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:
(I)
TO LEGAL ENTITIES WHICH ARE AUTHORIZED OR REGULATED TO OPERATE IN
THE FINANCIAL MARKETS OR, IF NOT SO AUTHORIZED OR REGULATED, WHOSE CORPORATE
PURPOSE IS SOLELY TO INVEST IN SECURITIES;
(II)
TO ANY LEGAL ENTITY WHICH HAS TWO OR MORE OF (A) AN AVERAGE OF AT
LEAST 250 EMPLOYEES DURING THE LAST FINANCIAL YEAR; (B) A TOTAL BALANCE SHEET OF
MORE THAN €43,000,000 AND (C) AN ANNUAL NET TURNOVER OF MORE THAN €50,000,000,
AS SHOWN IN ITS LAST ANNUAL OR CONSOLIDATED ACCOUNTS; OR
(III)
IN ANY OTHER CIRCUMSTANCES WHICH DO NOT REQUIRE THE PUBLICATION
BY THE ISSUER OF A PROSPECTUS PURSUANT TO ARTICLE 3 OF THE PROSPECTUS DIRECTIVE.
For the purposes of this representation, the expression an "offer of the
Securities to the public" in any Relevant Member State means the communication
in any form and
25
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 to the Securities, as the same may be varied in that Relevant Member
State by any measure implementing the Prospectus Directive in that Relevant
Member State and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
(F)
THE INITIAL PURCHASER ALSO REPRESENTS AND AGREES THAT THAT IT
WILL NOT OFFER OR SELL ANY SECURITIES, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO,
OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS
ANY PERSON RESIDENT IN JAPAN, INCLUDING ANY CORPORATION OR OTHER ENTITY
ORGANIZED UNDER THE LAWS OF JAPAN), OR TO OTHERS FOR RE-OFFERING OR RESALE,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN, EXCEPT PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE
WITH, THE SECURITIES AND EXCHANGE LAW AND ANY OTHER APPLICABLE LAWS, REGULATIONS
AND MINISTERIAL GUIDELINES OF JAPAN.
(G)
THE INITIAL PURCHASER ALSO REPRESENTS AND AGREES THAT IT HAS NOT
MADE AND, UNLESS IT OBTAINS THE PRIOR CONSENT OF THE PARENT COMPANIES AND THE
CO-ISSUERS, WILL NOT MAKE ANY OFFER RELATING TO THE SECURITIES THAT WOULD
CONSTITUTE A FREE WRITING COMMUNICATION, IT BEING UNDERSTOOD THAT A FREE WRITING
COMMUNICATION THAT (I) CONTAINS ONLY INFORMATION THAT DESCRIBES THE FINAL TERMS
OF THE SECURITIES OR THEIR OFFERING AND THAT IS INCLUDED IN THE OFFERING
MEMORANDUM OR (II) DOES NOT CONTAIN ANY MATERIAL INFORMATION ABOUT THE
CO-ISSUERS OR THEIR SECURITIES THAT WAS PROVIDED BY OR ON BEHALF OF THE
CO-ISSUERS, SHALL NOT BE AN ISSUER FREE WRITING COMMUNICATION FOR PURPOSES OF
THIS AGREEMENT.
3.
Delivery of and Payment for the Securities
(A)
DELIVERY