Di Nicola Grieco, Avvocato
14 novembre 2005
This brief note outlines the relevant applicable Laws in structuring a Medium-Term Note Program under U.S. Securities Laws. It is not be intended legally binding and does not contain any formal and definitive information regarding those Laws .It does not guarantee the completeness of the information hereinafter. The bodies of U.S. Securities Laws that are most relevant for the purpose of this note are: the Securities Act of 1933 (the“1933 Act”) and the Securities Exchange Act (the “1934 Act”), respectively as amended, updated and-or supplemented from time to time and the rules and regulations promulgated thereunder by the U.S. Securities and Exchange Commission.
The 1933 Act broadly regulates the sale and distribution of the securities describing a disclosure system for the securities offerings. Basically, it provides a registration with the U.S. Securities and Exchange Commission (“SEC”) of all securities to be offered or sold in the U.S. market unless an exemption is available.
The 1933 Act has two basic objectives: require that investors receive financial and other significant information concerning securities being offered for public sale; and prohibit deceit, misrepresentations and other fraud in the sale of securities.
The 1934 Act regulates principally the second market and in particular the trading of securities, tender offers, brokers, agents or dealers and the extension of credit for purchasing the securities.
It determines furthermore a constant disclosure system for Issuer(s) whose securities are traded in the U.S. market or over the counter (OTC market).
Both the securities Act provide in general a civil liability in case of a fraudulent or deceptive practice in relation to the sale of securities and any material misstatement or omission in the disclosure documents.
Moreover, the willful violation of the rules contained in these statutes represents a criminal offense.
The organization of this note will be following largely this structure: 1.Definition of Securities;2. Exemption from SEC registration: Regulation D, Regulation S and Rule 144 A.; 3.Medium-Term Notes Program; 4.Prospectus or Offering Memorandum; 5.Description of the Notes; 6.Distribution Agreement; 7. Indenture;8.Issuing and Paying Agency Agreement;9. Comfort Letter; 10.Listing and settlement; 11.Final considerations.
1. Definition of Securities
The issue of what is a security is one of the most interesting in securities law. The section 2(a) (1) of the 1933 Act provides:
“When used in this title, unless the context otherwise requires, the term “security” means any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.”
In particular, it is very controversial if an investment contract could be considered a security and the spectrum in the phrase “ unless the context otherwise requires” because this language offers a great exclusiveness in terms of definition of securities.
The U.S. Supreme Court has held that the exact definition of a security depends on the context and the economic reality in which the investment instrument is offered and sold to determine whether it may be considered a security.
However, the bulk of this section is clear and many questions regarding whether a security exists for the purposes of the 1933 Act can be answered only by reference to that section.
In particular, notes issued by foreign Issuer(s) would be considered a security for the purposes of the 1933 Act and the 1934 Act.
2. Exemption from SEC registration.
The 1933 Act exempts from registration certain types of securities such as commercial papers and certain types of offerings such as private placements.
Broadly, the exemption from 1933 Act ‘s registration requirements are found in sections 3 and 4. We will be describing only the rationale of the relevant Rules for our purpose i.e. Regulation D, Regulation S and Rule 144A.
Regulation D is an interesting amalgam. It contains three Rules 504, 505 and 506 that describe information and establish requirements for the exemption from registration. Those requirements vary with the exemption used and depend – amongst other things- on the nature of both the Issuer(s) and the Investors.
Furthermore, the aggregate amount of the offering price becomes relevant for purposes of the requirements to be met to benefit from the exemption. Note, for instance, that when the dollar limit is relatively low ( USD 1 million under Rule 504) the requirements and the limitations are fewer.
Another interesting requirements is represented by the number of Investors that in case of Rule 504 is unlimited, pursuant to the Rules 505 and 506 is 35 plus unlimited accredited Investors.
In April 1990 the SEC adopted Regulation S. It consists of a general statement on the scope of the registration requirements contained in section 5 of the 1933 Act, an Issuer(s) safe harbor and a resale safe harbor.
In accordance with the general statements, offers and sales made outside the United States will not trigger the registration requirements of the 1933 Act. Additionally, the SEC established certain criteria to be considered from time to time to determine whether an offer or a sale occurred outside the United States.
We want to outline some general conditions which must be satisfied for any offering complying with the Issuer(s) safe harbor. Each offer or sales must be made in an offshore transaction.
Such requirements means that an offer must not be made to a person located in United States and that when the buy order is originated the buyer must be, or the seller believes that the buyer is, outside the United State. Moreover, the transaction has to be executed through a physical trading floor of an established foreign securities exchange that is located outside the United States.
The further requirement is that no directed selling efforts must be made in the United States.
Directed selling efforts include activities such as promotional seminars or advertisements in the United States, undertaken for the purposes of conditioning the United States market for the securities offered.
The Issuer(s) safe harbor establishes three categories of offerings, each of applicable restrictions based on certain factors such as the nationality or the reporting status of the Issuer(s), the degree of the United States market interest in the Issuers’ securities and the type of offering. They are essentially three categories: in general Category 1 requires only compliance with the general conditions (as described before), Category 2 and 3 require, in addition to the general conditions, offering restrictions to be implemented and certain transactional restriction to be followed. In particular Category 2 for instance requires that distributors agree in writing that all offers and sales of securities made prior to 40 days following the closing (so-called distribution compliance period) be made only in accordance with Issuer(s) safe harbor or in accordance with the applicable exemption under the 1933 Act.
Each Issuer(s) can choose the least restrictive category available for its particular offerings.
Rule 144A provides a non-exclusive safe harbor for re-sales of certain categories of securities without registration by persons other than the Issuer(s) to ‘ qualified institutional buyers (as known as QIBs in the market’). Pursuant to this exemption, persons other than the Issuer and dealers who offer and resell securities are deemed not to be engaged in a distribution and not to be underwriters within the meaning of section 2(a)(11) of the 1933 Act.
Rule 144a provides both a procedure for the distribution of securities to QIBs and a special regime for secondary market among QIBs. Issuer(s) may privately place securities with securities professional who in turn may in accordance with Rule 144A immediately resell the restricted securities in a distribution to QIBs.
They can, in turn, resell the Rule 144A securities to other QIBs through screen-based closed trading systems for Rule 144A securities such as PORTAL (the Private Offerings, resale and trading through Automated Linkages System) created and governed by the NASD.
To the extent made pursuant to the requirements of Rule 144A, none of these offers, resales or sales would require a registration pursuant to the 1933 Act. Rule 144A offerings can assume two different meanings. For this purpose we want to underline that the establishment of private placement in this regard is very particular because with the use of an offering prospectus, road shows and similar marketing efforts, it can look from a market perspective, more like an institutional public offering than a traditional private placement.
The SEC adopted the Rule 135 c in this regard. Pursuant this rule an Issuer(s) (including foreign Issuer(s)) has to give notice that an unregistered offering is not to be intended as an offer in the United States. This notice has to specify that the securities are not being registered in the United States and they may not be offered or sold in the United States without such registration or an exemption therefrom.
3. Medium-Term Note Programs
In general, Medium-term Note Programs (“MTNs”) enable the Issuer(s) to offer debt securities on an on-going basis according to market demand and the Issuer’s needs. MTNs were first used by finance company subsidiaries of automobile manufactures and then developed by the commercial paper departments of the investment banks.
They basically provide the flexibility to issue securities with maturities that range from nine months to thirty years or more, albeit they are mostly issued with maturities of two to five years.
Traditionally the MTNs are fixed-rate, non-redeemable senior debt security. However, almost all MTNs provide the flexibility to issue other types of debt securities such as floating rate, zero coupon, multi currency. Furthermore many MTNs permit takedowns denominated in non-U.S. currencies. MTNs could be rated by at least one nationally recognized rating agency although rating is not strictly required by Securities Laws.
The rationale for the establishment of MTN Programs is that they allow the Issuer(s) to offer and sell a wide range of debt securities, with various amount and maturities, without the need to go through the complex and long documentation for a stand alone issue of securities.
Each sale requires only that the terms of the notes have to be agreed on at the pricing (often done orally with a written confirmation), based on the Issuer’s need and market conditions. Such terms are contained in a so called Pricing supplement.
In Addition, the Issuer’s disclosure document must be updated at the timing of each issuance of notes.
Any such update has to be included in the Pricing supplement. Furthermore, on settlement of each takedown, the Issuer(s) and its external auditors and legal advisors must also deliver certain additional documents, including comfort letters, legal opinions and Officer’s certificates.
U.S. MTNs have also be developed on an unregistered, privately placed basis, particularly for foreign Issuer(s). Although finance companies were the only initial users of this type of Program, it provides an easy means for many other types of Issuers to access the capital markets.
However, the establishment of MTNs requires an elaborate documentation. In this regard, the relevant agreements are represented by: the Prospectus or Offering Memorandum, the distribution or underwriting agreement, the description of the Notes, the Indenture and the Issuing and Paying Agency Agreement.
We will be describing one by one only the main characters of each relevant document and-or agreement.
4. Prospectus or Offering Memorandum
The main disclosure document prepared by the Issuer(s) and, if applicable, the Guarantor, is the offering memorandum which is considered a prospectus under the US Securities Laws.
Pursuant to the section 2(a)(10) of the 1933 Act, any written offer, offer by radio or television or a confirmation of sale represents a prospectus. The Supreme U.S. Court clarified that any written offer could be considered a prospectus. It is particularly discussed if indirect offers such as an oral announcement by the president of an Issuer-company represent a prospectus.
Basically a prospectus for the establishment of MTNs is composed by the following parts.
The cover page contains all the legal denominations of the Issuer(s), the Guarantor (if any), the total amount of the Program, the clear indication of the duration of the notes issued thereunder, the arranger(s) name(s), the dealer(s) names and the date of the creation. If it has to be offered to the potential purchasers during for instance a roadshow, it must contain the clear information that it is not complete and may be changed. Furthermore it has to specify that is not an offer to sell securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or the sale is not permitted.
The prospectus itself describes the main risk factors for the potential Investors connected with investing in certain notes issued under the MTNs.
The business description regards essentially each of the Issuer and the Guarantor (if any). In particular the description of the history, the business, the names of the top Management, the Board of Directors and the indication of the rating(s) if any.
A Prospectus for a registered or 144A MTN must also contain the Management discussion and analysis of the financial condition and results of operations (as known as MD&A ) which essentially comments on the evolution of the individual items of the Issuer’s ( and the Guarantor’s as the case may be) income statement. This discussion is preceded by on a general analysis of the macroeconomic and market conditions affecting the Issuer. In addition, the Prospectus must disclose industry specific information, such as the Regulatory environment. Furthermore, Issuers operating in certain industries, such as banking Insurance, have additional disclosure obligations supplementing the normal financial information. All the relevant information contained in the Prospectus have to be accurate and not misleading.
The Issuer(s) are subject to strict liability for the material omissions and misstatement contained in the prospectus pursuant to Section 11 of the 1933 Act. Underwriters and Agents are also liable for any such misstatements and omissions, but can escape from such liability if they prove to have conducted reasonable investigation on the Issuer to prevent them. The reasonable investigation described in section 11(c) in particular is known as “due diligence investigation”. The purpose of this investigation is to create a prospectus which contains full and fair disclosure to shield the underwriters from liability.
This investigation can be carried out in different ways (depending upon the scope of different transactions) but the basic principles remain the same. There are no statutory guidelines in this regard, but the U.S. Court established certain procedures.
In the course of the due diligence investigation all the relevant parties will meet the Issuer(s) top management and external auditors to discuss the Issuer’s business and prospects either in person or through telephone calls. In addition the Issuer(s) and the Arranger(s) legal counsel will conduct a “corporate check” which involves the examination of the Issuer’s, Guarantor’s (if any) and all the relevant subsidiaries’ (with the meaning of 1933 Act) material contracts, reports from auditors, minutes of the Board of Directors and shareholders and more in general every key documents and committees.
Legal counsel for both the Issuer(s) and Agent(s) will normally be required to give a so called disclosure letter or 10b5 letter to the Agents stating in substance that their investigation has not revealed any material misstatement or omissions.
Pursuant to section 12(a)(2) of 1933 Act, a buyer of a security has a legal action against the seller who sold securities by means of a prospectus or oral communication where such prospectus or oral communication included untrue statement of material facts or omissions, unless the seller did not know about the untruth or omission.
5. Description of the Notes
The description of the Notes is the section of the Prospectus describing the specific terms of any issuance of Notes through a Pricing Supplement to be read in conjunction with the Prospectus.
It is incorporated by reference in the Prospectus but it is at the same time a document itself.
The terms and conditions detailed in this document are applicable to each of the issuance of the Notes under MTNS. These provisions describe each of the relevant terms applicable to different types of Notes such as senior or subordinates Notes.
However, it is possible to amend those general terms and conditions through specified provisions in the relevant Pricing Supplement.
A copy of the relevant Pricing supplement is always available at the office of the Principal Paying Agent and in case of listing of the notes at the office of the relevant Stock Exchange.
This document sets out the mechanics of the payment of the principal premium and the interest on the Notes.
The content of certain articles such as the description of the subordination and the taxation provisions depend upon the nationality of the Issuer.
Among others, the description of the notes may provide for the possibility of issuing subordinated notes. If the Issuer(s) or the Guarantor is a bank,these provisions will be need in compliance with the applicable regulatory capital provisions if the Issuer(s) intends to offer subordinated notes for the purpose of increasing its regulatory capital.
In case of an Italian Issuer(i.e. an Italian bank) e.g. the Istruzioni di Vigilanza of Bank of Italy amongst others will be applicable for the issuance of subordinates Notes.
6. Distribution agreement
The Distribution agreement establishes the relationship among the Issuer(s), the Guarantor (if any), the Arranger and the Co-Arranger (if any) and the other Agents and governs the mechanics of the distribution of the notes.
It represents the agreement pursuant to which the Issuer(s) may propose to issue from time to time Senior or subordinates Medium-Term Notes in an aggregate principal amount of up to an amount previously established by the Issuer(s) itself.
The relevant Issuer(s) will appoint each of the Agents either for the purpose of soliciting offers to purchase Notes or for the purpose of selling Notes. In this case, the relevant Agent will act as a principal for resale of the notes to other dealers or brokers and it will act pursuant to a Terms Agreement to be delivered to each of the Issuer(s) to confirm the oral agreement related to the issuance of certain Notes. Offers and sales of the notes must not engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the 1933 Act) or any directed selling efforts (as defined in Regulation S under the 1933 Act) in connection with any offer or sale of the Notes in the United States in order to benefit from the relevant exemptions from registration under the 1933 Act.
The Issuer, in turn, shall pay each of the Agents a commission for each issuance of the Notes in accordance with a percentage of the principal amount of such Notes at the time of the settlement.
In the Distribution Agreement, each Agent agrees that it will not solicit Offers or offer or sell Notes from any Person that is neither a “qualified institutional buyer” (“QIB”) within the meaning of Rule 144A in accordance with the 1933 Act nor an accredited investor (“Accredited Investor”) within the meaning of Rule 501(a) under the 1933 Act, or in a transaction involving the offer or sale of Notes in a principal amount of less than US$250,000 (or the equivalent thereof in one or more foreign currencies or currency units)
Distribution agreements traditionally contain representations and warranties running from the Issuer(s) to the Agents and the dealers.
A basic representation is given by the Issuer(s) to the effect that, at the time of the closing of the Program there are no misstatements of material fact or omissions in the Prospectus that can be considered misleading with the requirements of the 1933 Act.
Other representations of a legal nature are often included in this agreement such as those that relate to the due incorporation and good standing of the Issuer and its principal subsidiaries and their due qualification as foreign companies in the States in which it is required; the corporate authorizations to the issuance of the securities; and the absence of material lawsuits or governmental proceedings other than those clearly disclosed in the Prospectus.
Distribution agreements may contain such additional covenants of the Issuer(s) to be made on requesting as Agent to solicit Offers such as at the date of the subscription of the terms agreement there is no material adverse change in the condition ( financial or otherwise) business or prospects of the relevant Issuer(s) in the most recent annual financial statements of each the Issuer(s).
The Distribution agreement also regulates the various deliveries to be made by the Issuer(s) and the Guarantor (if any) in connection with the establishment of the Program.
Such deliveries include new Officer’s certificates, legal opinions, letters of the relevant counsels (e.g.Italian), letters of the independent external auditors and letters and opinion of United Stated legal counsels.
The Issuer(s) agree to indemnify and hold harmless each of the Agents against any losses, claims damages or liabilities incurred in case of any untrue or alleged untrue statement of material facts and omission contained in the Prospectus or in any amendment or supplement thereof.
Distribution agreements, at the end, contain other standard miscellaneous clauses such as termination, notices, applicable Laws jurisdiction and applicable foreign taxes. These clauses can be considered standard in the U.S. market.
The Trust Indenture Act of 1939 (as amended, updated and-or supplemented from time to time) was created by the U.S. Congress to protect U.S. investors in debt securities. The Indenture represents a basic element of securities offerings in the U.S. Market. Broadly, it sets out the relationship among the Issuer(s), the Guarantor (if any) and the Trustee.
There are two types of Indenture in U.S. Market: the so-called closed-end indenture, if it allows to a single offering and the so-called open-end indenture, if it refers to successive offerings.
The main provisions of the Indenture can be considered boilerplate because they are standardized in the U.S. market.
However, certain covenants and event of defaults relating to the Issuer(s) and the Guarantor (if any) are included.
Most indentures contain the negative pledge clause and cross default clause applicable to either the relevant Issuer(s) or to the Guarantor (if any).
Moreover, the extent of the covenants is determined – amongst other things – by the Issuer’s credit rating (if any).
In any case each of these provisions are subject to a negotiation by the relevant legal counsels.
The indenture describes, furthermore, the duties and responsibilities of the Trustee, its rights, compensation and reimbursement.
The Indenture is the functional US equivalent of the Trust Deed known in the UK practice.
8. Issuing and Paying Agency Agreement
The Issuing and Paying Agency agreement establishes the relation among the Issuer(s), the Guarantor (if any), the Trustee, (in its capacity as principal paying Agent, exchange agent and calculation agent), and each of the single Paying Agent to be determined in accordance with the relevant Stock Exchange (depending also on the number of jurisdictions in which the notes are expected to be issued)
It sets out various procedure and administrative matters in relation to payments to be made by the Issuer(s) in respect of an issuance of the Notes and provides for the commissions payable by the Issuer(s) in respect of such services.
The Principal Paying Agent and each of the relevant agent (e.g. a Luxembourg Agent in case of listing of the notes on the Luxembourg Stock Exchange) will submit the Pricing Supplement to the relevant Stock Exchange (to be determined from time to time) in name and on behalf of each of the relevant Issuer(s).
This agreement contains mainly standardized provisions in the U.S. practice.
9. Comfort letter
A comfort letter is a letter delivered by an independent Auditor firm to the Agent(s) and Board of Directors of the Issuer(s) mainly with regard to the financial information contained in a Prospectus.
The Agent(s) will receive this letter from the Issuer(s) ‘ independent accountants at the time of the execution of the distribution agreement. The distribution agreement will also require a bring-down letter from these auditors as a condition to closing. In the US, comfort letters are currently governed by the accounting profession’s Statement on Auditing Standards no. 72 as known as SAS 72, which was adopted in 1993 and amended in September 1995 by SAS 76.
A typical comfort letter contains the confirmation that the accountants are independent with the meaning of Regulation S-X, Rule 2.01 and confirm whether the audited financial statements included in the Prospectus comply as to form in all material respects with the accounting requirements applicable to the Issuer(s). There is no need for the comfort letter to reiterate the accountant’s report on the audited financial statements since that report is generally reproduced or is incorporated by reference in the prospectus. If unaudited interim financial statements are included in the prospectus, the comfort letter may express “ negative assurance” as to whether these statements comply with the SEC requirements (if applicable) and in particular as to whether they are in compliance with generally accepted accounting principles.
The negative assurance may occasionally extend to other financial information included or incorporated in the prospectus because of specific requirements of Regulation S-K (e.g. selected financial data, supplementary financial information).
It can also comment on tablets, statistics and other financial information.
In accordance with SAS 72, negative assurance with respect to changes can only be provided within 135 calendar days starting the date of the latest audited financial statements or the latest interim financial statements reviewed pursuant to SAS100. Outside of the 135 days, the independent auditors may not deliver a negative assurance statement through a so-called “ procedure” letter stating the procedure as negative assurance letter together with enquiries of the Management of the Issuer(s). In any event, the scope of comfort letters has to be agreed with the relevant Agent(s).
10. Listing and Settlement
In the United States securities are in general traded on Stock Exchange or over the counter (OTC markets). The most important stock exchange are the New York Stock Exchange and the American Stock Exchange but there are some other regional Stock Exchange. They have their own trading floors and are subject to the authority of the SEC and the Rules of the 1934 Act.
Securities trading on OTC markets has been developed by the establishment of National Association of Securities Dealers Automatic Quotation (NASDAQ) in 1971.It operates under SEC supervision.
Foreign Issuer(s) may provide in the relevant agreements of MTNs the possibility to choose European Stock Exchanges such as Luxembourg Stock Exchange for the listing of certain Notes.
In this case the Prospectus has to be approved by the relevant Stock Exchange.
The latter has to approve formally each Pricing supplement related to the Notes issued under MTN Program.
In the United States there are two types of clearing agencies that pursuant to 1934 Act have to be registered with the SEC: Depositaries, which are limited purpose trust companies and Clearing corporations, which are not trust companies.
Depositaries are basically custodian agents who perform confirmation procedures, security and money settlement, via book entry for dealer to costumer transactions.
Clearing Corporations match-record trades done between dealers, account for them and settle the inter-dealer security and money obligations. The leading securities clearing agencies have been the Depository Trust Company (“DTC”) whic was created in 1973.
Brokers, dealers, banks, mutual funds and financial intermediaries use the service of DTC either by keeping accounts in their facilities as direct participants or through correspondent relationships.
The main clearing agencies in Europe are Euroclear and Clearstream. They provide a number of services in addition to cleareance and settlement.
Yankee bonds i.e. offers in USD currency either registered with SEC or not, usually settle through DTC as well as Euroclear and Clearstream.
An offering of securities under Regulation S with no U.S. tranche would usually settle through Euroclear and Clearstream.
In debt offerings pursuant to 144A, consideration of clearing and settlement may be driven by the currency of the security, the location of the investors and the size of the transaction.
Non U.S.D. denominated notes usually settle through Euroclear and Clearstream for both U.S. and European Investors, in which case a global note will be deposited with the common depositary.
In general, U.S.D. denominated transactions usually settle through DTC for U.S. Investors and through Euroclear and Clearstream for European Investors, whereby the Rule 144A global note is held by and registered in the name of the DTC custodian and Regulation S global security deposited with a common depositary for Euroclear and Clearstream.
In any case, tax implications have to considered and examined in this regard.
11. Final considerations
MTN Programs are frequently promoted and administered by a specialty group within an investment banking firm who prefer to use a standard underwritten offering of notes or debentures.
Despite the availability of registration procedures, many U.S. domestic banks and branches and agencies of foreign banks continue to sell non-registered MTNs.
Based upon the foregoing, Unibanco – Uniao de Bancos Brasileiros S.A., acting through its Grand Cayman Branch, issued on 17 April 1998 ITL 200,000,000,000 7.50 per cent EURO- Fungible Notes due 2000 under the U.S. $ 2,000,000,000 Medium-Term Note Program.
Furthermore, Banco do Estado de Sao Paulo S.A.- BANESPA launched on 17 March 2003 a U.S. Global Medium -Term Note Program with an aggregate principal amount not exceeding U.S.$ 500,000,000.
This Program establishes that BANESPA may issue Notes acting through its principal office in Brazil and through its Cayman Islands Branch.
MTN Programs are currently in use in Europe.
HBOS p.l.c. established on 30 April 2003 an U.S. Medium Term Note Program with the aggregated principal amount of U.S.$ 65,000,000,000.
Similarly, Nationwide structured an U.S. Medium-Term Note Program on 30 November 2003.
Finally, on 8 April 2005, UniCredito Italiano S.p.A. launched an US MTN Program of U.S.$ 10,000,000,000.
 The term is also broadly defined in Section 3(a)(10) of the 1934 Act. The U.S.Supreme Court has consistently held that the definitions contained in the two different statutes are virtually identical and may be considered the same.
 General Rules and Regulations promulgated under the Securities Act of 1933: Rule 405 – Definitions of Terms: Foreign issuer. The term foreign issuer means any issuer which is a foreign government, a national of any foreign country or a corporation or other organization incorporated or organized under the laws of any foreign country.
Foreign private issuer. The term foreign private issuer means any foreign issuer other than a foreign government except an issuer meeting the following conditions:
1. More than 50 percent of the outstanding voting securities of such issuer are directly or indirectly owned of record by residents of the United States; and
2. Any of the following:
i. The majority of the executive officers or directors are United States citizens or residents;
ii. More than 50 percent of the assets of the issuer are located in the United States; or
iii. The business of the issuer is administered principally in the United States.
 Rule 504 — Exemption for Limited Offerings and Sales of Securities Not Exceeding $1,000,000
a. Exemption. Offers and sales of securities that satisfy the conditions in paragraph (b) of this Rule 504 by an issuer that is not:
1. subject to the reporting requirements of section 13 or 15(d) of the Exchange Act,:
2. an investment company; or
3. a development stage company that either has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person, shall be exempt from the provision of section 5 of the Act under section 3(b) of the Act.
b. Conditions to be met.
1. General conditions. To qualify for exemption under this Rule 504, offers and sales must satisfy the terms and conditions of Rule 501 and Rule 502 (a), (c) and (d), except that the provisions of Rule 502 (c) and (d) will not apply to offers and sales of securities under this Rule 504 that are made:
i. Exclusively in one or more states that provide for the registration of the securities, and require the public filing and delivery to investors of a substantive disclosure document before sale, and are made in accordance with those state provisions;
ii. In one or more states that have no provision for the registration of the securities or the public filing or delivery of a disclosure document before sale, if the securities have been registered in at least one state that provides for such registration, public filing and delivery before sale, offers and sales are made in that state in accordance with such provisions, and the disclosure document is delivered before sale to all purchasers (including those in the states that have no such procedure); or
iii. Exclusively according to state law exemptions from registration that permit general solicitation and general advertising so long as sales are made only to “accredited investors” as defined in Rule 501(a).
The aggregate offering price for an offering of securities under this Rule 504, as defined in Rule 501(c), shall not exceed $1,000,000, less the aggregate offering price for all securities sold within the twelve months before the start of and during the offering of securities under this Rule 504, in reliance on any exemption under section 3(b), or in violation of section 5(a) of the Securities Act.
Rule 505 — Exemption for Limited Offers and Sales of Securities Not Exceeding $5,000,000
a. Exemption. Offers and sales of securities that satisfy the conditions in paragraph (b) of this section by an issuer that is not an investment company shall be exempt from the provisions of section 5 of the Act under section 3(b) of the Act.
b. Conditions to be met
1. General conditions. To qualify for exemption under this section, offers and sales must satisfy the terms and conditions of Rule 501 and Rule 502.
2. Specific conditions
i. Limitation on aggregate offering price. The aggregate offering price for an offering of securities under this Rule 505, as defined in Rule 501(c), shall not exceed $5,000,000, less the aggregate offering price for all securities sold within the twelve months before the start of and during the offering of securities under this Rule 505 in reliance on any exemption under section 3(b) of the Act or in violation of section 5(a) of the Act.
ii. Limitation on number of purchasers. There are no more than or the issuer reasonably believes that there are no more than 35 purchasers of securities from the issuer in any offering under this section.
iii. Disqualifications. No exemption under this section shall be available for the securities of any issuer described in Rule 262 of Regulation A, except that for purposes of this section only:
A. The term “filing of the offering statement required by Rule 252” as used in Rule 262(a), (b) and (c) shall mean the first sale of securities under this section.The term “underwriter” as used in Rule 262 (b) and (c) shall mean a person that has been or will be paid directly or indirectly remuneration for solicitation of purchasers in connection with sales of securities under this section; and
Paragraph (b) (2) (iii) of this Rule 505 shall not apply to any issuer if the Commission determines, upon a showing of good cause, that it is not necessary under the circumstances that the exemption be denied. Any such determination shall be without prejudice to any other action by the Commission in any other proceeding or matter with respect to the issuer or any other person.
Rule 506 — Exemption for Limited Offers and Sales without Regard to Dollar Amount of Offering
a. Exemption. Offers and sales of securities by an issuer that satisfy the conditions in paragraph (b) of this Rule 506 shall be deemed to be transactions not involving any public offering within the meaning of section 4 (2) of the Act.
b. Conditions to be met-
1. General conditions. To qualify for an exemption under this section, offers and sales must satisfy all the terms and conditions ofRule 501 and Rule 502.
2. Specific Conditions-
i. Limitation on number of purchasers. There are no more than or the issuer reasonably believes that there are no more than 35 purchasers of securities from the issuer in any offering under this section.
ii. Nature of purchasers. Each purchaser who is not an accredited investor either alone or with his purchaser representative(s) has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment, or the issuer reasonably believes immediately prior to making any sale that such purchaser comes within this description.
 Rule 144A — Private Resales of Securities to Institutions
7. The fact that purchasers of securities from the issuer thereof may purchase such securities with a view to reselling such securities pursuant to this section will not affect the availability to such issuer of an exemption under section 4(2) of the Act, or Regulation D under the Act, from the registration requirements of the Act.
1. For purposes of this section, qualified institutional buyer shall mean:
i. Any of the following entities, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
A. Any insurance company as defined in section 2(a)(13) of the Act ;
Note: A purchase by an insurance company for one or more of its separate accounts, as defined by section 2(a)(37) of the Investment Company Act of 1940 (the “Investment Company Act”), which are neither registered under section 8 of the Investment Company Act nor required to be so registered, shall be deemed to be a purchase for the account of such insurance company.
B. Any investment company registered under the Investment Company Act or any business development company as defined in section 2(a)(48) of that Act;
C. Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958;
D. Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees;
E. Any employee benefit plan within the meaning of title I of the Employee Retirement Income Security Act of 1974;
F. Any trust fund whose trustee is a bank or trust company and whose participants are exclusively plans of the types identified in paragraph (a)(1)(i)(D) or (E) of this section, except trust funds that include as participants individual retirement accounts or H.R. 10 plans.
G. Any business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940;
H. Any organization described in section 501(c) (3) of the Internal Revenue Code, corporation (other than a bank as defined in section 3(a)(2) of the Act or a savings and loan association or other institution referenced in section 3(a)(5)(A) of the Act or a foreign bank or savings and loan association or equivalent institution), partnership, or Massachusetts or similar business trust; and
I. Any investment adviser registered under the Investment Advisers Act.
ii. Any dealer registered pursuant to section 15 of the Exchange Act, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer, Provided, That securities constituting the whole or a part of an unsold allotment to or subscription by a dealer as a participant in a public offering shall not be deemed to be owned by such dealer;
iii. Any dealer registered pursuant to section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a qualified institutional buyer;
Note: A registered dealer may act as agent, on a non-discretionary basis, in a transaction with a qualified institutional buyer without itself having to be a qualified institutional buyer.
iv. Any investment company registered under the Investment Company Act, acting for its own account or for the accounts of other qualified institutional buyers, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies. Family of investment companies means any two or more investment companies registered under the Investment Company Act, except for a unit investment trust whose assets consist solely of shares of one or more registered investment companies, that have the same investment adviser (or, in the case of unit investment trusts, the same depositor), Provided That, for purposes of this section:
A. Each series of a series company (as defined in Rule 18f-2 under the Investment Company Act ) shall be deemed to be a separate investment company; and
B. Investment companies shall be deemed to have the same adviser (or depositor) if their advisers (or depositors) are majority-owned subsidiaries of the same parent, or if one investment company’s adviser (or depositor) is a majority-owned subsidiary of the other investment company’s adviser (or depositor);
v. Any entity, all of the equity owners of which are qualified institutional buyers, acting for its own account or the accounts of other qualified institutional buyers; and
vi. Any bank as defined in section 3(a)(2) of the Act, any savings and loan association or other institution as referenced in section 3(a)(5)(A) of the Act, or any foreign bank or savings and loan association or equivalent institution, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under the Rule in the case of a U.S. bank or savings and loan association, and not more than 18 months preceding such date of sale for a foreign bank or savings and loan association or equivalent institution.
2. In determining the aggregate amount of securities owned and invested on a discretionary basis by an entity, the following instruments and interests shall be excluded: bank deposit notes and certificates of deposit; loan participations; repurchase agreements; securities owned but subject to a repurchase agreement; and currency, interest rate and commodity swaps.
3. The aggregate value of securities owned and invested on a discretionary basis by an entity shall be the cost of such securities, except where the entity reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published. In the latter event, the securities may be valued at market for purposes of this section.
4. In determining the aggregate amount of securities owned by an entity and invested on a discretionary basis, securities owned by subsidiaries of the entity that are consolidated with the entity in its financial statements prepared in accordance with generally accepted accounting principles may be included if the investments of such subsidiaries are managed under the direction of the entity, except that, unless the entity is a reporting company under section 13 or 15(d) of the Exchange Act, securities owned by such subsidiaries may not be included if the entity itself is a majority-owned subsidiary that would be included in the consolidated financial statements of another enterprise.
5. For purposes of this section, riskless principal transaction means a transaction in which a dealer buys a security from any person and makes a simultaneous offsetting sale of such security to a qualified institutional buyer, including another dealer acting as riskless principal for a qualified institutional buyer.
6. For purposes of this section, effective conversion premium means the amount, expressed as a percentage of the security’s conversion value, by which the price at issuance of a convertible security exceeds its conversion value.
7. For purposes of this section, effective exercise premium means the amount, expressed as a percentage of the warrant’s exercise value, by which the sum of the price at issuance and the exercise price of a warrant exceeds its exercise value.
 For further details see paragraph 4 of this Note.
 The main recognized International rating agencies for the time being are: Standard and Poor’s, Moodys and Fitch Ratings. For more details see: www.standardandpoors.com, www.moodys.com, www.fitchratings.com
 MTN Programs are currently in use in Europe. Autostrade S.p.A. launched on 01 June 2004 a Global Medium-Term Note Program with an aggregated nominal amount of Eur 10 billion (or the equivalent in any other currencies). This Program is in compliance with the U.S. Securities Laws.
 Section 2 (a)(10): The term “prospectus” means any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security; except that (a) a communication sent or given after the effective date of the registration statement (other than a prospectus permitted under subsection (b) of section 10) shall not be deemed a prospectus if it is proved that prior to or at the same time with such communication a written prospectus meeting the requirements of subsection (a) of section 10 at the time of such communication was sent or given to the person to whom the communication was made, and (b) a notice, circular, advertisement, letter, or communication in respect of a security shall not be deemed to be a prospectus if it states from whom a written prospectus meeting the requirements of section 10 may be obtained and, in addition, does no more than identify the security, state the price thereof, state by whom orders will be executed, and contain such other information as the Commission, by rules or regulations deemed necessary or appropriate in the public interest and for the protection of investors, and subject to such terms and conditions as may be prescribed therein, may permit.
 Radio and television offers can be considered special varieties of written offers. In this regard., see Larry D. Soderquist and Theresa A. Gabaldon, Securities Law, New York Foundation Press 1998.
 Section 12 — Civil Liabilities Arising in Connection with Prospectuses and Communications
a. In general
Any person who–
1. offers or sells a security in violation of section 5, or
2. offers or sells a security (whether or not exempted by the provisions of section 3, other than paragraphs (2) and (14) of subsection (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable, subject to subsection (b), to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.
 For more details see Istruzioni di Vigilanza per le Banche, Circular n. 229 dated 21 April 1999 of Bank of Italy as amended, updated and-or supplemented from time to time.
 For more details see paragraph 2 of this Note
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