Part A: representations by the existing sn holder and nominated recipient and/or Nominated Participant
1 Definitions
“Relevant Person” means (i) the Existing SN Holder; (ii) its Nominated Recipient(s) (if appointed); or (iii) its Nominated Participant (if appointed), as the case may be, giving the representations.
2 Securities Law Confirmations
Each Relevant Person that is subscribing for Exchanged Notes and/or New Money Notes and/or New Holdco Shares (or is acting for the account or benefit of) another person, prior to accepting delivery of Exchanged Notes and/or New Money Notes and/or New Holdco Shares, will be required to represent and warrant to the Plan Company, the Information Agent and the Holding Period Trustee on behalf of itself and each other person or account for which it is acting that:
(i) is either (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or (y) a non-“U.S. person” (as defined in Regulation S under the Securities Act) located and resident outside the United States;
(ii) is not a retail investor in the European Economic Area (defined as a person who is one (or more) of: (x) a retail client as defined in point (11) of Article 4(1) of MiFID II; or (y) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (z) a person that is not a qualified investor as defined in the Prospectus Regulation);
(iii) is not a retail investor in the UK (defined as a person who is one (or more) of: (x) a retail client, as defined in point (8) of Article 2 of
Regulation (EU) No. 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018, as amended (the “EUWA”); (y) a customer within the meaning of the provisions of the UK Financial Services and Markets Act 2000, as amended (the “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, 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 by virtue of the EUWA; or (z) not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part of domestic law by virtue of the EUWA);
(iv) is an institution which (a) is a sophisticated institutional investor and (b) has such knowledge and experience in financial and business matters and expertise in assessing credit and equity risk and is capable of evaluating the merits and risks of supporting the Restructuring Plan and making an investment in the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares (and has sought such accounting, legal, tax and other advice as it has considered necessary to make an informed investment decision);
(v) is a “qualified investor” as defined in the Prospectus Regulation (including as the same forms part of domestic law in the UK by virtue of the EUWA) and understands it must only transfer in the EEA area or the UK to other “qualified investors” or otherwise pursuant to an exemption from publishing a prospectus as set out in the Prospectus Regulation or in the UK, section 86 of FSMA;
(vi) has the power and capacity to hold the Exchanged Notes and/or the New Money Notes and/or the New Holdco Shares and there is no
restriction in its constitution or under applicable law, regulation or regulatory policy applicable to it which would prohibit it from doing so;
(vii) understands that
(i) any holding of Exchanged Notes and/or New Money Notes and/or the New Holdco Shares involves a high degree of risk,
(ii) in the future, the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares may significantly decrease in value, and
(iii) no guarantees or representations have been made or can be made with respect to the future value of such instruments or the future profitability or success of the business of the Restructured Group;
(viii) will hold its entitlement to the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares for its own account for investment only and not with a view to, or for sale in connection with, any distribution of the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares in violation of the Securities Act, or any rule or regulation under the Securities Act, and it has not been formed for the specific purpose of acquiring the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares;
(ix) became aware of the issuance of the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares, and its entitlement to the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares that are proposed to be issued to it, solely by means of direct contact between it and the Group, and not by any other means, and it did not become aware of the proposed issuance of the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares, or of its entitlement to the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares proposed to be issued to it, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S under the Securities Act or by means of a general solicitation or general advertisement;
(x) (i) has received and read the Explanatory Statement (including, but not limited to, the financial information set forth or incorporated by reference therein) and understands and acknowledges that, as the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares are being issued or placed in a private transaction, it is responsible for conducting its own due diligence in connection therewith and any acquisition of Exchanged Notes and/or New Money Notes and/or the New Holdco Shares by it and (ii) has had a satisfactory opportunity to ask questions and receive answers concerning the terms and conditions of the Restructuring Plan and the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares as it has deemed necessary to conduct its own due diligence and make an informed investment decision and has had full and free access and opportunity to inspect, review, examine and inquire about all financial and other information concerning the Restructured Group;
(xi) is aware of the Group’s business affairs and financial condition and has acquired sufficient information about the Group to permit it to evaluate the merits and risks of its investment in the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares and to reach an informed and knowledgeable decision about whether to acquire the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares;
(xii) understands that the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares will not be registered under the Securities Act nor qualified under the Trust Indenture Act of 1939, as amended, in each case, by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of its investment intent as expressed herein;
(xiii) acknowledges that the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares will be sold and issued in reliance on applicable exemptions from the registration requirements of the Securities Act, including, without limitation, Section 4(a)(2) of the Securities Act or the provisions of Regulation S under the Securities Act, and upon exemptions from registration under any applicable state “blue sky” laws;
(xiv) understands that any Exchanged Notes and/or New Money Notes and/or the New Holdco Shares sold and issued in reliance on Section 4(a)(2) of the Securities Act are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, such securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available;
(xv) understands that the Group would not be under any obligation to register or qualify the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares for resale;
(xvi) understands that, if an exemption from registration or qualification under the Securities Act or U.S. federal and state securities laws is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares, and requirements relating to the Group which are outside of its control, and which the Group would not be under any obligation (and may not be able) to satisfy;
(xvii) understands that no public market now exists for the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares, and that the Group has not made any assurances that a public market will ever exist for the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares;
(xviii) would be able to afford a complete loss of the value of the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares
and would be able to bear the economic risk of holding such securities for an indefinite period;
(xix) has had an opportunity to consult with its own tax counsel as to the U.S. federal, state, local and foreign tax consequences of receiving Exchanged Notes and/or New Money Notes and/or the New Holdco Shares as contemplated hereunder and independent legal counsel regarding its rights and obligations under the Restructuring Plan, and fully understands the terms and conditions contained herein;
(xx) is not relying on the Group or any of their affiliates’ or related entities’ employees, agents or representatives with respect to the legal, tax, economic, and related considerations of its investment in the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares;
(xxi) understands and acknowledges that no member of the Group has provided it with any information or advice with respect to the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares and no member of the Group has made or makes any representation as to the credit quality of the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares or of the Group;
(xxii) acknowledges and agrees that the Exchanged Notes and/or New Money Notes and/or the New Holdco Shares (as applicable) may be issued in a certificated registered form and that certificate will bear appropriate legends, including a legend in substantially the following form:
“THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘U.S. SECURITIES ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT.”
“THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT (‘‘RULE 144A’’)) (B) IT IS A NON-U.S. PERSON ACQUIRING THIS SECURITY PURSUANT TO REGULATION S UNDER THE U.S. SECURITIES ACT, (2) AGREES THAT IT WILL NOT, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’) WHICH IS [IN THE CASE OF THE RULE 144A Exchanged NOTES and the rule 144A New Money Notes: ONE YEAR] [IN THE CASE OF REGULATION S Exchanged NOTES and Regulation S New Money Notes: 40 DAYS] (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY [RULE 144] [REGULATION S] UNDER THE U.S. SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OFFER, SELL, ASSIGN OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER, THE GUARANTORS OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE Exchanged NOTES, THE NEW MONEY NOTES OR THE New Holdco Shares ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE ASSIGNMENT OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE FOREIGN OR STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE AGENT’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE, ASSIGNMENT OR TRANSFER (I) PURSUANT TO CLAUSES (C), (D) AND (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.’’;
(xxiii) understands that the foregoing representations, warranties, agreements and acknowledgements are required in connection with United States and other securities laws and that the Group and its respective legal advisors and others will rely upon the truth and accuracy of the foregoing acknowledgements, representations and agreements; and
(xxiv) is not a Disqualified Person.
3 Other Jurisdictions
Each Relevant Person (and any person acting on its behalf):
(a) represents and warrants that, if it is outside the United States, it has read the Explanatory Statement in its entirety;
(b) if it is in the United Kingdom, represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Criminal Justice Act 1993, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and, if it is making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the regulations; and
(c) confirms that it (i) has not circulated any invitation to acquire or apply for any of the Exchanged Notes or the New Money Notes or the New Holdco Shares in any manner such that such invitation constitutes a prospectus the circulation of which requires the consent of the Registrar of Companies in Jersey under the Companies (General Provisions) (Jersey) Order 2002, and (ii) will not circulate any such invitation unless such consent has first been obtained and remains in effect.
PART B: OTHER SECURITIES LAW CONSIDERATIONS
1 European Economic Area (EEA) and the UK
The Rule 144A Exchanged Notes, Rule 144A New Money Notes, Regulation S Exchanged Notes and Regulation S New Money Notes are not being made available to and should not be made available to any retail investor in the EEA or the UK. For these purposes, a “retail investor” in the EEA means a person who is one (or more) of: (i) a “retail client” as defined in point (11) of Article 4(1) of MiFID II; or (ii) a customer within the meaning of the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) a person that is not a qualified investor as defined in the Prospectus Regulation. Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Rule 144A Exchanged Notes, Rule 144A New Money Notes, Regulation S Exchanged Notes and Regulation S New Money Notes or otherwise making them available to retail investors in the EEA will be prepared and therefore offering or selling the Rule 144A Exchanged Notes, Rule 144A New Money Notes, Regulation S Exchanged Notes and Regulation S New Money Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation. For these purposes, a “retail investor” in the UK means a person who is one (or more) of: (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) Act 2018, as amended (the “EUWA”); (ii) a customer within the meaning of the provisions of the UK Financial Services and Market Act 2000, as amended (the “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, 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 United Kingdom by virtue of the EUWA; or (iii) a person that is not a qualified investor as defined in Article 2 of the Prospectus Regulation as it forms part of domestic law in the United Kingdom by virtue of the EUWA). Consequently, no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic law by virtue of the EUWA (the “UK PRIIPs Regulation”) for offering or selling the Exchanged Notes or New Money Notes or otherwise making them available to retail investors in the UK has been prepared and, therefore, offering or selling the Exchanged Notes or New Money Notes or otherwise making them available to any retail investor in the UK may be unlawful under the UK PRIIPs Regulation.
2 General
2.1 The implications of the Restructuring Plan for Plan Creditors who are resident in, have a registered address in or are citizens of and/or are taxable in jurisdictions other than the United Kingdom may be affected by the laws of the relevant jurisdiction. Such overseas Plan Creditors should inform themselves about and observe any applicable legal requirements. Any person outside the United Kingdom who is resident in, or who has a registered address in, or is a citizen of and/or is taxable in, an overseas jurisdiction and who is to receive or subscribe for any Plan Consideration should consult his or her professional advisers and satisfy himself or herself as to the full observance of the laws of the relevant jurisdiction in connection with the Restructuring Plan, including obtaining any requisite governmental or other consents, observing any other requisite formalities and paying any issue, transfer or other taxes due in such jurisdiction.
2.2 In the absence of bad faith, none of the Plan Company, the Existing SN Trustee, the Security Agent, the Information Agent, the Holding Period Trustee or any person appointed to distribute the Plan Consideration shall have any Liability for any loss or damage arising as a result of the timing or terms of such a sale or as a result of any remittance made pursuant to such distribution.
3 Non-Eligible Persons
Without limiting the information set out in the “Important Notice” section of the Explanatory Statement, the Exchanged Notes, the New Money Notes and the New Holdco Shares will not be issued to a Plan Creditor (or if appointed, its Nominated Recipient) pursuant to the Restructuring Plan on the Restructuring Effective Date where such a Plan Creditor (or its Nominated Recipient and/or Nominated Participant) is not an Eligible Person.
4 Plan Consideration under the Restructuring Plan
Each Existing SN Holder and/or its Nominated Recipient(s) shall be entitled to receive its Plan Consideration on the Restructuring Effective Date in accordance with the provisions of the Restructuring Plan, save that such Plan Consideration may be withheld from being distributed to a Plan Creditor (or its Nominated Recipient(s)) on the Restructuring Effective Date if the Information Agent does not receive a validly completed Account Holder Letter from that Plan Creditor and all of the information, representations, confirmations and any other documentation required to be provided therein, or if satisfactory “know-your-customer” information has not been provided in form and substance satisfactory to the New Holdco Company Secretary.
NONE OF THE SECURITIES REFERRED TO IN THIS Securities Confirmation SHALL BE SOLD, ISSUED OR TRANSFERRED IN ANY JURISDICTION IN CONTRAVENTION OF APPLICABLE LAW.