered or transferred within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the Closing Date and the commencement of the offering of the Notes, except in accordance with Regulation S or Rule 144A under the U.S. Securities Act. Terms used above have the meanings given to them by Regulation S under the U.S. Securities Act.”
Appears in 1 contract
Sources: Refinancing Note Purchase Agreement (Palmer Square Capital BDC Inc.)
Offering Restrictions. You hereby represent to each Issuer and the Guarantor and agree with respect to the Program Securities that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities, the Prospectus and the Time of Sale Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the relevant Issuer for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantorrelevant Issuer, the Issuer Guarantor or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 9(a), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments theretoas amended, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), by Directive 2010/73/EU) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ab) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to either Issuer or the Issuer; and
Guarantor, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(c) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Issuer.
(d) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(e) You will not offer or sell, directly or indirectly, any Program Securities in the Republic of France and will not distribute or cause to be distributed in the Republic of France the Prospectus or any other offering material relating to the Program Securities, except to qualified investors (investisseurs qualifiés) as defined in and in accordance with Articles L.411-2 and D.411-1 of the French Code Monétaire et Financier.
(f) The contents of the Prospectus have not been reviewed or approved by any regulatory authority in Hong Kong. The Prospectus does not constitute an offer or invitation to the public in Hong Kong to acquire Program Securities. Accordingly, unless permitted by the securities laws of Hong Kong, no person may issue or have in its possession for the purpose of issue, the Prospectus or any advertisement, invitation or document relating to the Program Securities, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong other than in relation to Program Securities which are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” (as such term is defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“SFO”) and the subsidiary legislation made thereunder) or in circumstances which do not result in the Prospectus being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance of Hong Kong (Cap. 32 of the Laws of Hong Kong) (“CO”) or which do not constitute an offer or an invitation to the public for the purposes of the SFO or the CO. The offer of the Program Securities is personal to the person to whom the Prospectus has been delivered by or on behalf of Morgan Stanley, and a subscription for Program Securities will only be accepted from such person. No person to whom a copy of the Prospectus is issued may issue, circulate or distribute the Prospectus in Hong Kong or make or give a copy of the Prospectus to any other person.
(g) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, any free writing prospectus relating to the Program Securities, the Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may not be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA (an “Institutional Investor”)) pursuant to Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA (a “Relevant Person”)) pursuant to Section 275(1) of the SFA, or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed or purchased pursuant to an offer made in reliance on Section 275 of the SFA by a Relevant Person which is:
(i) a corporation (which is not an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”)), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, shares, debentures and units of shares and debentures of that corporation and the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has acquired the Program Securities pursuant to an offer made under Section 275 of the SFA except:
(A) to an Institutional Investor, a Relevant Person, or any person pursuant to an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law;
(D) pursuant to Section 276(7) of the SFA; or
(E) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
(h) The Program Securities may not be offered or sold, directly or indirectly, in or from Switzerland except in circumstances that will not result in the offer of the Program Securities being a public offering in Switzerland within the meaning of the Swiss Federal Code of Obligations (“CO”). Neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering or marketing material relating to the Program Securities constitutes a prospectus as that term is understood pursuant to Article 652a or 1156 CO or a listing prospectus pursuant to the listing rules of SIX Swiss Exchange, and neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering material relating to the Program Securities may be publicly distributed or otherwise made publicly available in Switzerland. The Program Securities are not authorized by or registered with the Swiss Financial Market Supervisory Authority as a foreign collective investment scheme. Therefore, investors do not benefit from protection under the Swiss Federal Act on Collective Investment Schemes or supervision by the Swiss Financial Market Supervisory Authority.
(i) Without prejudice to the provisions of this Section 9 above, if any Program Securities are to be offered outside the United States, you will not purchase, deliver, offer or sell any such Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of either Issuer or the Guarantor unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 9 above and subject to the obligations of the Issuers and the Guarantor set forth in Section 4 of this Agreement, neither Issuer nor the Guarantor shall have any responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would not apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make an offer of the available any Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified retail investor as defined in the Prospectus Directive;
(b) to 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus DirectiveEuropean Economic Area. For the purposes of this provision, :
(a) the expression an “offer retail investor” means a person who is one (or more) of the Securities to following:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”);
(ii) a customer within the publicmeaning of Directive (EU) 2016/97, as amended (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of M▇▇▇▇ ▇▇; or
(iii) not a qualified investor as defined in Regulation (EU) 2017/1129; and
(b) the expression “offer” in relation to any Securities in any Relevant Member State means includes 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 for the Securities. Each Underwriter represents and agrees that it has not offered, as sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the same may be varied in that Member State by any measure implementing United Kingdom. For the Prospectus Directive in that Member State, purposes of this provision:
(a) the expression “Prospectus Directiveretail investor” means Directive 2003/71/EC a person who is one (or more) of the following:
(i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law in the United Kingdom by virtue of the European Union (Withdrawal) A▇▇ ▇▇▇▇, as amended by the European Union (Withdrawal Agreement) A▇▇ ▇▇▇▇ (the “EUWA”);
(ii) a customer within the meaning of the provisions of the United Kingdom’s Financial Services and amendments theretoMarkets A▇▇ ▇▇▇▇, including as amended (the 2010 PD Amending “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, to the extent implemented where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law in the Relevant Member State), United Kingdom by virtue of the EUWA; or
(iii) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law in the United Kingdom by virtue of the EUWA; and
(b) the expression “offer” includes the communication in any form and includes by any relevant implementing measure in each Relevant Member State, means of sufficient information on the terms of the offer and the expression 2010 PD Amending Directive means Directive 2010/73/EUSecurities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇A▇▇ ▇▇▇▇ ▇, as amended (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally a) The Initial Purchaser represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made offered or sold, and it will not make offer or sell, the Purchased Notes to any person who is not an offer Eligible Investor meeting the requirements of clauses (i)(A), (i)(B) and (ii) of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;definition thereof.
(b) to 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 The Initial Purchaser represents and warrants that it is (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Underwriters; ori) an Institutional Accredited Investor and (ii) a QIB/QP.
(c) The Initial Purchaser represents that it has not solicited any offer to buy or offered, and agrees that it will not solicit any offer to buy or offer, the Purchased Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) under the Securities Act).
(d) The Initial Purchaser represents that it has not engaged and agrees that it, its affiliates and any person acting on its or their behalf, will not engage in any other circumstances falling within Article 3(2directed selling efforts (as that term is defined in Regulation S) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities with respect to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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)Purchased Notes, and includes any relevant implementing measure in each Relevant Member State, that it has complied and will comply with the expression 2010 PD Amending Directive means Directive 2010/73/EU. Each Underwriter further severally applicable offering restriction requirements of Regulation S.
(e) The Initial Purchaser represents and agrees that:
that (ai) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities any Notes in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
and (bii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom.
(f) The Initial Purchaser represents that it will comply with all requirements of U.S. federal and state law, and all regulatory rules and procedures with respect to anti-money laundering obligations and know your customer obligations as they relate to the offer and sale of the Purchased Notes, including without limitation, applicable rules and regulations under the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended).
(g) The Initial Purchaser acknowledges and agrees that any purchases, placements and resales of the Purchased Notes by it are restricted as described under “Transfer Restrictions” in the Offering Document and the Indenture.
(h) The Initial Purchaser represents and agrees that it is not a retirement plan or other plan that is subject to Section 406 of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any entity whose underlying assets include “plan assets” by reason of such plan investment in the entity, or a governmental, church non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
(i) The Initial Purchaser represents and agrees that: (i) the Offering Document has not, and no prospectus or other disclosure document in relation to the Notes has been, lodged with or registered by the Australian Securities and Investments Commission (“ASIC”); and (ii) it has not offered for subscription or purchase or issued invitations to subscribe for or buy, or made or invited applications for an offer of the Notes for issuance, sale or purchase, nor has it sold the Notes, and it will not offer for subscription or purchase or issue invitations to subscribe for or buy, or make or invite applications for an offer of the Notes for issuance, sale or purchase, nor will it sell the Notes, and it has not distributed and will not distribute any draft, preliminary or definitive offering memorandum or circular, advertisement or other offering material relating to the Notes (including the Offering Document), in each such case in the Commonwealth of Australia, its territories or possessions, unless (A) the minimum aggregate consideration payable by each offeree is a minimum amount of A$500,000 (calculated in accordance with section 708(9) of the Corporations Act and Regulation 7.1.18 of the Corporations Regulations 2001(Cth)) or the offer, invitation or issue is otherwise an offer, invitation or issue for which no disclosure is required pursuant to Part 6D.2 of the Corporations Act; (B) the offer or invitation is not made to a person who is a “retail client” within the meaning of section 761G of the Corporations Act; and (C) the offer, invitation or distribution complies with all applicable laws, regulations and directives (including, without limitation, the licensing in Chapter 7 of the Corporations Act 2001 (Cth)) and does not require any document to be lodged with ASIC.
(j) The Initial Purchaser represents and agrees that (i) the Notes may only be offered in the Republic of Austria in compliance with the provisions of the Austrian Capital Market Act and other laws applicable in the Republic of Austria governing the offer and sale of the Notes in the Republic of Austria; and (ii) the recipients of the Offering Document and other selling material in respect of the Notes have been individually selected and identified before the offer being made and are targeted exclusively on the basis of a private placement; and (iii) the Notes have not been, must not be and are not being offered or advertised publicly or offered similarly under either the Capital Market Act, the Investment Funds Act or any other securities regulation in Austria; and (iv) any offers of the Notes have not been made and no offer of the Notes will be made to any persons other than the recipients to whom the Offering Document is personally addressed.
(k) The Initial Purchaser represents and agrees that any offer, or any actions which could be deemed an offering according to the Swedish Financial Instruments Act, performed by the Initial Purchaser has been made and will be made in accordance with the relevant exemptions under the Swedish Financial Instruments Act, in order to ensure that no Notes are offered or sold in such a manner that would require the registration of a prospectus by the Swedish Financial Supervisory Authority under the Swedish Financial Instruments Act.
(l) The Initial Purchaser represents and agrees that:
(i) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Purchased Notes to any EEA Retail Investor in the European Economic Area. For the purposes of this provision:
Appears in 1 contract
Sources: Note Purchase Agreement (HPS Corporate Lending Fund)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to any 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 more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 100 natural or legal persons (other than qualified investors as defined in the Prospectus Prospective Directive), as permitted under the Prospectus Directive, ) subject to obtaining the prior written consent of the Underwritersrepresentative of any such offer; or
(cd) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇A▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any 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 more than 100, or, if the Relevant Member State has implemented the relevant provision €43,000,000 and (3) an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Underwritersshown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” in relation to any Securities Notes 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 Notes to be offered so as to enable an investor to decide to purchase or subscribe for the SecuritiesNotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. You hereby represent to the Company and agree with respect to the Program Securities that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities and the Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the Company for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantor, the Issuer Company or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 8(a), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, Directive to the extent implemented in the Relevant Member State), ) and includes any relevant implementing measure in each Relevant Member State, State and the expression “2010 PD Amending Directive Directive” means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ab) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
Company, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(c) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Company.
(d) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(e) None of the Program Securities (except for Program Securities which are a “structured product” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong) has been offered or sold or will be offered or sold in Hong Kong, by means of any document, other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) (the “SFO”) and any rules made under that Ordinance or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) or which do not constitute an offer to the public within the meaning of that Ordinance. No person has issued or may issue or had or may have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Program Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the applicable securities law of Hong Kong) other than with respect to the Program Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under that Ordinance.
(f) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, neither any free writing prospectus relating to the Program Securities nor the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA (an “Institutional Investor”) pursuant to Section 274 of the SFA), (ii) to a relevant person as defined in Section 275(2) of the SFA (a “Relevant Person”), or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed or purchased pursuant to an offer made in reliance on Section 275 by a Relevant Person which is:
(i) a corporation (which is not an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, the securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has acquired the Program Securities pursuant to an offer made under Section 275 of the SFA except:
(A) to an Institutional Investor or to a Relevant Person, or to any person arising from an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law; or
(D) pursuant to Section 276(7) of the SFA or Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations.
(g) The Program Securities may not be offered or sold, directly or indirectly, in or from Switzerland except in circumstances that will not result in the offer of the Program Securities being a public offering in Switzerland within the meaning of the Swiss Federal Code of Obligations (“CO”). Neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering or marketing material relating to the Program Securities constitutes a prospectus as that term is understood pursuant to Article 652a or 1156 CO or a listing prospectus pursuant to the listing rules of SIX Swiss Exchange, and neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering material relating to the Program Securities may be publicly distributed or otherwise made publicly available in Switzerland. The Program Securities are not authorized by or registered with the Swiss Financial Market Supervisory Authority as a foreign collective investment scheme. Therefore, investors do no benefit from protection under the Swiss Federal Act on Collective Investment Schemes or supervision by the Swiss Financial Market Supervisory Authority.
(h) Without prejudice to the provisions of this Section 8 above, if any Program Securities are to be offered outside the United States, you will not purchase, deliver, offer or sell any such Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of the Company unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 8 above and subject to the obligations of the Company set forth in Section 3 of this Agreement, the Company shall have no responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Sources: u.s. Distribution Agreement (Morgan Stanley Capital Trust XII)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement Notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any 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 more than 100, or, if the Relevant Member State has implemented the relevant provision €43,000,000 and (3) an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Underwritersshown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” in relation to any Securities Notes 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 Notes to be offered so as to enable an investor to decide to purchase or subscribe for the SecuritiesNotes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇A▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. You hereby represent to the Company and agree with respect to the Program Securities that:
(a) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and you will not make an offer of the Program Securities which are the subject of the offering contemplated by any free writing prospectus relating to the prospectus supplement Program Securities, the Prospectus and the Time of Sale Prospectus to the public in that Relevant Member State other thanexcept that you may, with effect from and including the Relevant Implementation Date, make an offer of such Program Securities to the public in that Relevant Member State at any time:
(ai) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(bii) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 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 written consent of the Underwritersrelevant agent, underwriter or dealer nominated by the Company for any such offer; or
(ciii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; , provided that no such offer of the Program Securities referred to in (i) to (iii) above shall require the Parent Guarantor, the Issuer Company or any Underwriter agent, underwriter or dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionSection 7(a), the expression an “offer of the Program Securities to the public” in relation to any Program 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 Program Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Program Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments theretoas amended, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), by Directive 2010/73/EU) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU. Each Underwriter further severally represents and agrees that:.
(ab) it has With respect to Program Securities to be offered or sold in the United Kingdom, (1) you have only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”)) received by it you in connection with the issue or sale of the Program Securities in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
Company, and (b2) it has you have complied and will comply with all applicable provisions of the FSMA with respect to anything done by it you in relation to the Program Securities in, from or otherwise involving the United Kingdom.
(c) With respect to any Program Securities that have a maturity of less than one year, (x) you are a person whose ordinary activities involve you in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of your business, and (y) you have not offered or sold and will not offer or sell any Program Securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Program Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Company.
(d) The Program Securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Law No.25 of 1948, as amended, the “FIEA”). You will not offer or sell any Program Securities, directly or indirectly, in Japan or to or for the account or benefit of any resident of Japan (as defined under Item 5, Paragraph 1, Article 6 of the Foreign Exchange and Foreign Trade Act (Law No. 228 of 1949, as amended)) or to others for re-offering or resale, directly or indirectly, in Japan or to or for the account or benefit of a resident of Japan, except pursuant to an exemption from the registration requirements of and otherwise in compliance with the FIEA and any other applicable laws, regulations and ministerial guidelines of Japan.
(e) You will not offer or sell, directly or indirectly, any Program Securities in the Republic of France and will not distribute or cause to be distributed in the Republic of France the Prospectus or any other offering material relating to the Program Securities, except to qualified investors (investisseurs qualifiés) as defined in and in accordance with Articles L.411-2 and D.411-1 of the French Code Monétaire et Financier.
(f) The contents of the Prospectus have not been reviewed or approved by any regulatory authority in Hong Kong. The Prospectus does not constitute an offer or invitation to the public in Hong Kong to acquire Program Securities. Accordingly, unless permitted by the securities laws of Hong Kong, no person may issue or have in its possession for the purpose of issue, the Prospectus or any advertisement, invitation or document relating to the Program Securities, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong other than in relation to Program Securities which are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” (as such term is defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“SFO”) and the subsidiary legislation made thereunder) or in circumstances which do not result in the Prospectus being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance of Hong Kong (Cap. 32 of the Laws of Hong Kong) (“CO”) or which do not constitute an offer or an invitation to the public for the purposes of the SFO or the CO. The offer of the Program Securities is personal to the person to whom the Prospectus has been delivered by or on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and a subscription for Program Securities will only be accepted from such person. No person to whom a copy of the Prospectus is issued may issue, circulate or distribute the Prospectus in Hong Kong or make or give a copy of the Prospectus to any other person.
(g) Neither any free writing prospectus relating to the Program Securities nor the Prospectus has been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore, as amended (the “SFA”) by the Monetary Authority of Singapore and the Program Securities will be offered pursuant to exemptions under the SFA. Accordingly, any free writing prospectus relating to the Program Securities, the Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Program Securities may not be circulated or distributed, nor may the Program Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA (an “Institutional Investor”)) pursuant to Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA (a “Relevant Person”)) pursuant to Section 275(1) of the SFA, or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable exemption or provision of the SFA. You understand that where Program Securities are subscribed or purchased pursuant to an offer made in reliance on Section 275 of the SFA by a Relevant Person which is:
(i) a corporation (which is not an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”)), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(ii) a trust (where the trustee is not an Accredited Investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, shares, debentures and units of shares and debentures of that corporation and the beneficiaries’ rights and interests (howsoever described) in that trust shall not be transferred for six months after that corporation or that trust has acquired the Program Securities pursuant to an offer made under Section 275 of the SFA except:
(A) to an Institutional Investor, a Relevant Person, or any person pursuant to an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(i)(B) of the SFA (in the case of that trust);
(B) where no consideration is or will be given for the transfer;
(C) where the transfer is by operation of law;
(D) pursuant to Section 276(7) of the SFA; or
(E) as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
(h) The Program Securities may not be offered or sold, directly or indirectly, in or from Switzerland except in circumstances that will not result in the offer of the Program Securities being a public offering in Switzerland within the meaning of the Swiss Federal Code of Obligations (“CO”). Neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering or marketing material relating to the Program Securities constitutes a prospectus as that term is understood pursuant to Article 652a or 1156 CO or a listing prospectus pursuant to the listing rules of SIX Swiss Exchange, and neither the free writing prospectus relating to the Program Securities, the Prospectus nor any other offering material relating to the Program Securities may be publicly distributed or otherwise made publicly available in Switzerland. The Program Securities are not authorized by or registered with the Swiss Financial Market Supervisory Authority as a foreign collective investment scheme. Therefore, investors do not benefit from protection under the Swiss Federal Act on Collective Investment Schemes or supervision by the Swiss Financial Market Supervisory Authority.
(i) Without prejudice to the provisions of this Section 7 above, you will not purchase, deliver, offer or sell any Program Securities, or possess or distribute offering material in relation to such Program Securities, in any jurisdiction if such purchase, delivery, offer or sale or the possession or distribution of such offering material would not be in compliance with any applicable law or regulation or if any consent, approval or permission is needed for such purchase, delivery, offer or sale or the possession or distribution by you or for or on behalf of the Company unless such consent, approval or permission has been previously obtained. Without prejudice to the provisions of this Section 7 above and subject to the obligations of the Company set forth in Section 3 of this Agreement, the Company shall have no responsibility for, and you will obtain, any consent, approval or permission required by you for the subscription, offer, sale or delivery by you of Program Securities, or the possession or distribution of any offering materials, under the laws and regulations in force in any jurisdiction to which you are subject or in or from which you make any subscription, offer, sale or delivery.
Appears in 1 contract
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally a) The Initial Purchaser represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made offered or sold, and it will not offer or sell, the Purchased Notes to any person who is not an Eligible Investor meeting the requirements of clauses (i)(A), (i)(B) and (ii) of the definition thereof.
(a) The Initial Purchaser represents and warrants that it is (i) an Institutional Accredited Investor and (ii) a QIB/QP.
(b) The Initial Purchaser represents that it has not solicited any offer to buy or offered, and agrees that it will not solicit any offer to buy or offer, the Purchased Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) under the Securities Act).
(c) The Initial Purchaser represents that it has not engaged and agrees that it, its affiliates and any person acting on its or their behalf, will not engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Purchased Notes, and that it has complied and will comply with the applicable offering restriction requirements of Regulation S.
(d) The Initial Purchaser represents and agrees that it has not make an offered or sold, and that it will not offer of or sell, the Securities which are the subject of the offering contemplated by the prospectus supplement Purchased Notes to the public in that Relevant Member State other than:the Cayman Islands.
(ae) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to 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 written consent of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally The Initial Purchaser represents and agrees that:
that (ai) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue or sale of the Securities any Notes in circumstances in which Section 21(1) of the FSMA would does not apply to the IssuerCo-Issuers; and
and (bii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom.
(f) The Initial Purchaser represents that it has complied and will comply with all requirements of U.S. federal and state law, and all regulatory rules and procedures with respect to anti-money laundering obligations and know your customer obligations as they relate to the offer and sale of the Notes, including without limitation, applicable rules and regulations under the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended).
(g) The Initial Purchaser acknowledges and agrees that any purchases, placements and resales of the Purchased Notes by it are restricted as described under “Transfer Restrictions” in the Offering Document and the Indenture.
(h) The Initial Purchaser represents and agrees that it is not a retirement plan or other plan that is subject to Section 406 of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any entity whose underlying assets include “plan assets” by reason of such plan investment in the entity, or a governmental, church non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
(i) The Initial Purchaser represents and agrees that: (i) the Offering Document has not, and no prospectus or other disclosure document in relation to the Notes has been, lodged with or registered by the Australian Securities and Investments Commission (“ASIC”); and (ii) it has not offered for subscription or purchase or issued invitations to subscribe for or buy, or made or invited applications for an offer of the Notes for issue, sale or purchase, nor has it sold the Notes, and it will not offer for subscription or purchase or issue invitations to subscribe for or buy, or make or invite applications for an offer of the Notes for issue, sale or purchase, nor will it sell the Notes, and it has not distributed and will not distribute any draft, preliminary or definitive offering memorandum or circular, advertisement or other offering material relating to the Notes (including the Offering Document), in each such case in the Commonwealth of Australia, its territories or possessions, unless (A) the minimum aggregate consideration payable by each offeree is a minimum amount of A$500,000 (calculated in accordance with section 708(9) of the Corporations Act and Regulation 7.1.18 of the Corporations Regulations 2001(Cth)) or the offer, invitation or issue is otherwise an offer, invitation or issue for which no disclosure is required pursuant to Part 6D.2 of the Corporations Act; (B) the offer or invitation is not made to a person who is a “retail client” within the meaning of section 761G of the Corporations Act; and (C) the offer, invitation or distribution complies with all applicable laws, regulations and directives (including, without limitation, the licensing in Chapter 7 of the Corporations Act 2001 (Cth)) and does not require any document to be lodged with ASIC.
(j) The Initial Purchaser represents and agrees that (i) the Notes may only be offered in the Republic of Austria in compliance with the provisions of the Austrian Capital Market Act and other laws applicable in the Republic of Austria governing the offer and sale of the Notes in the Republic of Austria; and (ii) the recipients of the Offering Document and other selling material in respect of the Notes have been individually selected and identified before the offer being made and are targeted exclusively on the basis of a private placement; and (iii) the Notes have not been, must not be and are not being offered or advertised publicly or offered similarly under either the Capital Market Act, the Investment Funds Act or any other securities regulation in Austria; and (iv) any offers of the Notes have not been made and no offer of the Notes will be made to any persons other than the recipients to whom the Offering Document is personally addressed.
(k) The Initial Purchaser represents and agrees that any offer, or any actions which could be deemed an offering according to the Swedish Financial Instruments Act, performed by the Initial Purchaser has been made and will be made in accordance with the relevant exemptions under the Swedish Financial Instruments Act, in order to ensure that no Notes are offered or sold in such a manner that would require the registration of a prospectus by the Swedish Financial Supervisory Authority under the Swedish Financial Instruments Act.
(l) The Initial Purchaser represents and agrees that:
(i) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EEA Retail Investor in the European Economic Area. For the purposes of this provision:
Appears in 1 contract
Sources: Note Purchase Agreement (Palmer Square Capital BDC Inc.)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), ) it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorised or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any 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 more than 100, or, if the Relevant Member State has implemented the relevant provision €43,000,000 and (3) an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Underwritersshown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of the Securities shall which do not require the Parent Guarantor, publication by the Issuer or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities notes to the public” 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 for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/2003/71/ 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. Each Underwriter further severally represents and agrees that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇A▇▇ ▇▇▇▇ (“FSMA”)) received by it in connection with the issue or sale of the Securities notes in circumstances in which Section 21(1) of the FSMA would not, if the Issuer was not an authorised person, apply to the IssuerCompany; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities notes in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Prologis)
Offering Restrictions. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities which are the subject of the offering contemplated by the prospectus supplement to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100, or, if the Relevant Member State has implemented the relevant provision The following representations and agreements of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in Initial Purchaser shall apply only to Purchased Notes and the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior written consent following representations and agreements of the Underwriters; or
(c) in any other circumstances falling within Article 3(2) Placement Agent shall apply only to the Placed Notes. Each of the Prospectus Directive; provided that no such offer of the Securities shall require the Parent Guarantor, the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of the Securities to the public” 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 Initial Purchaser and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, 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. Each Underwriter further severally Placement Agent represents and agrees that:
(ai) it has not offered or sold, and it will not offer or sell, the Notes to any person who is not an Eligible Investor;
(ii) it is (i) an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and (ii) a QIB/QP;
(iii) it has not solicited any offer to buy or offered, and agrees that it will not solicit any offer to buy or offer, the Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) under the Securities Act);
(iv) it has not engaged and agrees that it, its affiliates and any person acting on its or their behalf, will not engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Notes, and that it has complied and will comply with the applicable offering restriction requirements of Regulation S;
(v) [reserved];
(vi) it (I) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ Act 2000 (“FSMA”)) received by it in connection with the issue issuance or sale of the Securities any Notes in circumstances in which Section 21(1) of the FSMA would does not apply to the Issuer; and
and (bII) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom;
(vii) it will comply with all requirements of U.S. federal and state law, and all regulatory rules and procedures with respect to anti-money laundering obligations and know your customer obligations as they relate to the offer and sale of the Notes, including without limitation, applicable rules and regulations under the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended);
(viii) that any purchases, placements and resales of the Notes by it are restricted as described under “Transfer Restrictions” in the Offering Document and the Indenture;
(ix) it is not a retirement plan or other plan that is subject to Section 406 of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any entity whose underlying assets include “plan assets” by reason of such plan investment in the entity, or a governmental, church non-U.S. or other plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code;
(x) (I) the Offering Document has not, and no prospectus or other disclosure document in relation to the Notes has been, lodged with or registered by the Australian Securities and Investments Commission (“ASIC”); and (II) it has not offered for subscription or purchase or issued invitations to subscribe for or buy, or made or invited applications for an offer of the Notes for issuance, sale or purchase, nor has it sold the Notes, and it will not offer for subscription or purchase or issue invitations to subscribe for or buy, or make or invite applications for an offer of the Notes for issuance, sale or purchase, nor will it sell the Notes, and it has not distributed and will not distribute any draft, preliminary or definitive offering circular or memorandum, advertisement or other offering material relating to the Notes (including the Offering Document), in each such case in the Commonwealth of Australia, its territories or possessions, unless (A) the minimum aggregate consideration payable by each offeree is a minimum amount of A$500,000 (calculated in accordance with section 708(9) of the Corporations Act and Regulation 7.1.18 of the Corporations Regulations 2001(Cth)) or the offer, invitation or issue is otherwise an offer, invitation or issue for which no disclosure is required pursuant to Part 6D.2 of the Corporations Act; (B) the offer or invitation is not made to a person who is a “retail client” within the meaning of section 761G of the Corporations Act; and (C) the offer, invitation or distribution complies with all applicable laws, regulations and directives (including, without limitation, the licensing in Chapter 7 of the Corporations Act 2001 (Cth)) and does not require any document to be lodged with ASIC;
(xi) (I) the Notes may only be offered in the Republic of Austria in compliance with the provisions of the Austrian Capital Market Act and other laws applicable in the Republic of Austria governing the offer and sale of the Notes in the Republic of Austria; and (II) the recipients of the Offering Document and other selling material in respect of the Notes have been individually selected and identified before the offer being made and are targeted exclusively on the basis of a private placement; and (III) the Notes have not been, must not be and are not being offered or advertised publicly or offered similarly under either the Austrian Capital Market Act, the Investment Funds Act or any other securities regulation in Austria; and (IV) any offers of the Notes have not been made and no offer of the Notes will be made to any persons other than the recipients to whom the Offering Document is personally addressed;
(xii) any offer, or any actions which could be deemed an offering according to the Swedish Financial Instruments Trading Act, performed by the Initial Purchaser or the Placement Agent (as applicable) has been made and will be made in accordance with the relevant exemptions under the Swedish Financial Instruments Trading Act, in order to ensure that no Notes are offered or sold in such a manner that would require the registration of a prospectus by the Swedish Financial Supervisory Authority under the Swedish Financial Instruments Trading Act;
(xiii) [reserved];
(xiv) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision: (a) the expression “EU retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of ▇▇▇▇▇ ▇▇; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes; and
(xv) at or prior to confirmation of sale of any Notes in reliance on Regulation S, it will have sent to each distributor, dealer or other person to which it sells such Notes during the distribution compliance period (as defined in Regulation S) a written confirmation or notice to substantially the following effect: “The Notes covered hereby have not been and will not be registered under the U.S. Securities Act and may not be offered, sold, resold, delivered or transferred within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the Closing Date and the commencement of the offering of the Notes, except in accordance with Regulation S or Rule 144A under the U.S. Securities Act. Terms used above have the meanings given to them by Regulation S under the U.S. Securities Act.”
Appears in 1 contract
Sources: Note Purchase and Placement Agreement (Apollo Debt Solutions BDC)