Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Pre-Effective Amendment to Registration of HTML 2.22M
Securities Issued in a
Business-Combination Transaction
2: EX-5.1 Opinion re: Legality 2 13K
3: EX-8.1 Opinion re: Tax Matters 1 10K
4: EX-10.27 Material Contract 14 55K
5: EX-10.28 Material Contract 14 55K
6: EX-10.29 Material Contract 2 12K
7: EX-12.1 Statement re: Computation of Ratios 2± 11K
8: EX-23.2 Consent of Experts or Counsel 1 7K
9: EX-99.1 Miscellaneous Exhibit 1 10K
10: EX-99.2 Miscellaneous Exhibit 3 16K
11: EX-99.3 Miscellaneous Exhibit 1 8K
12: EX-99.4 Miscellaneous Exhibit 1 8K
13: EX-99.5 Miscellaneous Exhibit 1 9K
14: EX-99.6 Miscellaneous Exhibit 1 9K
15: EX-99.7 Miscellaneous Exhibit 1 8K
16: EX-99.8 Miscellaneous Exhibit 18 77K
17: EX-99.9 Miscellaneous Exhibit 4 18K
EXHIBIT 99.8
LETTER OF TRANSMITTAL
CRUM & FORSTER HOLDINGS CORP.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING 10 3/8%
SENIOR NOTES DUE 2013 ISSUED ON JUNE 5, 2003
FOR 10 3/8% SENIOR NOTES DUE 2013 WHICH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933
Pursuant to the Prospectus, dated , 2003
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 2003 UNLESS EXTENDED (THE "EXPIRATION DATE").
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME,
ON THE EXPIRATION DATE. WHERE THE EXPIRATION DATE HAS BEEN
EXTENDED, TENDERS PURSUANT TO THE EXCHANGE OFFER AS OF THE
PREVIOUSLY SCHEDULED EXPIRATION DATE MAY NOT BE WITHDRAWN AFTER THE DATE
OF THE PREVIOUSLY SCHEDULED EXPIRATION DATE.
DELIVERY TO:
EXCHANGE AGENT
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BY HAND, MAIL OR OVERNIGHT COURIER: The Bank of New York Corporate Trust Operations
Reorganization Unit 101 Barclay Street - 7 East New York, New York 10286
Attn: For Information Call: BY FACSIMILE (for Eligible Institutions Only):
Confirm By Telephone: (212) 815-3687
(212) 298-1915 Attn: Duong Nguyen
Delivery of this letter of transmittal to an address other than as set
forth above, or transmission of this letter of transmittal via facsimile to a
number other than as set forth above, will not constitute a valid delivery.
Please read this entire letter of transmittal carefully before completing any
box below.
The undersigned acknowledges that he, she or it has received this
Letter of Transmittal (the "Letter") and the Prospectus, dated ,
2003 (the "Prospectus"), of Crum & Forster Holdings Corp. (the "Company"),
relating to its offer to exchange up to $300,000,000 aggregate principal amount
of its 10 3/8% Senior Notes due 2013 (the "New Notes"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like principal amount of its issued and outstanding 10 3/8% Senior Notes
due 2013 (the "Old Notes") from the registered holders thereof (the "Holders").
The Prospectus and this Letter together constitute the Company's offer to
exchange (the "Exchange Offer") its Old Notes for a like principal amount of its
New Notes from the Holders.
For each Old Note accepted for exchange, the Holder of such Old Note
will receive a New Note having a principal amount equal to that of the
surrendered Old Note. The New Notes will accrue interest from the last interest
payment date on which interest was paid on the Old Notes or, if no interest has
been paid on the Old Notes, from the issue date of the Old Notes. Accordingly,
registered Holders of New Notes on the relevant record date for the first
interest payment date following the consummation of the Exchange Offer will
receive interest accruing from the last interest payment date on which interest
was paid or, if no interest has been paid, from the issue date of the Old Notes.
Old Notes accepted for exchange will cease to accrue interest from and after the
date of consummation of the Exchange Offer. Holders of Old Notes whose Old Notes
are accepted for exchange will not receive any payment in respect of accrued
interest on such Old Notes otherwise payable on any interest payment date the
record date for which occurs on or after consummation of the Exchange Offer.
This Letter is to be completed by a Holder of Old Notes either if
certificates are to be forwarded herewith or if a tender of certificates for Old
Notes, if available, is to be made by book-entry transfer to the account
maintained by the Exchange Agent at The Depository Trust Company ("DTC") (the
"Book-Entry Transfer Facility") pursuant to the procedures set forth in
"Exchange Offer--Book-entry transfer" section of the Prospectus. Holders of
Old Notes whose certificates are not immediately available, or who are unable to
deliver confirmation of the book-entry tender of their Old Notes into the
Exchange Agent's account at the Book-Entry Transfer Facility (a "Book-Entry
Confirmation") and all other documents required by this Letter to the Exchange
Agent on or prior to the Expiration Date, must tender their Old Notes according
to the guaranteed delivery procedures set forth in "Exchange Offer--Guaranteed
delivery procedures" section of the Prospectus. See Instruction 1. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Exchange Agent.
List below the Old Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Old Notes should be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES
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NAME(S) AND ADDRESS(ES) OF REGISTERED CERTIFICATE AGGREGATE PRINCIPAL AMOUNT* PRINCIPAL
HOLDER(S) (PLEASE FILL IN, IF BLANK) NUMBER(S) AMOUNT OF
OLD NOTE(S)
TENDERED**
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TOTAL
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* Need not be completed if Old Notes are being tendered by book-entry
transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have
tendered ALL of the Old Notes represented by the Old Notes indicated in
column 2. See Instruction 2. Old Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple
thereof. See Instruction 1.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
-----------------------------------------
Account Number
--------------------------------------------------------
Transaction Code Number
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[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Holder(s)
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Window Ticket Number (if any)
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Date of Execution of Notice of Guaranteed Delivery
--------------------
Name of Institution That Guaranteed Delivery
--------------------------
IF DELIVERED BY BOOK ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number
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Transaction Code Number
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[ ] CHECK HERE IF YOU ARE A BROKER-DEALER ENTITLED, PURSUANT TO THE TERMS OF
THE REGISTRATION RIGHTS AGREEMENT REFERRED TO IN THE PROSPECTUS, TO
RECEIVE, AND WISH TO RECEIVE, 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO WITHIN 180 DAYS AFTER THE
EXPIRATION DATE.
Name:
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Address:
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2
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
New Notes. If the undersigned is a broker-dealer that will receive New Notes for
its own account in exchange for Old Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges and
represents that it will deliver a prospectus meeting the requirements of the
Securities Act, in connection with any resale of such New Notes; however, by so
acknowledging and representing and by delivering such a prospectus the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. If the undersigned is a broker-dealer that will
receive New Notes, it represents that the Old Notes to be exchanged for the New
Notes were acquired as a result of market-making activities or other trading
activities. In addition, such broker-dealer represents that it is not acting on
behalf of any person who could not truthfully make the foregoing
representations.
3
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns
and transfers to, or upon the order of, the Company all right, title and
interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as the undersigned's true and lawful agent and attorney-in-fact
with respect to such tendered Old Notes, with full power of substitution, among
other things, to cause the Old Notes to be assigned, transferred and exchanged.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Old Notes, and
to acquire New Notes issuable upon the exchange of such tendered Old Notes, and
that, when such Old Notes are accepted for exchange, the Company will acquire
good and unencumbered title thereto, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim when the same are
accepted by the Company. The undersigned hereby further represents and warrants
that any New Notes acquired in exchange for Old Notes tendered hereby will have
been acquired in the ordinary course of business of the person receiving such
New Notes, whether or not such person is the undersigned, that neither the
Holder of such Old Notes nor any such other person is participating in, intends
to participate in or has an arrangement or understanding with any person to
participate in the distribution (within the meaning of the Securities Act) of
Old Notes or New Notes, that neither the Holder of such Old Notes nor any such
other person is an "affiliate," as defined in Rule 405 under the Securities Act,
of the Company, and that neither the Holder of such Old Notes nor such other
person is acting on behalf of any person who could not truthfully make the
foregoing representations and warranties.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the New Notes issued pursuant to the Exchange Offer in exchange
for the Old Notes may be offered for resale, resold and otherwise transferred by
Holders thereof (other than any such Holder that is a broker-dealer or an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such Holder's business, at the time of commencement of
the Exchange Offer such Holder has no arrangement or understanding with any
person to participate in a distribution of such New Notes, and such Holder is
not engaged in, and does not intend to engage in, a distribution of such New
Notes. However, the SEC has not considered the Exchange Offer in the context of
a no-action letter and there can be no assurance that the staff of the SEC would
make a similar determination with respect to the Exchange Offer as in other
circumstances. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Notes and has no arrangement or understanding to participate
in a distribution of New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Old Notes, it represents
that the Old Notes to be exchanged for the New Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such New Notes; however, by so acknowledging
and by delivering a prospectus meeting the requirements of the Securities Act,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
The SEC has taken the position that such broker-dealers may fulfill
their prospectus delivery requirements with respect to the New Notes (other than
a resale of New Notes received in exchange for an unsold allotment from the
original sale of the Old Notes) with the Prospectus. The Prospectus, as it may
be amended or supplemented from time to time, may be used by certain
broker-dealers (as specified in the Registration Rights Agreement referenced in
the Prospectus) ("Participating Broker-Dealers") for a period of time, starting
on the Expiration Date and ending on the close of business 90 days after the
Expiration Date in connection with the sale or transfer of such New Notes. The
Company has agreed that, for such period of time, it will make the Prospectus
(as it may be amended or supplemented) available to such a broker-dealer which
elects to exchange Old Notes, acquired for its own account as a result of market
making or other trading activities, for New Notes pursuant to the Exchange Offer
for use in
4
connection with any resale of such New Notes. By accepting the Exchange Offer,
each broker-dealer that receives New Notes pursuant to the Exchange Offer
acknowledges and agrees to notify the Company prior to using the Prospectus in
connection with the sale or transfer of New Notes and that, upon receipt of
notice from the Company of the happening of any event which makes any statement
in the Prospectus untrue in any material respect or which requires the making of
any changes in the Prospectus in order to make the statements therein (in light
of the circumstances under which they were made) not misleading, such
broker-dealer will suspend use of the Prospectus until (i) the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and (ii) either the Company has furnished copies of the amended or supplemented
Prospectus to such broker-dealer or, if the Company has not otherwise agreed to
furnish such copies and declines to do so after such broker-dealer so requests,
such broker-dealer has obtained a copy of such amended or supplemented
Prospectus as filed with the SEC. Except as described above, the Prospectus may
not be used for or in connection with an offer to resell, a resale or any other
retransfer of New Notes. A broker-dealer that acquired Old Notes in a
transaction other than as part of its market-making activities or other trading
activities will not be able to participate in the Exchange Offer.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
conferred or agreed to be conferred in this Letter and every obligation of the
undersigned hereunder shall be binding upon the successors, assigns, heirs,
executors, administrators, trustees in bankruptcy and legal representatives of
the undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. This tender may be withdrawn only in accordance
with the procedures set forth in "Exchange offer--Withdrawal of tenders" section
of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the New Notes (and, if applicable,
substitute certificates representing Old Notes for any Old Notes not exchanged)
in the name of the undersigned or, in the case of a book-entry delivery of Old
Notes, please credit the account indicated above maintained at the Book-Entry
Transfer Facility. Similarly, unless otherwise indicated under the box entitled
"Special Delivery Instructions" below, please send the New Notes (and, if
applicable, substitute certificates representing Old Notes for any Old Notes not
exchanged) to the undersigned at the address shown above in the box entitled
"Description of Old Notes."
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES" ABOVE
AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET
FORTH IN SUCH BOX ABOVE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING ANY
BOX ABOVE.
5
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
X , 2003
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X , 2003
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SIGNATURE(S) OF OWNER DATE
Area Code and Telephone Number
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If a Holder is tendering an Old Note, this Letter must be signed by the
registered Holder(s) as the name(s) appear(s) on the certificate(s) for the Old
Note or by any person(s) authorized to become registered Holder(s) by
endorsements and documents transmitted herewith. If, signature is by a trustee,
executor, administrator, guardian, officer or other person acting in a fiduciary
or representative capacity, please set forth full title. See Instruction 3.
Name(s)
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(PLEASE TYPE OR PRINT)
Capacity:
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Address:
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SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 3) SIGNATURE(S) GUARANTEED BY AN
ELIGIBLE INSTITUTION:
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(AUTHORIZED SIGNATURE)
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(TITLE)
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(NAME AND FIRM)
DATED: , 2003
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(PLEASE COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 HEREIN. SEE INSTRUCTION 5.)
6
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4 AND 6)
To be completed ONLY if certificates for Old Notes not exchanged and/or New
Notes are to be issued in the name of and sent to someone other than the person
or persons whose signature(s) appear(s) on this Letter above, or if Old Notes
delivered by book-entry transfer which are not accepted for exchange are to be
returned by credit to an account maintained at the Book-Entry Transfer Facility
other than the account indicated above.
Issue: New Notes and/or Old Notes to:
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(Please Type or Print)
Names(s):
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(Please Type or Print)
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(Please Type or Print)
Address:
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(Zip Code)
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(Complete Substitute Form W-9)
[ ] Credit unexchanged Old Notes delivered by book-entry transfer to the
Book-Entry Transfer Facility account set forth below:
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(Book-Entry Transfer Facility Account Number, if Applicable)
7
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4 AND 6)
To be completed ONLY if certificates for Old Notes not exchanged and/or New
Notes are to be sent to someone other than the person or persons whose
signature(s) appear(s) on this Letter above or to such person or persons at an
address other than shown in the box entitled "Description of Old Notes" on this
Letter above.
Mail: New Notes and/or Old Notes to:
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(Please Type or Print)
Names(s):
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(Please Type or Print)
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(Please Type or Print)
Address:
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(Zip Code)
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS LETTER
OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A
BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY
THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
8
INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE
ANY AND ALL OUTSTANDING 10 3/8% SENIOR NOTES DUE 2013 ISSUED ON JUNE 5, 2003 OF
CRUM & FORSTER HOLDINGS CORP. FOR 10 3/8% SENIOR NOTES DUE 2013 OF CRUM &
FORSTER HOLDINGS CORP. THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED
1. DELIVERY OF THIS LETTER AND NOTES; GUARANTEED DELIVERY PROCEDURES. This
Letter is to be completed by Holders of Old Notes either if certificates
are to be forwarded herewith or if tenders are to be made pursuant to the
procedures for delivery by book-entry transfer set forth in "Exchange
Offer--Book-entry transfer" section of the Prospectus. Certificates for all
physically tendered Old Notes, or Book-Entry Confirmation, as the case may
be, as well as a properly completed and duly executed Letter (or manually
signed facsimile hereof) and any other documents required by this Letter,
must be received by the Exchange Agent at the address set forth herein on
or prior to the Expiration Date, or the tendering Holder must comply with
the guaranteed delivery procedures set forth below. Old Notes tendered
hereby must be in denominations of principal amount of $1,000 and any
integral multiple thereof.
Holders whose certificates for Old Notes are not immediately available or
who cannot deliver their certificates and all other required documents to
the Exchange Agent on or prior to the Expiration Date, or who cannot
complete the procedure for book entry transfer on a timely basis, may
tender their Old Notes pursuant to the guaranteed delivery procedures set
forth in "Exchange Offer--Guaranteed delivery procedures" section of the
Prospectus. Pursuant to such procedures, (i) such tender must be made
through an Eligible Institution (as defined herein), (ii) prior to 5:00
P.M., New York City time, on the Expiration Date, the Exchange Agent must
receive from such Eligible Institution a properly completed and duly
executed Letter (or a facsimile thereof) and Notice of Guaranteed Delivery,
substantially in the form provided by the Company (by facsimile
transmission, mail or hand delivery), setting forth the name and address of
the Holder of Old Notes and the amount of Old Notes tendered, stating that
the tender is being made thereby and guaranteeing that within three New
York Stock Exchange ("NYSE") trading days after the date of execution of
the Notice of Guaranteed Delivery, the certificates for all physically
tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, and any other documents required by this
Letter will be deposited by the Eligible Institution with the Exchange
Agent, and (iii) the certificates for all physically tendered Old Notes, in
proper form for transfer, or a Book-Entry Confirmation, as the case may be,
and all other documents required by this Letter, are received by the
Exchange Agent within three NYSE trading days after the date of execution
of the Notice of Guaranteed Delivery.
The method of delivery of this Letter, the Old Notes and all or any other
required documents is at the election and risk of the tendering Holders,
but the delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If Old Notes, this Letter and all other
required documents are sent by mail, it is suggested that the mailing be
registered mail, properly insured, with return receipt requested, made
sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration
Date. See the "Exchange Offer" section of the Prospectus.
9
2. PARTIAL TENDERS (NOT APPLICABLE TO NOTEHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If less than all of the Old Notes evidenced by a submitted
certificate are to be tendered, the tendering Holder(s) should fill in the
aggregate principal amount of Old Notes to be tendered in the box above
entitled "Description of Old Notes--Principal Amount Tendered." A reissued
certificate representing the balance of nontendered Old Notes will be sent
to such tendering Holder, unless otherwise provided in the appropriate box
on this Letter, promptly after the Expiration Date.
ALL OF THE OLD NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE
BEEN TENDERED UNLESS OTHERWISE INDICATED.
3. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF
SIGNATURES. If this Letter is signed by the registered Holder of the Old
Notes tendered hereby, the signature must correspond exactly with the name
as written on the face of the certificates without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners,
all of such owners must sign this Letter.
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered Holder or Holders of the Old
Notes specified herein and tendered hereby, no endorsements of certificates
or separate bond powers are required. If, however, the New Notes are to be
issued, or any untendered Old Notes are to be reissued, to a person other
than the registered Holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required. Signatures on such
certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered Holder or
Holders of any certificate(s) specified herein, such certificate(s) must be
accompanied by appropriate bond powers, in either case signed exactly as
the name or names of the registered Holder or Holders appear(s) on the
certificate(s) and signatures on such certificate(s) must be guaranteed by
an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing, and, unless waived by the
Company, proper evidence satisfactory to the Company of their authority to
so act must be submitted.
ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS REQUIRED
BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY ANY MEMBER FIRM OF A REGISTERED
NATIONAL SECURITIES EXCHANGE OR OF THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC., A COMMERCIAL BANK OR TRUST COMPANY HAVING AN OFFICE OR
CORRESPONDENT IN THE UNITED STATES OR AN "ELIGIBLE GUARANTOR INSTITUTION" WITHIN
THE MEANING OF RULE 17AD-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (EACH AN "ELIGIBLE INSTITUTION").
SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE INSTITUTION,
PROVIDED THE OLD NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF OLD NOTES
(WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE
BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION
LISTING AS THE HOLDER OF SUCH OLD NOTES) WHO HAS NOT COMPLETED THE BOX ENTITLED
"SPECIAL ISSUANCE INSTRUCTIONS" OR "SPECIAL DELIVERY INSTRUCTIONS" IN THIS
LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE INSTITUTION.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering Holders of Old Notes
should indicate in the applicable box the name and address to which New
Notes issued pursuant to the Exchange Offer and/or
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substitute certificates evidencing Old Notes not exchanged are to be issued
or sent, if different from the name or address of the person signing this
Letter. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. Holders tendering Old Notes by book-entry transfer may request
that Old Notes not exchanged be credited to such account maintained at the
Book-Entry Transfer Facility as such Holder may designate herein. If no
such instructions are given, such Old Notes not exchanged will be returned
to the name and address of the person signing this Letter.
5. TAXPAYER IDENTIFICATION NUMBER. U.S. federal income tax law generally
requires that a tendering Holder whose Old Notes are accepted for exchange
must provide the Company (as payor), or the Paying Agent designated by the
Company to act on its behalf, with such Holder's correct Taxpayer
Identification Number ("TIN") on Substitute Form W-9, below (the
"Substitute Form W-9"), which in the case of a tendering Holder who is an
individual, is his or her social security number. If the Company is not
provided with the correct TIN or an adequate basis for an exemption from
backup withholding, such tendering Holder may be subject to a $50 penalty
imposed by the Internal Revenue Service (the "IRS"). In addition, delivery
to such tendering Holder of New Notes may result in backup withholding,
currently at the rate of 28% (the "Applicable Tax Rate"), on all reportable
payments made after the exchange.
Exempt Holders of Old Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding
and reporting requirements. See the enclosed Guidelines of Certification of
Taxpayer Identification Number on Substitute Form W-9 (the "W-9
Guidelines") for additional instructions.
To prevent backup withholding, each tendering Holder of Old Notes must
provide its correct TIN by completing the Substitute Form W-9 set forth
below, certifying; under penalties of perjury, that (1) the TIN provided is
correct, (or that such Holder is awaiting a TIN), (2) the Holder is not
subject to backup withholding because (a) the Holder is exempt from backup
withholding, or (b) the Holder has not been notified by the IRS that such
Holder is subject to backup withholding as a result of a failure to report
all interest or dividends or (c) the IRS has notified the Holder that such
Holder is no longer subject to backup withholding, and (3) such Holder is a
U.S. person (including a U.S. Resident alien). If the tendering Holder of
Old Notes is a nonresident alien or foreign entity not subject to backup
withholding, such Holder must give the Exchange Agent a completed Form W-8,
Certificate of Foreign Status. These forms may be obtained from the
Exchange Agent. If the Old Notes are in more than one name or are not in
the name of the actual owner, such Holder should consult the W-9 Guidelines
for information on which TIN to report. If such Holder does not have a TIN,
such Holder should consult the W-9 Guidelines for instructions on applying
for a TIN, check the box in Part 2 of the Substitute Form W-9 and write
"applied for" in lieu of its TIN. Note: Checking this box and writing
"applied for" on the form means that such Holder has already applied for a
TIN or that such Holder intends to apply for one in the near future. If the
box in Part 2 of the Substitute Form W-9 is checked, the Exchange Agent
will retain a percentage, equal to the Applicable Tax Rate, of reportable
payments made to a Holder during the sixty (60) day period following the
date of the Substitute Form W-9. If the Holder furnishes the Exchange Agent
with his or her TIN within sixty (60) days of the date of the Substitute
Form W-9, the Exchange Agent will remit such amounts retained during such
sixty (60) day period to such Holder and no further amounts will be
retained or withheld from payments made to the Holder thereafter. If,
however, such Holder does not provide its TIN to the Exchange Agent within
such sixty (60) day period, the Exchange Agent will remit such previously
withheld amounts to the IRS as backup withholding and will withhold a
percentage, which shall be equal to the Applicable Tax Rate, of all
reportable payments to the Holder thereafter until such Holder furnishes
its TIN to the Exchange Agent.
If a Holder does not have a taxpayer identification number or such Holder
does not know its number, such Holder should obtain Form SS-5, Application
for a Social Security Card, or Form SS-4, Application for Employer
Identification Number, at the local office of the Social Security
Administration or the IRS and apply for a number.
11
FAILURE TO COMPLETE THE SUBSTITUTE FORM W-9 PROVIDED BELOW MAY RESULT IN
BACKUP WITHHOLDING AT THE APPLICABLE TAX RATE ON FUTURE PAYMENTS MADE TO
HOLDERS UNDER THE NEW NOTES.
6. TRANSFER TAXES. The Company will pay all transfer taxes, if any, applicable
to the transfer of Old Notes to it or its order pursuant to the Exchange
Offer. If, however, New Notes and/or substitute Old Notes not exchanged are
to be delivered to, or are to be registered or issued in the name of, any
person other than the registered Holder of the Old Notes tendered hereby,
or if tendered Old Notes are registered in the name of any person other
than the person signing this Letter, or if a transfer tax is imposed for
any reason other than the transfer of Old Notes to the Company or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes
(whether imposed on the registered Holder or any other persons) will be
payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted herewith, the amount of
such transfer taxes will be billed directly to such tendering Holder.
Except as provided in this instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the old notes specified in this
letter.
7. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
8. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering Holders of Old Notes, by
execution of this Letter, shall waive any right to receive notice of the
acceptance of their Old Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Old Notes nor shall any of them incur any liability for failure to give any
such notice.
9. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any Holder whose Old Notes
have been mutilated, lost, stolen or destroyed should contact the Exchange
Agent at the address indicated above for further instructions.
10. WITHDRAWAL RIGHTS. Tenders of Old Notes of a series may be withdrawn at any
time prior to 5:00 P.M., New York City time, on the Expiration Date with
respect to such series.
For a withdrawal of a tender of Old Notes to be effective, a written notice
of withdrawal must be received by the Exchange Agent at the address set
forth above prior to 5:00 P.M., New York City time, on the Expiration Date
with respect to such series. Any such notice of withdrawal must (i) specify
the name of the person having tendered the Old Notes to be withdrawn (the
"Depositor"), (ii) identify the Old Notes to be withdrawn (including the
principal amount of such Old Notes), (iii) in the case of Old Notes
tendered by book-entry transfer, specify the number of the account at the
Book-Entry Transfer Facility from which the Old Notes were tendered and
specify the name and number of the account at the Book-Entry Transfer
Facility to be credited with the withdrawn Old Notes and otherwise comply
with the procedures of such facility, (iv) contain a statement that such
Holder is withdrawing its election to have such Old Notes exchanged, (v) be
signed by the Holder in the same manner as the original signature on the
Letter by which such Old Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer to have
the Trustee with respect to the Old Notes register the transfer of such Old
Notes in the name of the person withdrawing the tender and (vi) specify the
name in which such Old Notes are registered, if different from that of the
Depositor. All questions as to the validity, form and eligibility
(including time of receipt) of such notices will be determined by the
Company, whose determination shall be final and binding on all parties. Any
Old Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer and no New Notes will be issued
with respect thereto unless the Old Notes so withdrawn are validly
retendered. Any Old Notes that have been tendered for exchange but which
are not exchanged for any reason will be returned to the tendering Holder
thereof without cost to such Holder (or, in the case of Old Notes tendered
by book-entry transfer into the Exchange
12
Agent's account at the Book-Entry Transfer Facility pursuant to the
book-entry transfer procedures set forth in "Exchange Offer--Book-entry
transfer" section of the Prospectus, such Old Notes will be credited to an
account maintained with the Book-Entry Transfer Facility for the Old Notes)
as soon as practicable after withdrawal, rejection of tender or termination
of the Exchange Offer. Properly withdrawn Old Notes may be retendered by
following the procedures described above at any time on or prior to 5:00
P.M., New York City time, on the Expiration Date with respect to such
series of Old Notes.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter, and requests for Notices of Guaranteed Delivery
and other related documents may be directed to the Exchange Agent, at the
address and telephone number indicated above.
13
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 4)
[Enlarge/Download Table]
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PAYOR'S NAME:
-------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 - PLEASE PROVIDE YOUR TIN IN
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY TIN:
SIGNING AND DATING BELOW. ------------------------------
DEPARTMENT OF THE TREASURY Social Security Number
INTERNAL REVENUE SERVICE
or
PAYOR'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER ("TIN") AND ------------------------------
CERTIFICATION Employer Identification Number
----------------------------------------------------------------------------
PART 2-- TIN Applied For [ ]
-------------------------------------------------------------------------------------------------------------------
CERTIFICATION: Under the penalties of perjury, I certify that:
(1) the number shown on this form is my correct TIN (or I am waiting for a
number to be issued to me).
(2) I am not subject to backup withholding either because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal Revenue
Service (the "IRS") that I am subject to backup withholding as a result of
a failure to report all interest or dividends, or (c) the IRS has notified
me that I am no longer subject to backup withholding, and
(3) I am a U.S. person (including a U.S. resident alien).
Signature Date
------------------------------------------------- ------------
You must cross out item (2) of the above certification if you have been notified
by the IRS that you are subject to backup withholding because of underreporting
of interest or dividends on your tax return and you have not been notified by
the IRS that you are no longer subject to backup withholding.
--------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
--------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TIN
I certify under penalties of perjury that a TIN has not been issued to
me, and either (a) I have mailed or delivered an application to receive a TIN to
the appropriate IRS Center of Social Security Administration Office, or (b) I
intend to mail or deliver am application in the near future. I understand that
if I do not provide a TIN by the time of the exchange, 28 percent of all
reportable payments made to me thereafter will be withheld until I provide a
number.
Signature Date
------------------------------------------------- ------------
--------------------------------------------------------------------------------
14
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. The taxpayer identification number for an individual is the individual's
Social Security number. Social Security numbers have nine digits separated by
two hyphens: e.g., 000-00-0000. The taxpayer identification number for an entity
is the entity's Employer Identification number. Employer Identification numbers
have nine digits separated by only one hyphen: e.g., 00-0000000. The table below
will help determine the number to give the payer.
[Enlarge/Download Table]
----------------------------------------------------------- ----------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL EMPLOYER
SECURITY IDENTIFICATION NUMBER
NUMBER OF - OF -
----------------------------------------------------------- ----------------------------------------------------
l. An individual's account The individual 6. Sole proprietorship The owner(3)
account
2. Two or more individuals The actual owner of the 7. A valid trust, estate The legal entity (Do
(joint account) account or, if combined or pension trust not furnish the
funds, the first identifying number of
individual on the the personal
account(1) representative or
trustee unless the
legal entity itself
is not designated in
the account title.)(4)
3. Custodian account of a The minor(2) 8. Corporate account The corporation
minor (Uniform Gift to
Minors Act)
4. a. The usual revocable The grantor-trustee(1) 9. Partnership account The partnership
savings trust account
(grantor is also
trustee)
b. So-called trust The actual owner(l) 10. Association, club, The organization
account that is not a religious, charitable,
legal or valid trust educational or other
under State law tax exempt organization
5. Sole proprietorship The owner(3)
account
11. A broker or registered The broker or nominee
nominee
12. Account with the The public entity
Depart-ment of
Agriculture in the name
of a public entity
(such as a State or
local government,
school district or
prison) that receives
agriculture program
payments
----------------------------------------------------------- ----------------------------------------------------
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a Social Security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's Social Security number.
(3) Show the name of the individual. The name of the business or the "doing
business as" name may also be entered. Either the Social Security number or
the Employer Identification number may be used.
(4) List first and circle the name of the legal trust, estate or pension trust.
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL
BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Section references are to the Internal Revenue Code.
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Card, or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service (the "IRS") and
apply for a number.
To complete the Substitute Form W-9, if you do not have a taxpayer
identification number, write "Applied For" in the space for the taxpayer
identification number in Part 1, sign and date the Form, and give it to the
requester. If the requester does not receive your taxpayer identification number
within 60 days, backup withholding, if applicable, will begin and will continue
until you furnish your taxpayer identification number to the requester.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required. For interest and dividends, all listed
payees are exempt except item (9). For broker transactions, payees listed in (1)
through (13) and a person registered under the Investment Advisers Act of 1940
who regularly acts as a broker are exempt. Payments subject to reporting under
sections 6041 and 6041A are generally exempt from backup withholding only if
made to payees described in items (1) through (7), except that a corporation
that provides medical and health care services or bills and collects payments
for such services is not exempt from backup withholding or information
reporting. Only payees described in items (2) through (6) are exempt from backup
withholding for barter exchange transactions, patronage dividends, and payments
by certain fishing boat operators.
1. A corporation.
2. An organization exempt from tax under section 501(a), or an individual
retirement plan ("IRA"), or a custodial account under 403(b)(7), if the
account satisfies the requirements of section 401(f)(2).
3. The United States or any of its agencies or instrumentalities.
4. A State, the District of Columbia, a possession of the United States, or
any of its political subdivisions or instrumentalities.
5. A foreign government or any of its political subdivisions, agencies or
instrumentalities.
6. An international organization or any of its agencies or instrumentalities.
7. A foreign central bank of issue.
8. A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
9. A futures commission merchant registered with the Commodity Futures Trading
Commission.
10. A real estate investment trust.
11. An entity registered at all times during the year under the Investment
Company Act of 1940.
12. A common trust fund operated by a bank under section 584(a).
13. A financial institution.
14. A middleman known in the investment community as a nominee or listed in the
most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
15. A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends and patronage dividends generally not subject to backup
withholding including the following:
o Payments to nonresident aliens subject to withholding under section 1441.
o Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident partner.
o Payments of patronage dividends not paid in money.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Payments of interest generally not subject to backup withholding include the
following:
o Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt interest dividends under
section 852).
o Payments described in section 6049(b)(5) to nonresident aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details see sections 6041, 6041A(a), 6042, 6044, 6045,
6049, 6050A and 6050N, and the regulations under those sections.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. ENTER YOUR TAXPAYER IDENTIFICATION NUMBER. WRITE "EXEMPT" ON
THE FACE OF THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
PRIVACY ACT NOTICE
Section 6109 requires you to give your correct taxpayer identification number to
persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the
acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an IRA. The IRS uses the numbers for identification
purposes and to help verify the
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
accuracy of your tax return. You must provide your taxpayer identification
number whether or not you are required to file a tax return. Payers must
generally withhold 28% of taxable interest, dividend, and certain other payments
to a payee who does not furnish a taxpayer identification number to a payer.
Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis which results in no backup
withholding, you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE IRS.
Dates Referenced Herein
| Referenced-On Page |
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This ‘S-4/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
Filed on: | | 9/22/03 | | | | | | | None on these Dates |
| | 6/5/03 | | 1 | | 9 |
| List all Filings |
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