As filed with the Securities and Exchange Commission on December 26, 1996
Registration No. 333-18107
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Illinois Central Railroad Company
(Exact name of Registrant as specified in its charter)
Delaware 4011 36-2728842
(State of other Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification
incorporation or Classification Code Number)
organization) Number)
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Ronald A. Lane
Vice President and General Counsel and Secretary
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Winthrop B. Conrad, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Approximate date of commencement of proposed sale to public: As
soon as practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
==============================================================================
Prospectus
ILLINOIS CENTRAL RAILROAD COMPANY
OFFER TO EXCHANGE $1,000 IN PRINCIPAL AMOUNT OF 7.70% DEBENTURES DUE 2096 FOR
EACH $1,000 IN PRINCIPAL AMOUNT OF OUTSTANDING 7.70% DEBENTURES DUE 2096 THAT
WERE ISSUED AND SOLD IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
The Exchange Offer will expire at 5:00 P.M.,
New York City time, on January 30, 1997, unless extended
Illinois Central Railroad Company, a Delaware corporation (the
"Company"), hereby offers to exchange (the "Exchange Offer") $125,000,000 in
aggregate principal amount of its 7.70% Debentures due 2096 (the "Exchange
Debentures") for $125,000,000 in aggregate principal amount of its outstanding
7.70% Debentures due 2096 that were issued and sold in a transaction exempt
from registration under the Securities Act of 1933, as amended (the "Original
Debentures" and, together with the Exchange Debentures, the "Debentures").
The terms of the Exchange Debentures are substantially similar
(including principal amount, interest rate, redemption provisions, maturity
and ranking) to the terms of the Original Debentures for which they may be
exchanged pursuant to the Exchange Offer, except that the Exchange Debentures
(i) are freely transferable by holders thereof (except as provided below) and
(ii) are issued without any covenant regarding their registration. The
Exchange Debentures will be issued under the indenture governing the Original
Debentures. The Exchange Debentures will be, and the Original Debentures are,
unsecured obligations of the Company and will rank pari passu with all
existing and future senior unsecured indebtedness of the Company. As of
September 30, 1996, after giving pro forma effect to the offering of the
Original Debentures, the Company would have had approximately $567 million of
outstanding senior unsecured indebtedness. For a complete description of the
terms of the Exchange Debentures, see "Description of Debentures." There will
be no cash proceeds to the Company from the Exchange Offer.
Interest on the Exchange Debentures will accrue (i) from the
last interest payment date on which interest was paid on the Original
Debentures surrendered in exchange therefor or (ii) if no interest has been
paid on the Original Debentures, from the original issue date of the Original
Debentures.
The Original Debentures were originally issued and sold on
December 17, 1996 in a transaction not registered under the Securities Act of
1933, as amended (the "Securities Act"), in reliance upon the exemption
provided in Section 4(2) of the Securities Act and Rule 144A of the Securities
Act (the "Initial Offering"). Accordingly, the Original Debentures may not
be reoffered, resold or otherwise pledged, hypothecated or transferred in the
United States unless so registered or unless an applicable exemption from the
registration requirements of the Securities Act is available. Based upon its
view of interpretations provided to third parties by the Staff (the "Staff")
of the Securities and Exchange Commission (the "Commission"), the Company
believes that the Exchange Debentures issued pursuant to the Exchange Offer in
exchange for the Original Debentures may be offered for resale, resold and
otherwise transferred by holders thereof (other than any holder of any such
other person which is (i) an "affiliate" of the Company within the meaning of
Rule 405 under the Securities Act (an "Affiliate"), (ii) a broker-dealer who
acquired Original Debentures directly from the Company or (iii) a
broker-dealer who acquired Original Debentures as a result of market making or
other trading activities) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Exchange Debentures are acquired in the ordinary course of business of such
holder and any beneficial owner, and such holders are not engaged in, and do
not intend to engage in, and have no arrangement or understanding with any
person to participate in, a distribution of such Exchange Debentures. Each
broker-dealer who acquired Original Debentures directly from the Company and
is participating in the Exchange Offer must comply with the registration and
prospectus delivery provisions of the Securities Act. Broker-dealers who
acquired Original Debentures as a result of market making or other trading
activities may use this Prospectus, as supplemented or amended, in connection
with resales of the Exchange Debentures. The Company has agreed that, for a
period of 120 days after this Registration Statement is declared effective by
the Commission, it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. Each broker-dealer who receives
Exchange Debentures pursuant to the Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Debentures. The Letter of Transmittal that is filed as an exhibit to the
Registration Statement of which this Prospectus is a part (the "Letter of
Transmittal") states that by so acknowledging and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. Any holder that cannot rely upon such
interpretations must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction.
The Original Debentures and the Exchange Debentures constitute
new issues of securities with no established public trading market. Any
Original Debentures not tendered and accepted in the Exchange Offer will
remain outstanding. To the extent that Original Debentures are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered, and
tendered but unaccepted, Original Debentures could be adversely affected.
Following consummation of the Exchange Offer, the holders of Original
Debentures will continue to be subject to the existing restrictions on
transfer thereof and the Company will have no further obligation to such
holders to provide for the registration under the Securities Act of the
Original Debentures except under certain limited circumstances. (See
"Original Debentures Registration Rights.") No assurance can be given as to
the liquidity of the trading market for either the Original Debentures or the
Exchange Debentures.
The Exchange Offer is not conditioned upon any minimum
aggregate principal amount of Original Debentures being tendered or accepted
for exchange. The Exchange Offer will expire at 5:00 p.m., New York City
time, on January 30, 1997, unless extended (the "Expiration Date"). The date
of acceptance for exchange of the Original Debentures (the "Exchange Date")
will be the first business day following the Expiration Date, upon surrender
of the Original Debentures. Original Debentures tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date;
otherwise such tenders are irrevocable.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------
The date of this Prospectus is December 26, 1996.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE EXCHANGE OFFER COVERED BY THIS PROSPECTUS.
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE EXCHANGE
DEBENTURES IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATIONS THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
TABLE OF CONTENTS
Page Page
---- ----
Available Information.......... 3 Federal Income Tax Consequences....... 15
Incorporation of Certain Consequences of Failure to Exchange... 15
Documents by Reference......... 4 Capitalization......................... 16
Prospectus Summary............. 5 Selected Historical Financial
The Company.................... 9 Information..................... 17
Use of Proceeds................ 9 Description of Debentures.............. 19
The Exchange Offer............. 9 General............................... 19
Purpose of the Exchange Offer. 9 Redemption............................ 19
Terms of the Exchange......... 10 Conditional Right to Shorten Maturity. 20
Expiration Date; Extensions; Consolidation, Merger or Sale by the
Termination; Amendments..... 10 Company............................. 20
How to Tender................. 11 Events of Default, Notice and Certain
Terms and Conditions of the Rights on Default................... 21
Letter of Transmittal....... 13 Limitation on Liens................... 22
Withdrawal Rights............. 13 Modification of the Indenture......... 23
Acceptance of Original Defeasance and Covenant Defeasance.... 23
Debentures for Exchange; Delivery and Form; Book-Entry
Delivery of Exchange Procedures.......................... 24
Debentures.................. 14 Governing Law......................... 25
Conditions to the Exchange Original Debentures Registration
Offer....................... 14 Rights.............................. 25
Exchange Agent................ 15 Plan of Distribution.................. 26
Solicitation of Tenders....... 15 Legal Matters......................... 27
Appraisal Rights.............. 15 Experts............................... 27
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-4 (which term
shall include all amendments, exhibits and schedules thereto) under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Exchange Debentures being offered hereby. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission, and to which reference is hereby made. Statements made in this
Prospectus as to the contents of any document referred to are not necessarily
complete. With respect to each such document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference. The Registration Statement may
be inspected, without charge, at the public reference facilities maintained by
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington. D.C. 20549 at prescribed rates.
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file reports and other information with
the Commission. Such reports and other information filed by the Company can
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 or at
the Commission's regional offices located at 7 World Trade Center, Suite 1300,
New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material may be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Such reports and other
information can also be inspected at the offices of the New York Stock
Exchange, Inc., where certain of the Company's debt securities are listed, 20
Broad Street, New York, New York 10005. In addition, the Commission maintains
a Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
Commission. The Company files electronically with the Commission. The
address of that Web site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996, June 30, 1996 and September 30, 1996 and Current Reports on Form 8-K
dated May 15, 1996 (as amended by Amendment No. 1 thereto), July 29, 1996 and
December 4, 1996 are incorporated by reference and made a part of this
Prospectus.
All documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein or
contained in this Prospectus shall be deemed to be supplemented, modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is, or
is deemed to be, incorporated by reference herein supplements, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom this Prospectus has been delivered, upon written or oral
request of any such person, a copy (without exhibits) of any and all of the
documents which have been or may be incorporated in this Prospectus by
reference to such documents. Requests for such copies should be directed to
Illinois Central Railroad Company, 455 North Cityfront Plaza Drive, Chicago,
Illinois 60611-5504, Attention: Corporate Relations, telephone number
(312) 755-7500.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE
NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE
WITHOUT CHARGE UPON WRITTEN OR ORAL REQUEST FROM THE CORPORATE RELATIONS
DEPARTMENT AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICES LOCATED AT 455 NORTH
CITYFRONT PLAZA DRIVE, CHICAGO, ILLINOIS, 60611-5504, TELEPHONE NUMBER (312)
755-7500. IN ORDER TO ENSURE TIMELY DELIVERY OF SUCH DOCUMENTS, ANY REQUEST
SHOULD BE MADE BY FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference
to the more detailed information included elsewhere or incorporated by
reference into this Prospectus. Unless the context otherwise required, the
term "Company" refers to Illinois Central Railroad Company and its
subsidiaries.
The Exchange Offer
The Exchange Offer... The Company is offering to exchange (the "Exchange
Offer") $125,000,000 aggregate principal amount of
7.70% Debentures due 2096 (the "Exchange
Debentures") for $125,000,000 aggregate principal
amount of its outstanding 7.70% Debentures due 2096
(the "Original Debentures"). The Original
Debentures were issued and sold by the Company on
December 17, 1996 in a transaction exempt from
registration under Section 4(2) of, and Rule 144A
under, the Securities Act. See "The Exchange
Offer--Purpose of the Exchange Offer." The form and
terms of the Exchange Debentures are substantially
similar (including principal amount, interest rate,
redemption provisions, maturity and ranking) to the
form and terms of the Debentures for which they may
be exchanged pursuant to the Exchange Offer, except
that the Exchange Debentures are freely
transferable by holders thereof except as provided
herein (see "The Exchange Offer--Terms of the
Exchange" and "--Terms and Conditions of the Letter
of Transmittal") and are not subject to any
covenant regarding registration under the
Securities Act.
Exchange Debentures issued pursuant to the Exchange
Offer in exchange for the Original Debentures may
be offered for resale, resold or otherwise
transferred by holders thereof (other than any
holder which is (i) an Affiliate of the Company,
(ii) a broker-dealer who acquired Original
Debentures directly from the Company or (iii) a
broker-dealer who acquired Original Debentures as a
result of market making or other trading
activities), without compliance with the
registration and prospectus delivery provisions of
the Securities Act provided that such Exchange
Debentures are acquired in the ordinary course of
such holders' business and such holders are not
engaged in, and do not intend to engage in, and
have no arrangement or understanding with any
person to participate in, a distribution of such
Exchange Debentures. Each broker-dealer who
acquired Original Debentures directly from the
Company and is participating in the Exchange Offer
must comply with the registration and prospectus
delivery provisions of the Securities Act. Each
broker-dealer who receives Exchange Debentures
pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection
with any resale of such Exchange Debentures. The
Letter of Transmittal states that by so
acknowledging, and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the
Securities Act.
Minimum Condition.... The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Original
Debentures being tendered or accepted for exchange.
Expiration Date...... The Exchange Offer will expire at 5:00 p.m., New York
City time, on January 30, 1997 unless extended (the
"Expiration Date").
Exchange Date........ Letters of Transmittal must be received no later than
the Expiration Date to reflect an exchange of
Original Debentures for Exchange Debentures on the
Exchange Date. The first date of acceptance for
exchange for the Original Debentures will be the
first business day following the Expiration Date.
Conditions to the
Exchange Offer..... The obligation of the Company to consummate the
Exchange Offer is subject to certain conditions.
See "The Exchange Offer--Conditions to the Exchange
Offer." The Company reserves the right to terminate
or amend the Exchange Offer at any time prior to
the Expiration Date upon the occurrence of any such
condition.
Withdrawal Rights.... Tenders may be withdrawn at any time prior to the
Expiration Date. Any Original Debentures not
accepted for any reason will be returned without
expense to the tendering holders thereof as
promptly as practicable after the expiration or
termination of the Exchange Offer.
Procedures for
Tendering Original
Debentures......... See "The Exchange Offer--How to Tender."
Federal Income Tax
Consequences....... There will be no Federal income tax consequences to
Holders exchanging Original Debentures for Exchange
Debentures pursuant to the Exchange Offer. An
exchanging Holder will have the same adjusted basis
and holding period in the Exchange Debentures as it
had in the Original Debentures immediately before
the exchange and in general will be subject to the
same Federal income tax treatment as if it had
continued to hold the Original Debentures.
Effect on Holders of
Original
Debentures......... As a result of the making of this Exchange Offer, and
upon acceptance for exchange of all validly
tendered Original Debentures pursuant to the terms
of this Exchange Offer, the Company will have
fulfilled a covenant contained in the terms of the
Original Debentures and the Registration Rights
Agreement (the "Registration Rights Agreement")
dated as of December 17, 1996 among the Company,
Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated as initial purchasers
(collectively, the "Initial Purchasers"), and,
accordingly, the holders of the Original Debentures
will have no further registration or other rights
under the Registration Rights Agreement, except
under certain limited circumstances. See "Original
Debentures Registration Rights." Holders of the
Original Debentures who do not tender their
Original Debentures in the Exchange Offer will
continue to hold such Original Debentures and will
be entitled to all the rights and limitations
applicable thereto under the Indenture. All
untendered, and tendered but unaccepted, Original
Debentures will continue to be subject to the
restrictions on transfer provided for in the
Original Debentures and the Indenture. To the
extent that Original Debentures are tendered and
accepted in the Exchange Offer, the trading market,
if any, for the Original Debentures could be
adversely affected.
Consequences of Failure
to Exchange........ Holders of Original Debentures who do not exchange
their Original Debentures for Exchange Debentures
pursuant to the Exchange Offer will continue to be
subject to the restrictions on transfer of such
Original Debentures as set forth in the legend
thereon as a consequence of the issuance of the
Original Debentures pursuant to exemptions from, or
in transactions not subject to, the registration
requirements of the Securities Act and applicable
state securities laws. In general, the Original
Debentures may not be offered or sold, unless
registered under the Securities Act and applicable
state securities laws, or pursuant to an exemption
therefrom. Except under certain limited
circumstances, the Company does not intend to
register the Original Debentures under the
Securities Act. In addition, any holder of
Original Debentures who tenders in the Exchange
Offer for the purpose of participating in a
distribution of the Exchange Debentures may be
deemed to have received restricted securities and,
if so, will be required to comply with the
registration and prospectus delivery requirements
of the Securities Act in connection with any resale
transaction. To the extent Original Debentures are
tendered and accepted in the Exchange Offer, the
trading market, if any, for the Original Debentures
could be adversely affected. See "The Exchange
Offer" and "Original Debentures Registration
Rights."
Terms of the Debentures
Securities Offered... $125,000,000 principal amount of 7.70%
Debentures due 2096.
Maturity Date........ September 15, 2096.
Interest Payment
Dates.............. Interest on the Debentures will be payable in cash
semi-annually on March 15 and September 15 of each
year, commencing March 15, 1997.
Optional Redemption.. The Debentures are not redeemable prior to September
15, 2026. On and after September 15, 2026, the
Debentures are redeemable at the option of the
Company, in whole or in part, initially at a
redemption price equal to 102.92% of the principal
amount of such Debentures and thereafter up to and
including September 14, 2046 at declining prices
and thereafter at a redemption price equal to 100%
of the principal amount of such Debentures, in each
case together with accrued and unpaid interest and
Liquidated Damages, if any, to the date of
redemption. See "Description of
Debentures--Optional Redemption."
Conditional Right to
Shorten Maturity... Upon occurrence of a "Tax Event" relating to the
deductibility of interest paid by the Company on
the Debentures, the Company will have the right to
shorten the maturity of the Debentures to the
extent required, in the opinion of a nationally
recognized independent tax counsel, so that, after
the shortening of the maturity, interest paid on
the Debentures will be deductible for Federal
income tax purposes.
Ranking.............. The Debentures will be general unsecured obligations
of the Company, and will rank pari passu in right
of payment to all existing and future senior
unsecured indebtedness of the Company. As of
September 30, 1996, after giving pro forma effect
to the issuance of the Debentures, the Company
would have had approximately $567 million of senior
unsecured indebtedness outstanding. See
"Capitalization" and "Description of Debentures."
THE COMPANY
The Company traces its origin to 1851, when the Railroad was
incorporated as the nation's first land grant railroad. Today, the Railroad
operates 2,700 miles of main line track between Chicago and the Gulf of
Mexico, primarily carrying chemicals, coal and paper north, with coal, grain
and milled grain products moving south along its lines. The Railroad is a
wholly-owned subsidiary and a principal asset of Illinois Central Corporation
("IC"). The principal executive office of the Railroad is located at 455
North Cityfront Plaza Drive, Chicago, Illinois 60611-5504 and its telephone
number is (312) 755-7500.
USE OF PROCEEDS
There will be no proceeds to the Company from the exchange
pursuant to the Exchange Offer. The net proceeds from the issuance of the
Original Debentures were approximately $123 million. The Company intends to
use such net proceeds for general corporate purposes, including but not
limited to paying commercial paper as it matures, funding the cost of any
settlement with one of the Company's unions and expenditures with respect to
the bulk commodities terminal facility being constructed in Louisiana. At
October 31, 1996, the total indebtedness of the Company was $513 million, of
which $64 million was commercial paper with an average maturity of 38.9 days
and an average interest rate per annum of 5.621%. Initially, the Company will
repay $50 million of its commercial paper. The balance of the net proceeds
will be invested in investment grade temporary cash investments pending the
outcome of the vote on three settlement options contained in a proposed
contract settlement with the United Transportation Union (the "UTU"). The
Company estimates that one of the three options contained in the agreement
could require a one-time payment of up to $40 million. If the UTU does not
elect the option requiring the one-time payment, then the net proceeds may be
used to fund a portion of the estimated $45 million construction cost of the
bulk commodities terminal facility in Louisiana to be incurred in 1997.
THE EXCHANGE OFFER
Purpose of the Exchange Offer
The sole purpose of the Exchange Offer is to fulfill the
obligations of the Company with respect to the registration of the Original
Debentures.
The Original Debentures were originally issued and sold on
December 17, 1996 (the "Issue Date"). Such sales were not registered under
the Securities Act in reliance upon the exemption provided by Section 4(2) of
the Securities Act and Rule 144A under the Securities Act. In connection with
the sale of the Original Debentures, the Company agreed to file with the
Commission a registration statement relating to an exchange offer (the
"Exchange Offer Registration Statement") pursuant to which the Exchange
Debentures, another form of debentures of the Company covered by such
registration statement and containing substantially similar terms as the
Original Debentures, except as set forth in this Prospectus, would be offered
in exchange for Original Debentures tendered at the option of the holders
thereof. If (i) the Company determines in reasonably good faith that (x) any
changes in the law of the applicable interpretations of the Staff of the
Commission do not permit the Company to effect the Exchange Offer, or (y) that
the Exchange Debentures would not be tradeable upon receipt by the holders of
Original Debentures that participate in the Exchange Offer without restriction
under state and federal securities laws (other than due solely to the status
of a holder of Original Debentures as an Affiliate of the Company), (ii) the
Exchange Offer is not consummated within 210 days of the Issue Date, (iii) in
certain circumstances, certain holders of unregistered Exchange Debentures so
request within 180 days after the consummation of the Exchange Offer or (iv)
in the case of any holder of Original Debentures that participates in the
Exchange Offer, such holder of Original Debentures does not receive Exchange
Debentures on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the status
of such holder of Original Debentures as an Affiliate of the Company) and so
notifies the Company within 60 days after such holder of Original Debentures
first becomes aware of such restriction and provides the Company with a
reasonable basis for its conclusion, in the case of each of clauses (i)-(iv)
of this sentence, the Company will file with the Commission a registration
statement (the "Shelf Registration Statement") to cover resales of the
Original Debentures by the holders thereof who satisfy certain conditions
relating to the provision of information in connection with the Shelf
Registration Statement. In the event that (i) the Company fails to file the
Exchange Offer Registration Statement, (ii) the Exchange Offer Registration
Statement or, if applicable, the Shelf Registration Statement, is not declared
effective by the Commission, or (iii) the Exchange Offer is not consummated
or the Shelf Registration Statement ceases to be effective, in each case
within specified time periods, the Company is required to pay liquidated
damages to the holders of the Original Debentures. See "Original Debentures
Registration Rights."
Terms of the Exchange
The Company hereby offers to exchange, upon the terms and
subject to the conditions set forth herein and in the Letter of Transmittal
accompanying this Registration Statement of which this Prospectus is a part
(the "Letter of Transmittal"), $1,000 in principal amount of Exchange
Debentures for each $1,000 in principal amount of Original Debentures. The
terms of the Exchange Debentures are substantially similar to the terms of the
Original Debentures for which they may be exchanged pursuant to this Exchange
Offer, except that the Exchange Debentures will generally be freely
transferable by holders thereof, and the holders of the Exchange Debentures
(as well as remaining holders of any Original Debentures) will not be entitled
to registration rights under the Registration Rights Agreement. The Exchange
Debentures will evidence the same debt as the Original Debentures and will be
entitled to the benefits of the Indenture. See "Description of the
Debentures."
The Exchange Offer is not conditioned upon any minimum
aggregate principal amount of Original Debentures being tendered or accepted
for exchange.
Based on its view of interpretations set forth in no-action
letters issued by the Staff to third parties, the Company believes that
Exchange Debentures issued pursuant to the Exchange Offer in exchange for the
Original Debentures may be offered for resale, resold and otherwise
transferred by holders thereof (other than any holder of any such other person
which is (i) an Affiliate of the Company, (ii) a broker-dealer who acquired
Original Debentures directly from the Company or (iii) a broker-dealer who
acquired Original Debentures as a result of market making or other trading
activities) without compliance with the registration and prospectus delivery
provisions of the Securities Act provided that such Exchange Debentures are
acquired in the ordinary course of business of such holder and any beneficial
owner, and such holders are not engaged in, and do not intend to engage in,
and have no arrangement or understanding with any person to participate in, a
distribution of such Exchange Debentures. Each broker-dealer who acquired
Original Debentures directly from the Company and is participating in the
Exchange Offer must comply with the registration and prospectus delivery
provisions of the Securities Act. Broker-dealers who acquired Original
Debentures as a result of market making or other trading activities may use
this Prospectus, as supplemented or amended, in connection with resales of the
Exchange Debentures. The Company has agreed that, for a period of 120 days
after this Registration Statement is declared effective, it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. Each broker-dealer who receives Exchange Debentures pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Debentures. The Letter of
Transmittal states that by so acknowledging, and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. Any holder that cannot rely upon such
interpretations must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction.
Tendering holders of Original Debentures will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of the
Original Debentures pursuant to the Exchange Offer.
Interest on the Exchange Debentures will accrue (i) from the
last interest payment date on which interest was paid on the Original
Debentures surrendered in exchange therefor or (ii) if no interest has been
paid on the Original Debentures, from the original issue date of the Original
Debentures.
Expiration Date; Extensions; Termination; Amendments
The Exchange Offer expires on the Expiration Date. The term
"Expiration Date" means 5:00 p.m., New York City time, on January 30, 1997
unless the Company in its sole discretion extends the period during which the
Exchange Offer is open, in which event the term "Expiration Date" means the
latest time and date on which the Exchange Offer, as so extended by the
Company, expires. The Company reserves the right to extend the Exchange Offer
at any time and from time to time prior to the Expiration Date by giving
written notice to The Chase Manhattan Bank (the "Exchange Agent") and by
timely public announcement communicated by no later than 5:00 p.m. on the next
business day following the Expiration date, unless otherwise required by
applicable law or regulation, but making a release to the Dow Jones News
Service. During any extension of the Exchange Offer, all Original Debentures
previously tendered pursuant to the Exchange Offer will remain subject to the
Exchange Offer.
The initial Exchange Date will be the first business day
following the Expiration Date. The Company expressly reserves the right to
(i) terminate the Exchange Offer and not accept for exchange any Original
Debentures for any reason, including if any of the events set forth below
under "Condition to the Exchange Offer" shall have occurred and shall not have
been waived by the Company and (ii) amend the terms of the Exchange Offer in
any manner, whether before or after any tender of the Original Debentures. If
any such termination or amendment occurs, the Company will notify the Exchange
Agent in writing and will either issue a press release or give written notice
to the holders of the Original Debentures as promptly as practicable. Unless
the Company terminates the Exchange Offer prior to 5:00 p.m., New York City
time, on the Expiration Date, the Company will exchange the Exchange
Debentures for the Original Debentures on the Exchange Date.
If the Company waives any material condition to the Exchange
Offer, or amends the Exchange Offer in any other material respect, and if at
the time that notice of such waiver or amendment is first published, sent or
given to holders of Original Debentures in the manner specified above, the
Exchange Offer is scheduled to expire at any time earlier than the expiration
of a period ending on the fifth business day from and including, the date that
such notice is first so published, sent or given, then the Exchange Offer will
be extended until the expiration of such period of five business days. If
there is an increase or decrease in the consideration offered for the Original
Debentures, or a decrease in the percentage of Exchange Debentures offered by
the Company in exchange for Original Debentures, notice of such increase or
decrease shall be published, sent or given to all holders of Original
Debentures in the manner specified above and the Exchange Offer will be
extended at least ten business days from when such notice is first published,
sent or given to the holders of Original Debentures.
The Company will file a post-effective amendment to the
Registration Statement of which this Prospectus is a part, and mail or
otherwise deliver copies of such amendment to holders of the Original
Debentures, if any one of the following events arises after the Registration
Statement of which this Prospectus is a part has been declared effective by
the Commission: (a) the Company materially amends the Exchange Offer or (b)
any facts or events arise which individually, or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement,
or the information set forth under the caption "Plan of Distribution" therein.
This Prospectus and the related Letter of Transmittal and other
relevant materials will be mailed by the Company to record holders of Original
Debentures and will be furnished to brokers, banks and similar persons whose
names, or the names of whose nominees, appear on the lists of holders for
subsequent transmittal to beneficial owners of Original Debentures.
How to Tender
The tender to the Company of Original Debentures by a holder
thereof pursuant to one of the procedures set forth below will constitute an
agreement between such holder and the Company in accordance with the terms and
subject to the conditions set forth herein and in the Letter of Transmittal.
General Procedures. A holder of an Original Debenture may
tender the same by (i) properly completing and signing the Letter of
Transmittal or a facsimile thereof (all references in this Prospectus to the
Letter of Transmittal shall be deemed to include a facsimile thereof) and
delivering the same, together with the certificate or certificates
representing the Original Debentures being tendered and any required signature
guarantees (or a timely confirmation of a book entry transfer (a "Book Entry
Confirmation") pursuant to the procedure described below), to the Exchange
Agent at its address set forth on the back cover of this Prospectus on or
prior to the Expiration Date or (ii) complying with the guaranteed delivery
procedures described below.
If tendered Original Debentures are registered in the name of
the signer of the Letter of Transmittal and the Exchange Debentures to be
issued in exchange therefor are to be issued (and any untendered Original
Debentures are to be reissued) in the name of the registered holder, the
signature of such signer need not be guaranteed. In any other case, the
tendered Original Debentures must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed
by the registered holder and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Exchange Act. If the
Exchange Debentures and/or Original Debentures not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the Debenture register for the Original Debentures, the signature on the
Letter of Transmittal must be guaranteed by an Eligible Institution.
Any beneficial owner whose Original Debentures are registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee and who wishes to tender Original Debentures should contact such
holder promptly and instruct such holder to tender Original Debentures on such
beneficial owner's behalf. If such beneficial owner wishes to tender such
Original Debentures himself, such beneficial owner must, prior to completing
and executing the Letter of Transmittal and delivering such Original
Debentures either make appropriate arrangements to register ownership of the
Original Debentures in such beneficial owner's name or follow the procedures
described in the immediately preceding paragraph. The transfer of record
ownership may take considerable time.
Book-Entry Transfer. The Exchange Agent will make a request to
establish an account with respect to the Original Debentures at the Depositary
Trust Company (the "Depositary") for purposes of the Exchange Offer within two
business days after receipt of this Prospectus, and any financial institution
that is a participant in the Depositary may make book-entry delivery of
Original Debentures by causing the Depositary to transfer such Original
Debentures into the Exchange Agent's account at the Depositary in accordance
with the Depositary's procedures for transfer. However, although delivery of
Original Debentures may be effected through book entry transfer at the
Depositary, the Letter of Transmittal, with any required signature guarantees
or an Agent's Message (as defined below) in connection with a book-entry
transfer and any other required documents, must, in any case, be transmitted
to and received by the Exchange Agent at the address specified on the back
cover page of this Prospectus on or prior to the Expiration Date or the
guaranteed delivery procedures describe below must be complied with.
A holder may tender Original Debentures that are held through
the Depositary by transmitting its acceptance through the Depositary's
Automatic Tender Offer Program ("ATOP"), for which the transaction will be
eligible, and the Depositary will then edit and verify the acceptance and send
an Agent's Message to the Exchange Agent for its acceptance. The term
"Agent's Message" means a message transmitted by the Depositary to, and
received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that the Depositary has received an express
acknowledgment from each participant in the Depositary tendering the Original
Debentures and that such participant has received the Letter of Transmittal
and agrees to be bound by the terms of the Letter of Transmittal and the
Company may enforce such agreement against such participant.
THE METHOD OF DELIVERY OF ORIGINAL DEBENTURES AND ALL OTHER
DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS
RECOMMENDED THAT REGISTERED MAIL, RETURN RECEIPT REQUESTED, BE USED, PROPER
INSURANCE BE OBTAINED, AND THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
Guaranteed Delivery Procedures. If a holder desires to accept
the Exchange Offer and time will not permit a Letter of Transmittal or
Original Debentures to reach the Exchange Agent before the Expiration Date, a
tender may be effected if the Exchange Agent has received at its office listed
on the back cover hereof on or prior to the Expiration Date a letter, telegram
or facsimile transmission from an Eligible Institution setting forth the name
and address of the tendering holder, the principal amount of the Original
Debentures being tendered, the names in which the Original Debentures are
registered and, if possible, and if applicable, the certificate numbers of the
Original Debentures to be tendered, and stating that the tender is being made
thereby and guaranteeing that within three New York Stock Exchange trading
days after the date of execution of such letter, telegram or facsimile
transmission by the Eligible Institution, the Original Debentures, in proper
form for transfer, will be delivered by such Eligible Institution together
with a properly completed and duly executed Letter of Transmittal (and any
other required documents). Unless Original Debentures being tendered by the
above-described method (or a timely Book-Entry Confirmation) are deposited
with the Exchange Agent within the time period set forth above (accompanied or
preceded by a properly completed Letter of Transmittal (or facsimile thereof)
and any other required documents), or a properly completed Agent's Message is
received by the Exchange Agent within the time period set forth above, the
Company may, at its option, reject the tender. Copies of a Notice of
Guaranteed Delivery which may be used by Eligible Institutions for the
purposes described in this paragraph are available from the Exchange Agent.
A tender will be deemed to have been received as of the date
when the tendering holder's properly completed and duly signed Letter of
Transmittal accompanied by the Original Debentures (or a timely Book-Entry
Confirmation) or properly completed Agent's Message, is received by the
Exchange Agent. Issuances of Exchange Debentures in exchange for Original
Debentures tendered pursuant to a Notice of Guaranteed Delivery or letter,
telegram or facsimile transmission to similar effect (as provided above) by an
Eligible Institution will be made only against deposit of the Letter of
Transmittal (and any other required documents) and the tendered Original
Debentures (or a timely Book-Entry Confirmation).
All questions as to the validity, form, eligibility (including
time of receipt) and acceptance for exchange of any tender of Original
Debentures will be determined by the Company, whose determination will be
final and binding. The Company reserves the absolute right to reject any or
all tenders not in proper form or the acceptances for exchange of which may,
in the opinion of counsel to the Company, be unlawful. The Company also
reserves the absolute right to waive any of the conditions of the Exchange
Offer or any defect or irregularities in tenders of any particular holder
whether or not similar defects or irregularities are waived in the case of
other holders. Neither the Company, the Exchange Agent nor any other person
will be under any duty to give notification of any defects or irregularities
in tenders or shall incur any liability for failure to give any such
notification. The Company's interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding.
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, the
following terms and conditions, which are part of the Exchange Offer.
The party tendering Original Debentures for exchange (the
"Transferor") thereby exchanges, assigns and transfers the Original Debentures
to the Company and irrevocably constitutes and appoints the Exchange Agent as
the Transferor's agent and attorney-in-fact to cause the Original Debentures
to be assigned, transferred and exchanged. The Transferor represents and
warrants that it has full power and authority to tender, exchange, assign and
transfer the Original Debentures and to acquire Exchange Debentures issuable
upon the exchange of such tendered Original Debentures, and that, when the
same are accepted for exchange, the Company will acquire good and unencumbered
title to the tendered Original Debentures, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim.
The Transferor also warrants that it will, upon request, execute and deliver
any additional documents deemed by the Company to be necessary or desirable to
complete the exchange, assignment and transfer of tendered Original
Debentures. The Transferor further agrees that acceptance of any tendered
Original Debentures by the Company and the issuance of Exchange Debentures in
exchange therefor shall constitute performance in full by the Company of its
obligations under the Registration Rights Agreement and that the Company shall
have no further obligations or liabilities thereunder (except in certain
limited circumstances). All authority conferred by the Transferor will
survive the death or incapacity of the Transferor and every obligation of the
Transferor shall be binding upon the heirs, legal representatives, successors,
assigns, executors and administrators of such Transferor.
By tendering Original Debentures and executing the Letter of
Transmittal, the Transferor certifies (a) that it is not an Affiliate of the
Company, that it is not a broker-dealer that owns Original Debentures acquired
directly from the Company or an affiliate of the Company, that it is acquiring
the Exchange Debentures offered hereby in the ordinary course of such
Transferor' business and that such Transferor has no arrangement with any
person to participate in the distribution of such Exchange Debentures; (b)
that it is an Affiliate of the Company or of the Initial Purchasers of the
Original Debentures in the Initial Offering and that it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable to it; or (c) that it is a participating broker-dealer and
that it will deliver a prospectus in connection with any resale of the
Exchange Debentures.
Withdrawal Rights
Original Debentures tendered pursuant to the Exchange Offer may
be withdrawn at any time prior to the Expiration Date.
For a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Exchange
Agent at its address set forth on the back cover of this Prospectus prior to
the Expiration Date. Any such notice of withdrawal must specify the person
named in the Letter of Transmittal as having tendered Original Debentures to
be withdrawn, the certificate numbers of Original Debentures to be withdrawn,
the principal amount of Original Debentures to be withdrawn, a statement that
such holder is withdrawing his election to have such Original Debentures
exchanged, and the name of the registered holder of such Original Debentures,
and must be signed by the holder in the same manner as the original signature
on the Letter of Transmittal (including any required signature guarantees) or
be accompanied by evidence satisfactory to the Company that the person
withdrawing the tender has succeeded to the beneficial ownership of the
Original Debentures being withdrawn. The Exchange Agent will return the
properly withdrawn Original Debentures promptly following receipt of notice of
withdrawal. All questions as to the validity of notices of withdrawals,
including time of receipt, will be determined by the Company, and such
determination will be final and binding on all parties.
Acceptance of Original Debentures for Exchange; Delivery of Exchange Debentures
Upon the terms and subject to the conditions of the Exchange
Offer, the acceptance for exchange of Original Debentures validly tendered and
not withdrawn and the issuance of the Exchange Debentures will be made on the
Exchange Date. For the purposes of the Exchange Offer, the Company shall be
deemed to have accepted for exchange validly tendered Original Debentures
when, as and if the Company has given written notice thereof to the Exchange
Agent.
The Exchange Agent will act as agent for the tendering holders
of Original Debentures for the purposes of receiving Exchange Debentures from
the Company and causing the Original Debentures to be assigned, transferred
and exchanged. Upon the terms and subject to the conditions of the Exchange
Offer, delivery of Exchange Debentures to be issued in exchange for accepted
Original Debentures will be made by the Exchange Agent promptly after
acceptance of the tendered Original Debentures not accepted for exchange by
the Company will be returned without expense to the tendering holders (or in
the case of Original Debentures tendered by book-entry transfer into the
Exchange Agent's account at the Depositary pursuant to the procedures
described above, such non-exchanged Original Debentures will be credited to an
account maintained with such Depositary) promptly following the Expiration Date
or, if the Company terminates the Exchange Offer prior to the Expiration Date,
promptly after the Exchange Offer is so terminated.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, or
any extension of the Exchange Offer, the Company will not be required to issue
Exchange Debentures in respect of any properly tendered Original Debentures
not previously accepted and may terminate the Exchange Offer (by oral or
written notice to the Exchange Agent and by timely public announcement
communicated by no later than 9:00 a.m. on the next business day following
the Expiration Date, unless otherwise required by applicable law or
regulation, by making a release to the Dow Jones News Serviced or, at its
option, modify or otherwise amend the Exchange Offer, if (a) there shall be
threatened, instituted or pending any action or proceeding before, or any
injunction, order or decree shall have been issued by, any court or
governmental agency or other governmental regulatory or administrative
agency or commission, (i) seeking to restrain or prohibit the making of
consummation of the Exchange Offer or any other transaction contemplated by
the Exchange Offer, (ii) assessing or seeking any damages as a result
thereof, or (iii) resulting in a material delay in the ability of the
Company to accept for exchange or exchange some or all of the Original
Debentures pursuant to the Exchange Offer; (b) any statute, rule,
regulation, order or injunction shall be sought, proposed, introduced,
enacted, promulgated or deemed applicable to the Exchange Offer or any of
the transactions contemplated by the Exchange Offer by any government or
governmental authority, domestic or foreign, or any action shall have been
taken, proposed or threatened, by any government, governmental authority,
agency or court, domestic or foreign that in the reasonable judgment of the
Company might directly or indirectly result in any of the consequences
referred to in clauses (a)(i) or (ii) above or, in the reasonable judgment
of the Company, might result in the holders of Exchange Debentures having
obligations with respect to resales and transfers of Exchange Debentures
which are greater than those described in the interpretations of the
Commission referred to on the cover page of this Prospectus, or would
otherwise make it inadvisable to proceed with the Exchange Offer; or (c) a
material adverse change shall have occurred in the business, condition
(financial or otherwise), operations, or prospects of the Company.
The foregoing conditions are for the sole benefit of the
Company and may be asserted by it with respect to all or any portion of the
Exchange Offer regardless of the circumstances (including any action or
inaction by the Company) giving rise to such condition or may be waived by the
Company in whole or in part at any time or from time to time in their sole
discretion. The failure by the Company at any time to exercise any of the
foregoing rights will not be deemed a waiver of any such right, and each right
will be deemed an ongoing right which may be asserted at any time or from time
to time. In addition, the Company has reserved the right, notwithstanding the
satisfaction of each of the foregoing conditions, to terminate or amend the
Exchange Offer.
Any determination by the Company concerning the fulfillment or
non-fulfillment of any conditions will be final and binding upon all parties.
In addition, the Company will not accept for exchange any
Original Debentures tendered and no Exchange Debentures will be issued in
exchange for any such Original Debentures, if at such time any stop order
shall be threatened or in effect with respect to the Registration Statement of
which this Prospectus constitutes a part or qualification of the Indenture
under the Trust Indenture Act of 1939 as amended (the "Trust Indenture Act").
Exchange Agent
The Chase Manhattan Bank has been appointed as the Exchange
Agent for the Exchange Offer. Letters of Transmittal must be addressed to the
Exchange Agent at its address set forth on the back cover page of this
Prospectus.
Delivery to an address other than as set forth herein, or
transmissions of instructions via a facsimile or telex number other than the
ones set forth herein, will not constitute a valid delivery.
Solicitation of Tenders
The Company has not retained any dealer-manager or similar
agent in connection with the Exchange Offer and will not make any payments to
brokers, dealers or others for soliciting acceptances of the Exchange Offer.
The Company will, however, pay the Exchange Agent reasonable and customary
fees for its services, and will reimburse it for reasonable out-of-pocket
expenses in connection therewith. The Company will also pay brokerage houses
and other custodians, nominees and fiduciaries the reasonable out-of-pocket
expenses incurred by them in forwarding tenders for their customers. The
expenses to be incurred in connection with the Exchange Offer, including the
fees and expenses of the Exchange Agent and printing, accounting and legal
fees, will be paid by the Company and are estimated at approximately $100,000.
No person has been authorized to give any information or to
make any representations in connection with the Exchange Offer other than
those contained in this Prospectus. If given or made, such information or
representations should not be relied upon as having been authorized by the
Company. Neither the delivery of this Prospectus nor any exchange made
hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the respective dates as
of which information is given herein. The Exchange Offer is not being made to
(nor will tenders be accepted from or on behalf of) holders of Original
Debentures in any jurisdiction in which the making of the Exchange Offer or
the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, the Company may, at its discretion, take such action
as it may deem necessary to make the Exchange Offer in any such jurisdiction
and extend the Exchange Offer to holders of Original Debentures in such
jurisdiction. In any jurisdiction the securities laws or blue sky laws of
which require the Exchange Offer to be made by a licensed broker or dealer,
the Exchange Offer is being made on behalf of the Company by one or more
registered brokers or dealers which are licensed under the laws of such
jurisdiction.
Appraisal Rights
HOLDERS OF ORIGINAL DEBENTURES WILL NOT HAVE DISSENTERS' RIGHTS
OR APPRAISAL RIGHTS IN CONNECTION WITH THE EXCHANGE OFFER.
Federal Income Tax Consequences
There will be no Federal income tax consequences to Holders
exchanging Original Debentures for Exchange Debentures pursuant to the
Exchange Offer. An exchanging Holder will have the same adjusted basis and
holding period in the Exchange Debentures as it had in the Original Debentures
immediately before the exchange and in general will be subject to the same
Federal income tax treatment as if it had continued to hold the Original
Debentures.
Consequences of Failure to Exchange
Participation in the Exchange Offer is voluntary and holders
should carefully consider whether to accept. Holders of the Original
Debentures are urged to consult their financial and tax advisors in making
their own decisions on what action to take.
As a result of the making of, and upon acceptance for exchange
of all validly tendered Original Debentures pursuant to the terms of this
Exchange Offer, the Company will have fulfilled a covenant contained in the
terms of the Original Debentures and the Registration Rights Agreement.
Holders of the Original Debentures who do not tender their certificates in the
Exchange Offer will continue to hold such certificates and will be entitled to
all the rights, and limitations applicable thereto, under the Indenture,
except for any such rights under the Registration Rights Agreement, which by
their terms terminate or cease to have further effect as a result of the
making of this Exchange Offer. See "Description of the Debentures." Holders
of Original Debentures who do not exchange their Original Debentures for
Exchange Debentures pursuant to the Exchange Offer will continue to be subject
to the restrictions on transfer of such Original Debentures as set forth in
the legend thereon as a consequence of the issuance of the Original Debentures
pursuant to exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable state
securities laws. In general, the Original Debentures may not be offered or
sold, unless registered under the Securities Act and applicable state
securities laws, or pursuant to an exemption therefrom. Except under certain
limited circumstances, the Company does not intend to register the Original
Debentures under the Securities Act. In addition, any holder of Original
Debentures who tenders in the Exchange Offer for the purpose of participating
in a distribution of the Exchange Debentures may be deemed to have received
restricted securities and, if so, will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. To the extent that Original
Debentures are tendered and accepted in the Exchange Offer, the trading
market, if any, for the Original Debentures could be adversely affected.
The Company may in the future seek to acquire untendered
Original Debentures in open market or privately negotiated transactions,
through subsequent exchange offers or otherwise. The Company has no present
plan to acquire any Original Debentures which are not tendered in the Exchange
Offer.
CAPITALIZATION
The following table sets forth the consolidated capitalization
of the Company as of September 30, 1996 and as adjusted to give effect to the
issuance of the Original Debentures and application of the net proceeds
thereof.
September 30, 1996
-------------------------
Outstanding As Adjusted
----------- -----------
(dollars in millions)
Cash and temporary cash investments................. $8.5 $81.5
====== ========
Total debt.......................................... $511.4 $586.4
Stockholder's equity:
Common stock, $1.00 par value; 100 shares
authorized; 100 shares issued and outstanding.... - -
Additional paid-in capital......................... 129.5 129.5
Retained income.................................... 331.0 331.0
------ --------
Total capitalization............................. $971.9 $1,046.9
====== ========
The holders of the Debentures may be entitled to liquidated
damages in certain circumstances if the Company does not meet its registration
requirements with respect to the Debentures. See "Original Debentures
Registration Rights."
SELECTED HISTORICAL FINANCIAL INFORMATION
The selected historical financial information set forth below
at December 31, 1995, 1994, 1993, 1992 and 1991 and for the years then ended
has been derived from the Company's consolidated financial statements, which
have been audited by Arthur Andersen LLP, independent public accountants. The
selected historical financial information set forth below at September 30,
1996 and for the nine month periods ended September 30, 1996 and 1995 has been
derived from the Company's unaudited interim financial statements, which in
the opinion of the Company's management include all adjustments, consisting
only of normal recurring adjustments, necessary for a fair presentation of the
results of operations for the unaudited interim periods. Interim operating
results and balance sheet information are not necessarily indicative of the
operating results or financial condition that may be expected for the full
year. The selected historical financial information set forth below should be
read in conjunction with the Company's consolidated financial statements and
Debentures thereto and Management's Discussion and Analysis of Financial
Condition and Results of Operations with respect thereto incorporated herein
by reference.
<TABLE>
<CAPTION>
Nine Months ended
September 30,
(unaudited) Year Ended December 31,
--------------------- --------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
(dollars in millions)
Income Statement Data:
Revenues............................. $462.8 $485.8 $643.8 $593.9 $564.7 $547.4 $549.7
Operating expenses before
special charge...................... 297.8 319.1 421.9 401.5 387.1 388.2 404.6
Special charge....................... -- -- -- -- -- 8.9 --
------- ------ ------ ------ ------ ------ ------
Operating income..................... 165.0 166.7 221.9 192.4 177.6 150.3 145.1
Other income (expense), net.......... 1.7 2.2 2.7 4.5 2.8 3.6 7.0
Interest expense, net................ (19.7) (20.4) (26.3) (26.0) (31.8) (42.9) (56.1)
------- ------ ------ ------ ------ ------ ------
Income before income taxes,
extraordinary item and
cumulative effect of changes
in accounting principles............ 147.0 148.5 198.3 170.9 148.6 111.0 96.0
Provisions for income taxes.......... 57.1 55.7 67.1 58.2 56.6 37.7 30.7
------- ------ ------ ------ ------ ------ ------
Income before extraordinary
item and cumulative effect of
changes in accounting
principles.......................... 89.9 92.8 131.2 112.7 92.0 73.3 65.3
Extraordinary item, net.............. -- (11.4) (11.4) -- (23.4) -- --
Cumulative effect of changes in
accounting principles.............. -- -- -- -- (0.1) 23.7 --
------- ------ ------ ------ ------ ------ ------
Net income........................... $89.9 $81.4 $119.8 $112.7 $68.5 $97.0 $65.3
======= ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed
charges (1)......................... 5.67 6.26 5.68 4.75 3.96 2.81 2.26
======= ====== ====== ====== ====== ====== ======
Pro forma ratio of earnings to fixed
charges (2)........................ 4.95 4.92
======= ======
</TABLE>
<TABLE>
<CAPTION>
September 30,
(unaudited) December 31,
------------------------ ------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
Balance Sheet Data: --------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
(dollars in millions)
Balance Sheet Data:
Total assets.............. $1,517.8 $1,378.3 $1,392.8 $1,258.4 $1,213.7 $1,187.4 $1,153.8
Long-term debt............ 508.5 347.6 373.9 297.6 347.3 356.9 403.2
Stockholder's equity...... 460.5 (3) 437.4 465.0 392.4 366.8 331.5 243.7
Working capital (deficit). (33.8) (87.7) (55.6) (116.3) (12.6) (9.4) (18.6)
</TABLE>
- ----------
(1) For purposes of these computations, earnings before fixed charges consist
of income before income taxes, extraordinary item and cumulative effect of
accounting changes plus fixed charges less capitalized interest. Fixed
charges consist of interest on indebtedness including the amortization of
debt issuance costs, capitalized interest and the portion of
non-capitalized lease expense representative of interest.
(2) After giving effect to the issuance of the Debentures and the application
of the proceeds thereof to repay approximately $50 million of the
Company's commercial paper.
(3) In October 1996, the Company declared and paid a $14.5 million dividend
to IC.
DESCRIPTION OF DEBENTURES
The Exchange Debentures will be issued, and the Original
Debentures were issued, under an indenture dated as of July 25, 1996, as
supplemented (the "Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"). The terms of the Debentures include those
stated in the Indenture or established pursuant to the terms thereof and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (the "Trust Indenture Act"), as in effect on the date of the Indenture.
The Debentures are subject to all such terms, and prospective investors are
referred to the Indenture and the Trust Indenture Act for a statement of such
terms.
The Indenture provides for issuance of debentures, Debentures
or other evidences of indebtedness by the Company ("Securities") in one or
more series in an unlimited amount from time to time. The Debentures
constitute a series of Securities under the Indenture.
The statements under this caption relating to the Debentures
and the Indenture are summaries and do not purport to be complete. Such
summaries make use of certain terms defined in the Indenture and are qualified
in their entirety by express reference to the Indenture, a copy of which is
available upon request from the Company or the Trustee. Whenever particular
Sections or defined terms of the Indenture are referred to herein, such
Sections or defined terms are incorporated herein by reference.
General
The Exchange Debentures will bear interest at a rate of 7.70%
per annum from the date such Exchange Debentures are first issued under the
Indenture, payable semiannually on March 15 and September 15 of each year,
commencing March 15, 1997, to Holders of record at the close of business on
the March 1 or September 1 immediately preceding each such interest payment
date. Holders whose Original Debentures are accepted for exchange will
receive accrued interest thereon to, but not including, the date of issuance
of the Exchange Debentures. The Debentures will be due on September 15, 2096,
and will be issued only in registered form, without coupons, in denominations
of $1,000 and integral multiples thereof.
The holders of the Debentures may be entitled to liquidated
damages in certain circumstances if the Company does not meet its registration
requirements with respect to the Debentures. See "Original Debentures
Registration Rights."
The Debentures are unsecured obligations of the Company limited
to an aggregate amount of $125 million. The Debentures will rank senior in
right of payment to all subordinated indebtedness of the Company and pari
passu with all existing and future senior unsecured indebtedness of the
Company.
Redemption
Optional Redemption. The Debentures may not be redeemed prior
to September 15, 2026. The Debentures will be subject to redemption at any
time on or after September 15, 2026, at the option of the Company, in whole or
in part, at the following redemption prices (expressed as percentages of the
principal amount), plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date, if redeemed during the 12-month period beginning
September 15 of the years indicated below:
Redemption Redemption Redemption
Year Price Year Price Year Price
- ---- ---------- ---- ---------- ---- ----------
2026.... 102.92% 2033..... 101.90% 2040................ 100.88%
2027.... 102.77% 2034..... 101.75% 2041................ 100.73%
2028.... 102.63% 2035..... 101.60% 2042................ 100.58%
2029.... 102.48% 2036..... 101.46% 2043................ 100.44%
2030.... 102.33% 2037..... 101.31% 2044................ 100.29%
2031.... 102.19% 2038..... 101.17% 2045................ 100.15%
2032.... 102.04% 2039..... 101.02% 2046 and thereafter. 100.00%
If the maturity is shortened as provided below under
"Conditional Right to Shorten Maturity", then the redemption prices set forth
above will remain unchanged to but excluding the shortened maturity date and
the amount payable by the Company at maturity with respect to outstanding
Debentures will be 100% of the principal amount thereof, together with accrued
and unpaid interest and Liquidated Damages, if any.
Selection and Notice of Redemption. In the event that less
than all of the Debentures are to be redeemed at any time, selection of
Debentures for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which
the Debentures are listed or, if the Debentures are not listed on a national
securities exchange, on a pro rata basis, provided, however, that the
Debentures will be redeemed only in the amount of $1,000 or integral multiples
thereof. Notice of redemption to the Holders of Debentures to be redeemed as
a whole or in part shall be given by mailing notice of such redemption by
first-class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of Debentures at their
last addresses as they shall appear upon the registry books. Unless the
Company defaults in payment of the redemption price, on and after the
redemption date, interest and Liquidated Damages, if any, cease to accrue on
Debentures or portions thereof called for redemption. (Section 3.2)
Sinking Fund. There will be no sinking fund for the Debentures.
Conditional Right to Shorten Maturity
The Company intends to deduct interest paid on the Debentures
for Federal income tax purposes. However, the Clinton Administration's budget
proposal for fiscal year 1997, released on March 19, 1996, contains a series of
proposed tax law changes that, among other things, would prohibit an issuer
from deducting interest payments on debt instruments with a maturity of more
than 40 years. On March 29, 1996, the Chairmen of the Senate Finance Committee
and the House Ways and Means Committee issued a statement to the effect that
this proposal, if enacted, would not be effective prior to the date of
"appropriate congressional action." There can be no assurance, however, that
this proposal or similar legislation affecting the Company's ability to deduct
interest paid on the Debentures will not be enacted in the future or that any
such legislation would not have a retroactive effective date.
Upon occurrence of a Tax Event (as defined below), the Company
will have the right to shorten the maturity of the Debentures to the extent
required, in the opinion of a nationally recognized independent tax counsel,
so that, after the shortening of the maturity, interest paid on the Debentures
will be deductible for Federal income tax purposes. The Company may exercise
its right to shorten the maturity of the Debentures upon the occurrence of a
Tax Event.
In the event that the Company elects to exercise its right to
shorten the maturity of the Debentures on the occurrence of a Tax Event, the
Company will mail a notice of shortened maturity to each Holder of record of
the Debentures by first-class mail not more than 60 days after the occurrence
of such Tax Event, stating the new maturity date of the Debentures. Such
notice shall be effective immediately upon mailing.
The Company believes that under current law the Debentures
should constitute indebtedness for Federal income tax purposes and an exercise
of its right to shorten the maturity of the Debentures should not be a taxable
event to Holders. Prospective investors should be aware, however, that the
Company's exercise of its right to shorten the maturity of the Debentures
would be a taxable event to Holders if the Debentures were treated as equity
for purposes of Federal income taxation due to the original term of the
Debentures before the maturity is shortened, assuming that the Debentures of
shortened maturity are treated as debt for such purposes.
"Tax Event" means that the Company shall have received an
opinion of a nationally recognized independent tax counsel to the effect that
on or after December 12, 1996, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in
laws, or any regulations thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of intent to
adopt such procedures or regulations (an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official position or the
interpretation of an Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case, on or after
December 12, 1996, such change in tax law creates a more than insubstantial
risk that interest paid by the Company on the Debentures is not, or will
not be, deductible, in whole or in part, by the Company for purposes of
Federal income tax.
Consolidation, Merger or Sale by the Company
The Company shall not consolidate or merge with any other
Person or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety in one
transaction or series of transactions to any Person, unless (1) either (a) the
Company shall be the continuing Person or (b) such Person shall be a
corporation organized and validly existing under the laws of the United States
of America or any State thereof or the District of Columbia and shall
expressly assume by a supplemental indenture all of the Company's obligations
under the Securities and under the Indenture; (2) immediately before and after
such transaction or each element of such series, no Default or Event of
Default shall have occurred and be continuing; and (3) giving effect to such
transaction will not cause an event of default under any mortgage, bond,
debenture, Debenture or other instrument or obligation that the Company or any
Subsidiary of the Company is a party to or bound by. Upon any such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other
disposition, the successor corporation formed by such consolidation, or into
which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
the Indenture and under the Securities. (Sections 5.1 and 5.2)
Events of Default, Notice and Certain Rights on Default
Events of Default with respect to the Securities of any series
are defined in the Indenture as being: (a) failure to pay any installment of
interest on any Securities of such series when due and the continuance of such
failure for 30 days; (b) failure to pay the principal of any Securities of
such series when due; (c) failure for 60 days after notice to the Company by
the Trustee, or by the Holders of 25% in aggregate principal amount of the
Securities of such series then outstanding, to perform or observe any other
covenant, condition or agreement in the Securities of such series or in the
Indenture; (d) the Holders of other indebtedness of the Company or any
Subsidiary shall have declared an aggregate amount in excess of $20,000,000
thereof to be due and payable prior to the date on which it would otherwise
have become due or payable and such declaration shall not have been cured,
waived, rescinded or annulled or such indebtedness shall not have been
discharged within a period of 30 days; or (e) certain events of bankruptcy,
insolvency or reorganization of the Company or a Material Subsidiary; or (f)
any other Event of Default established for the Securities of such series.
(Section 6.1)
The Indenture provides that, if an Event of Default with
respect to the Securities of any series then outstanding thereunder occurs and
is continuing, then, either the Trustee for or the Holders of not less than
25% in aggregate principal amount of the Securities of any such affected
series then outstanding (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the
principal amount as may be established for such series) of all Securities of
such affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable, except that, if an Event of Default described in
clause (e) occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be established for such series) of all the Securities then
outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee therefor, to the full extent permitted by applicable law.
(Section 6.2)
The Indenture provides that the Trustee thereunder will, within
60 days after the occurrence of a Default with respect to the Securities, give
to the Holders of the Securities notice of all Defaults known to such Trustee,
provided that, except in the case of a Default in payment on the Securities,
the Trustee may withhold such notice if and so long as a Responsible Officer
in good faith determines that withholding such notice is in the interest of
the Holders of the Securities. (Section 7.5) "Default" means any event which
is, or after notice or passage of time or both would be, an Event of Default.
(Section 1.1)
The Indenture provides that the Holders of a majority in
aggregate principal amount of the then outstanding Securities thereunder, by
notice to the Trustee therefor, may direct the time, method and place of
conducting any proceeding for any remedy available to such Trustee, or
exercising any trust or power conferred on such Trustee. (Section 6.5)
Subject to the further conditions contained in the Indenture,
the Holders of a majority in aggregate principal amount outstanding of the
Securities of any series may waive, on behalf of the Holders of all Securities
of such series, any past Default or Event of Default and its consequences
except a Default or Event of Default (i) in the payment of the principal of or
interest, if any, on any Securities of such series or (ii) in respect of a
covenant or provision of the Indenture which cannot under the terms of the
Indenture be amended or modified without the consent of the Holder of each
outstanding Securities adversely affected thereby. (Section 6.4)
The term "Material Subsidiary" means each existing Subsidiary
of the Company and each Subsidiary hereafter acquired or formed by the Company
which, in each case, for the most recent fiscal year of the Company, was the
owner of 5% or more of the consolidated assets of the Company and its
Subsidiaries taken as a whole, as set forth on the consolidated financial
statements of the Company for such fiscal year. (Section 1.1)
The term "Subsidiary" means, with respect to any Person, any
corporation or other entity of which more than 50% of the shares of Voting
Stock are, at the time directly or indirectly owned by such Person. Unless
otherwise indicated, "Subsidiary" refers only to Subsidiaries of the Company.
(Section 1.1)
The term "Voting Stock" means stock of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of a corporation or
other entity (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency). (Section 1.1)
Limitation on Liens
The Indenture provides that the Company will not, and will not
permit any Subsidiary to (a) create, issue, assume, incur or guarantee any
Debentures, bonds, debentures or other similar evidences of indebtedness for
money borrowed ("Debt") if such Debt is secured by a mortgage, pledge or lien
("Lien") upon, or (b) directly or indirectly secure any outstanding Debt by a
Lien upon, any Principal Property of the Company or any Subsidiary, now owned
or hereafter acquired, without effectively providing that the Securities shall
be secured equally and ratably with such Debt, except that the foregoing
restrictions shall not apply to (i) Liens on any Principal Property acquired
after the date of the Indenture to secure or provide for the payment or
refinancing of the purchase price or acquisition cost thereof, (ii) Liens on
any Principal Property to finance improvements thereof which do not exceed in
the aggregate $10,000,000 at any time, (iii) Liens on any Principal Property
of any corporation existing at the time such corporation becomes a Subsidiary
after the date of the Indenture, (iv) Liens in existence on Principal Property
on the date of the Indenture, (v) Liens to secure Debt of a Subsidiary to the
Company or another Subsidiary, (vi) Liens in favor of governmental bodies to
secure advance or progress payments pursuant to any contract or statute, (vii)
pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation and deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements, (viii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, (ix) any materialmen's, carriers',
mechanics', workmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations which are not yet overdue or
which are being contested in good faith by appropriate proceedings, (x) Liens
arising in connection with surety, appeal and similar bonds incidental to the
conduct of litigation, (xi) Liens arising in connection with bid, performance
or similar bonds which do not exceed in the aggregate $5,000,000, (xii)
easements, rights of way, general real estate taxes not yet due and payable,
municipal and zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title thereto and (xiii) any extension,
renewal, substitution or replacement (or successive extensions, renewals,
substitutions or replacements), in whole or in part, of any Lien referred to
in the foregoing clauses (i) through (xii), inclusive, or the Debt secured
thereby. (Section 4.5(a))
Notwithstanding the foregoing, the Company and any Subsidiary
may, without equally and ratably securing the Securities, create, issue,
assume, incur or guarantee secured Debt (which would otherwise be subject to
the foregoing Lien restrictions) in an aggregate amount which, together with
all other such secured Debt of the Company and its Subsidiaries (that is, not
including secured Debt of the Company and its Subsidiaries permitted pursuant
to the preceding paragraph) does not at any time exceed 10% of Consolidated
Net Tangible Assets of the Company. (Section 4.5(b))
The term "Principal Property" of any Person means, at any date
of determination, (a) any line or segment of track, together with signaling or
communication systems appurtenant thereto, owned by such Person as of such
date of determination over which at least 10 million gross tons of revenue
freight moved in the calendar year next preceding such date of determination;
(b) all locomotives and freight cars owned by such Person as of such date of
determination; (c) all freight yards and repair facilities owned by such
Person as of such date of determination; and (d) all real estate related to
the property described in (a), (b) or (c) owned by such Person as of such date
of determination. (Section 1.1)
The term "Consolidated Net Tangible Assets" with respect to any
Person means, as at any date of determination, the total amount of assets
(less applicable reserves and other properly deductible items) of such Person
and its Subsidiaries determined on a consolidated basis in conformity with
GAAP and set forth on the most recent consolidated balance sheet of such
Person and its Subsidiaries preceding such date of determination after
deducting therefrom (i) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after such date of determination), (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, and (iii) appropriate adjustments on
account of minority interests of other persons holding stock in the
Subsidiaries, all as determined on a consolidated basis in conformity with
GAAP and set forth on such most recent consolidated balance sheet of such
Person and its Subsidiaries. (Section 1.1)
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee to enter into one or more supplemental indentures without the
consent of the Holders of Securities in order (i) to evidence the succession
of another corporation to the Company and the assumption of the covenants of
the Company by such successor, (ii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the
Trust Indenture Act of 1939 as then in effect, (iii) to provide for a
successor Trustee with respect to the Securities of all or any series, (iv)
to establish the forms and terms of the Securities of any series, (v) to
provide for uncertificated or Unregistered Securities, or (vi) to cure any
ambiguity or correct any mistake or to make any change that does not
materially adversely affect the legal rights of any Holder of the
Securities under such Indenture. (Section 9.1)
The Indenture also contains provisions permitting the Company
and the Trustee, with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Securities of any series, to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of the Indenture or any supplemental indenture or
modifying the rights of the Holders of such Securities, except that no such
supplemental indenture, or any amendment or waiver, may, without the consent
of the Holder of each Security, (i) extend the stated maturity of the
principal of, or any sinking fund obligation or any installment of interest
on, such Holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of the
Company or such Holder, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the due date therefor, or change the manner of determining any of the
foregoing; (ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture; (iii) waive a Default in the
payment of principal of or interest on any Security of such Holder; (iv)
change any obligation of the Company to maintain an office or agency in the
places and for the purposes in the Indenture provided; or (v) modify any of
the foregoing provisions, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified
or waived without the consent of the Holder of each outstanding Security
affected thereby. (Section 9.2) After a supplemental indenture, amendment
or waiver becomes effective, the Company shall mail a notice to the Holders
of the Securities affected thereby briefly describing the supplemental
indenture, amendment or waiver. (Section 9.2)
Defeasance and Covenant Defeasance
The Company may elect either (1) to defease and be discharged
from any and all obligations with respect to (a) Securities of any series
payable within one year or (b) other Securities of any series upon certain
additional conditions described below (except as otherwise provided in the
Indenture) ("defeasance") or (2) to be released from its obligations with
respect to certain covenants applicable to the Securities of any series
("covenant defeasance"), upon the deposit with the Trustee, in trust for such
purpose, of money and/or U.S. Government Obligations which through the payment
of principal and interest in accordance with their terms will provide money in
an amount sufficient without reinvestment to pay the principal of and interest
on the Securities and the satisfaction of certain other conditions set forth
in the Indenture. As a condition to defeasance of any Securities of any
series payable later than one year from the time of defeasance, the Company
must deliver to the Trustee an Opinion of Counsel or a ruling of the Internal
Revenue Service to the effect that the Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred. (Article 8)
The Company may exercise either defeasance option with respect
to the Securities of any series notwithstanding its prior exercise of its
covenant defeasance option with respect thereto. If the Company exercises its
defeasance option, payment of the Securities of any series may not be
accelerated because of a Default or an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities of any
series may not be accelerated by reason of an Event of Default with respect to
the covenants to which such covenant defeasance is applicable. If such
acceleration were to occur by reason of another Event of Default, the
realizable value at the acceleration date of the money and U.S. Government
Obligations in the defeasance trust could be less than the principal and
interest then due on the Securities, in that the required deposit in the
defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors. The Company
will, however, remain liable for such payments at the time of the
acceleration.
Delivery and Form; Book-Entry Procedures
Book-Entry; Delivery and Form
The certificates representing the Exchange Debentures will be
issued in fully registered form and may, if agreed by the Company and the
Holder, be issued in the form of a permanent global certificate in fully
registered form (the "Global Debenture") and will be deposited with the
Trustee as custodian for The Depository Trust Company (the "Depositary") and
registered in the name of Cede & Co., as nominee of the Depositary.
So long as the Depositary, or its nominee, is the registered
owner or holder of the Global Debenture, the Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Exchange
Debentures represented by such Global Debenture for all purposes under the
Indenture and the Exchange Debentures. No beneficial owner of an interest in
the Global Debenture will be able to transfer that interest except in
accordance with the Depositary's applicable procedures, in addition to those
provided for under the Indenture.
The Depositary is a limited-purpose trust company that was
created to hold securities for its participating organizations (collectively,
the "Participants" or the "Depositary's Participants") and to facilitate the
clearance and settlement of transactions in such securities between
Participants through electronic computerized book-entry changes in accounts of
its Participants. The Depositary's Participants include securities brokers
and dealers (including the Initial Purchasers), banks and trust companies,
clearing corporations and certain other organizations. Access to the
Depositary's system is also available to other entities such as banks,
brokers, dealers and trust companies (collectively, the "Depositary's Indirect
Participants") that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly. Persons who are not Participants
may beneficially own securities held by or on behalf of the Depositary only
through the Depositary's Participants or the Depositary's Indirect
Participants.
The Company expects that pursuant to procedures established by
the Depositary (i) upon deposit of the Global Debenture, the Depositary will
credit the accounts of participants with portions of the principal amount of
the Global Debenture and (ii) ownership of the Exchange Debentures evidenced
by the Global Debenture will be shown on, and the transfer of ownership
thereof will be effected on thought, records maintained by the Depositary
(with respect to the interests of the Depositary's Participants), the
Depositary's Participants and the Depositary's Indirect Participants. The
Depositary's records reflect only the identity of the participants to whose
accounts portions of the principal amount of the Global Debenture are
credited, which may or may not be the beneficial owners of such interest in
the Global Debenture. Prospective purchasers are advised that the laws of
some states require that certain persons take physical delivery in definitive
form of securities that they own. Consequently, the ability to transfer
Exchange Debentures evidenced by the Global Debenture will be limited to such
extent.
Except as described below, owners of interest in the Global
Debenture will not have Debentures registered in their names, will not receive
physical delivery of Exchange Debentures in definitive form and will not be
considered the registered owners or holders thereof under the Indenture for
any purpose. The deposit of the Global Debenture with the Depositary and its
registration in the name of Cede & Co. effects no change in the beneficial
owners of interests in Global Debenture.
Payments of the principal of, premium (if any) and interest on,
the Global Debenture will be made to the Depositary or its nominee, as the
case may be, as the registered owner thereof. Neither the Company, the
Trustee nor any Paying Agent will have any responsibility or liability for any
aspect of the record relating to or payments made on account of beneficial
ownership interests in the Global Debenture or for maintaining, supervising or
reviewing any record relating to such beneficial ownership interest. The
Company believes, however, that it is currently the policy of the Depositary
to immediately credit the accounts of the relevant Participants with such
payments, in amounts proportionate to their respective holdings of beneficial
interest in the relevant security as shown on the records of the Depositary.
Payments by the Depositary's Participants and the Depositary's Indirect
Participants to the beneficial owners of the Debentures will be governed by
standing instructions and customary practice and will be the responsibility of
the Depositary's Participants or the Depositary's Indirect Participants.
The Depositary has advised the Company that it will take any
action permitted to be taken by a holder of Exchange Debentures (including the
presentation of Exchange Debentures for exchange as described below) only at
the direction of one or more Participants to whose account the Depositary
interest in the Global Debenture is credited and only in respect of such
portion of the aggregate principal amount of Exchange Debentures as to which
such participant or participants has or have given such direction. However,
if there is an Event of default under the Exchange Debentures or the
Indenture, the Depositary will exchange the Global Debenture for Exchange
Debentures in definitive form, which it will distribute to its Participants.
Although the Depositary customarily agrees to the foregoing
procedures in order to facilitate transfers of interests in global debentures
among participants of the Depositary, it is under no obligation to perform
such procedures, and such procedures may be discontinued at any time. Neither
the Company nor the Trustee will have any responsibility for the performance
by the Depositary or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Certificated Securities. If the Depositary is at any time
unwilling or unable to continue as a depository for the Global Debenture and a
successor depository is not appointed by the Company within 90 days, Exchange
Debentures in definitive form will be issued in exchange for the Global
Debenture.
Same-Day Settlement and Payment
The Indenture will require that payments in respect of the
Debentures represented by the Global Debenture (including principal, premium,
if any, interest and Liquidated Damages, if any) be made by wire transfer of
immediately available funds to the accounts specified by the Global
Debentureholder. The Debentures represented by the Global Debenture are
expected to trade in the Depositary's Same-Day Funds Settlement System, and
any permitted secondary market trading activity in such Debentures will,
therefore, be required by the Depositary to be settled in immediately
available funds.
Governing Law
The Indenture and the Debentures are governed by and construed
in accordance with the laws of the State of New York.
ORIGINAL DEBENTURES REGISTRATION RIGHTS
The Company and the Initial Purchasers entered into the
Registration Rights Agreement dated as of December 17, 1996 pursuant to which
the Company agreed, for the benefit of the holders of the Original Debentures,
at the Company's cost, (i) within 90 days after the Issue Date, to file this
Exchange Offer Registration Statement pursuant to which the Original
Debentures will be exchanged for the Exchange Debentures, which will have the
terms substantially similar to the Original Debentures (except that the
Exchange Debentures will not contain terms with respect to transfer
restrictions), and (ii) to cause this Exchange Offer Registration Statement to
be declared effective under the Securities Act within 180 days after the Issue
Date. Upon this Exchange Offer Registration Statement being declared
effective, the Company will offer the Exchange Debentures in exchange for
surrender of the Original Debentures. The Company agreed to keep the Exchange
Offer open for 20 business days (or longer if required by applicable law)
after the date notice of the Exchange Offer is mailed to the holders of the
Original Debentures. For each Original Debenture surrendered to the Company
pursuant to the Exchange Offer, the holder of such Original Debenture will
receive an Exchange Debenture having a principal amount equal to that of the
surrendered Original Debenture. Interest on each Exchange Debenture will
accrue from (i) the last interest payment date on which interest was paid on
the Original Debenture surrendered in exchange therefor or (ii) if no interest
has been paid on the Original Debenture, from the date of original issuance of
the Original Debentures. See "The Exchange Offer."
In the event that (i) the Company determines in reasonably good
faith that (x) any changes in the law or the applicable interpretations of the
Staff of the Commission do not permit the Company to effect the Exchange
Offer, or (y) that the Exchange Debentures would not be tradeable upon receipt
by the Holders that participate in the Exchange Offer without restriction
under state and federal securities laws (other than due solely to the status
of a Holder as an Affiliate of the Company), (ii) the Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) in certain circumstances,
certain holders of unregistered Exchange Debentures so request within 180 days
after the consummation of the Exchange Offer or (iv) in the case of any holder
of Original Debentures that participates in the Exchange Offer, such holder of
Original Debentures does not receive Exchange Debentures on the date of the
exchange that may be sold without restriction under state and federal
securities laws (other than due solely to the status of such holder of
Original Debentures as an affiliate of the Company) and so notifies the
Company within 60 days after such holder of Original Debentures first
becomes aware of such restriction and provides the Company with a
reasonable basis for its conclusion, in the case of each of clauses (i)-(iv)
of this sentence, then the Company will promptly deliver to the
holders of Original Debentures and the Trustee written notice thereof and,
at its cost, (a) as promptly as practicable, file the Shelf Registration
Statement, (b) use all reasonable efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act by the 210th
day after the Issue Date and (c) use all reasonable efforts to keep the
Shelf Registration Statement effective until three years after its
effective date, or such shorter period ending when (i) all Original
Debentures covered by the Shelf Registration Statement have been sold in
the manner set forth and as contemplated therein or (ii) a subsequent Shelf
Registration Statement covering all unregistered Original Debentures has
been declared effective under the Securities Act. The Company will, in the
event of the filing of the Shelf Registration Statement, provide to each
holder of the Original Debentures copies of the prospectus which is a part
of the Shelf Registration Statement, notify each such holder when the Shelf
Registration Statement for the Original Debentures has become effective and
take certain other actions as are required to permit unrestricted resales
of the Original Debentures. A holder of Original Debentures that sells
such Original Debentures pursuant to the Shelf Registration Statement
generally will be required to be named as a selling securityholder in the
related prospectus and to deliver a prospectus to purchasers, will be
subject to certain of the civil liability provisions under the Securities
Act in connection with such sales and will be bound by the provisions of
the Registration Rights Agreement which are applicable to such a holder
(including certain indemnification obligations). In addition, each holder
of the Original Debentures will be required to deliver information to be
used in connection with the Shelf Registration Statement and to provide
comments on the Shelf Registration Statement within the time periods set
forth in the Registration Rights Agreement in order to have its Original
Debentures included in the Shelf Registration Statement and to benefit from
the provisions regarding liquidated damages set forth in the following
paragraph.
In the event that either (i) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to the 90th calendar
day following the Issue Date, (ii) the Exchange Offer Registration Statement
is not declared effective on or prior to the 180th calendar day following the
Issue Date or (iii) the Exchange Offer is not consummated or the Shelf
Registration Statement is not declared effective on or prior to the 210th
calendar day following the Issue Date or the Shelf Registration Statement
ceases to be effective (each such event referred to in clauses (i) through
(iii), a "Registration Default"), then the Company will be required to pay to
each holder of Original Debentures accruing from the date of the first such
Registration Default (or if such Registration Default has been cured, from the
date of the next Registration Default), to the date such Registration Default
has been cured. Liquidated damages ("Liquidated Damages") at a rate per annum
equal to 0.5% of the principal amount of the Debentures held by such Holder.
All accrued Liquidated Damages will be paid by the Company on each interest
payment date to the Global Debenture Holder by wire transfer of same day funds
and to holders of Certificated Securities by wire transfer to the accounts
specified by them or by mailing checks to their registered addresses if no
such accounts have been specified. Following the cure of all Registration
Defaults, the accrual of Liquidated Damages shall cease.
The summary herein of certain provisions of the Registration
Rights Agreement does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the
Registration Rights Agreement, a copy of which has been filed as an exhibit to
the Registration Statement of which this Prospectus is a part.
PLAN OF DISTRIBUTION
Based on interpretations by the Staff set forth in no-action
letters issued to third parties, the Company believes that Exchange Debentures
issued pursuant to the Exchange Offer in exchange for the Original Debentures
may be offered for resale, resold and otherwise transferred by holders thereof
(other than any holder which is (i) an Affiliate of the Company, (ii) a
broker-dealer who acquired Original Debentures directly from the Company or
(iii) a broker-dealer who acquired Original Debentures as a result of
market making or other trading activities) without compliance with the
registration and prospectus delivery provisions of the Securities Act
provided that such Exchange Debentures are acquired in the ordinary course
of such holders' business, and such holders are not engaged in, and do not
intend to engage in, and have no arrangement or understanding with any
person to participate in, a distribution of such Exchange Debentures;
provided that broker-dealers ("Participant Broker-Dealers") receiving
Exchange Debentures in the Exchange Offer will be subject to a prospectus
delivery requirement with respect to resales of such Exchange Debentures.
To date, the Staff has taken the position that Participating Broker-Dealers
may fulfill their prospectus delivery requirements with respect to
transactions involving an exchange of securities such as the exchange
pursuant to the Exchange Offer (other than a resale of an unsold allotment
from the sale of the Original Debentures to the Initial Purchasers, or a
Participating Broker-Dealer who acquires Exchange Debentures directly from
the Company other than as a result of market-making activity or ordinary
trading activities) with the prospectus contained in the Exchange Offer
Registration Statement. Pursuant to the Registration Rights Agreement, the
Company has agreed to permit Participating Broker-Dealers and other
persons, if any, subject to similar prospectus delivery requirements to use
this Prospectus in connection with the resale of such Exchange Debentures.
The Company has agreed that, for a period of 120 days after the Exchange
Date, it will make this Prospectus, and any amendment or supplement to this
Prospectus, available to any broker-dealer that requests such documents in
the Letter of Transmittal. However, Participating Broker-Dealers who
acquired Debentures directly from the Company other than as a result of
market-making activities or ordinary trading activities may not fulfill
their Prospectus delivery requirements with this Prospectus, but must
comply with the registration and prospectus delivery requirements of the
Securities Act.
Each holder of the Original Debentures who wishes to exchange
its Original Debentures for Exchange Debentures in the Exchange Offer will be
required to make certain representation to the Company as set forth in "The
Exchange Offer--Terms and Conditions of the Letter of Transmittal." In
addition, each holder who is a broker-dealer and who receives Exchange
Debentures for its own account in exchange for Original Debentures that were
acquired by it as a result of market making activities or other trading
activities, will be required to acknowledge that it will deliver a prospectus
in connection with any resale by it of such Exchange Debentures.
The Company will not receive any proceeds from any sale of
Exchange Debentures by broker-dealers. Exchange Debentures received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing options on the
Exchange Debentures or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or at negotiated prices. Any such resale may be made directly
to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer and/or
the purchasers of any such Exchange Debentures. Any broker-dealer that
resells Exchange Debentures that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates
in a distribution of such Exchange Debentures may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Debentures and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation
under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
The Company has agreed to pay all expenses incidental to the
Exchange Offer other than commissions and concessions of any brokers or
dealers and will indemnify holders of the Debentures (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act, as set forth in the Registration Rights Agreement.
LEGAL MATTERS
Certain legal matters with respect to the validity of the
Exchange Debentures will be passed upon for the Company by Davis Polk &
Wardwell, New York, New York.
EXPERTS
The audited consolidated financial statements and financial
statement schedule incorporated by reference in this Prospectus and
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, which
is incorporated by reference herein, and is incorporated herein in reliance
upon the authority of said firm as experts in accounting and auditing in
giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
the unlawful payment of dividends or unlawful stock purchases or redemptions)
or (iv) for any transaction from which a director derived an improper personal
benefit. Section 145 of the DGCL empowers the Company to indemnify, subject
to the standards set forth therein, any person in connection with any action,
suit or proceeding brought before or threatened by reason of the fact that the
person was a director, officer, employee or agent of such company, or is or
was serving as such with respect to another entity at the request of such
company. The DGCL also provides that the Company may purchase insurance on
behalf of any such director, officer, employee or agent.
Article Tenth ("Article Tenth") of the Company's Certificate
of Incorporation (the "Certificate") limits the scope of personal liability of
the Company's directors to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. In addition, Article VI
of the By-Laws of the Company ("Article VI") defines the rights of Company
directors and officers to indemnification by the Company in the event of
personal liability or expenses incurred by them as a result of certain
litigation against them. Set forth below are descriptions of Article Tenth
and Article VI.
Elimination of Liability in Certain Circumstances
Article Tenth protects the directors against personal liability
for breaches of their duty of care. Such Article absolves directors of
liability for negligence in the performance of their duties, including gross
negligence. Directors continue to remain liable for breaches of their duty of
loyalty to the Company and its stockholders as well as for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derived improper
personal benefit. In addition, Article Tenth does not absolve directors liable
for unlawful dividends or stock repurchases or redemptions to which an express
negligence standard presently applies under the Delaware General Corporation
Law (the "Delaware Law"). Also, there may be certain liabilities, such as
those under the federal securities laws or other state or federal laws, which
a court may hold are unaffected by Article Tenth.
Article Tenth further provides that if the Delaware Law is
hereafter amended to further eliminate or limit the liability of directors,
then the liability of a director of the Company shall be eliminated or
limited, without further stockholder action, to the fullest extent permitted
by the Delaware Law as so amended.
Although Article Tenth provides directors with protection
against personal liability for monetary damages for breaches of the duty of
care, it does not eliminate the directors' duty of care. Accordingly, Article
Tenth would have no effect on the availability of equitable remedies such as
an injunction to stop a proposed action or recision of a contract based upon a
director's breach of the duty of care.
Although both directors and officers of the Company are covered
by indemnification provisions under Article VI (see below), Article Tenth
limits liability only with respect to a person acting in the capacity of a
director.
Indemnification and Insurance
Article VI provides that the Company shall indemnify and hold
harmless each person who was or is made a party to, or is involved in, any
action, suit or proceeding by reason of the fact that such person is or was a
director or officer of the Company (or was serving at the request of the
Company as a director, officer, employee or agent for another entity,
including service with respect to employee benefit plans of the Company) while
serving in such capacity, to the fullest extent permitted or allowed by
Delaware Law, as in effect (or, to the extent indemnification is broadened, as
it may be amended) against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) reasonably incurred by such person in connection
therewith. Article VI provides that the right conferred thereby shall be a
contract right and shall include the right to be paid by the Company for the
expenses incurred in defending the proceedings specified above, in advance of
their final disposition, provided that, if the Delaware Law so requires, such
payment, in the case of a director or officer in his or her capacity as such,
shall only be made upon delivery to the Company by the indemnified party of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that the person receiving such payments is not entitled to be
indemnified under such provision or otherwise. Article VI provides that the
Company may, by action of its Board of Directors, provide indemnification to
its employees and agents with the same scope and effect as the foregoing
indemnification of directors and officers.
Article VI provides that persons indemnified thereunder may
bring suit against the Company to recover unpaid amounts claimed thereunder,
and that if such suit is successful, the expense of bringing such a suit shall
be reimbursed by the Company. Article VI further provides that while it is a
defense to such a suit that the person claiming the indemnification has not
met the standard of conduct making indemnification permissible under the
Delaware Law, the burden of proving the defense shall be on the Company and
neither the failure of the Company to have made a determination that
indemnification is proper, nor an actual determination that the claimant has
not met the applicable standard of conduct shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Article VI provides that the right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein shall not be exclusive of any other right which
any person may have or acquire under any statute, provision of the Company's
Certificate or By-Laws, or otherwise. Finally, Article VI provides that the
Company may maintain insurance, at its expense, to protect itself and any of
its directors, officers, employees or agents against any expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expenses, liability or loss under the Delaware Law. The Company
expects to purchase insurance on behalf of directors, officers and other
persons which may cover certain such expenses, liability or loss.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibits Description
- -------- -----------
4.1 Indenture dated as of July 25 , 1996 (the "Indenture") between
Illinois Central Railroad Company and The Chase Manhattan Bank, as
Trustee.(1)
4.2 First Supplemental Indenture dated as of December 17, 1996 between
Illinois Central Railroad Company and The Chase Manhattan Bank, as
Trustee.**
4.3 Registration Rights Agreement dated as of December 10, 1996 among
Illinois Central Railroad Company, Lehman Brothers Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.**
5 Opinion of Davis Polk & Wardwell (legality opinion).*
12 Statement regarding Computation of Ratio of Earnings to Fixed
Changes.**
23.1 Consent of Arthur Andersen LLP relating to the financial statements
of Illinois Central Railroad Company.*
23.2 Consent of Arthur Andersen LLP relating to the financial statements
of CCP Holdings, Inc.*
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5).*
25 Statement of eligibility and qualification on Form T-1 of The Chase
Manhattan Bank.**
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Letter to Clients.*
99.4 Form of Letter to Nominees.*
- -------
* Filed herewith.
** Previously filed.
(1) Incorporated herein by reference to the Company's Registration Statement
on Form S-3, filed on May 15, 1996 (SEC File No. 333-03825).
(b) Financial Statement Schedule:
Incorporated herein by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
Item 22. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Registrant pursuant to the provisions, the foregoing provisions
described under Item 20 above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into this
Prospectus pursuant to Item 4, 10(b), 11 or 13 of Form S-4 of the Securities
Act, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of this Registration Statement through the date of responding
to the request.
The undersigned registrant hereby undertakes to supply by means
of a post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Amendment No.1 to the
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of Chicago, State of Illinois, on
December 26, 1996.
ILLINOIS CENTRAL RAILROAD COMPANY
/s/ Dale W. Phillips
---------------------------------
By: Dale W. Phillips
Title: Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No.1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gilbert H, Lamphere* Chairman of the Board, December 26, 1996
- -------------------------- Director
Gilbert H. Lamphere
/s/ E. Hunter Harrison* President and Chief December 26, 1996
- -------------------------- Executive Officer
E. Hunter Harrison (principal executive
officer), Director
/s/ Dale W. Phillips Vice President and Chief December 26, 1996
- -------------------------- Financial Officer
Dale W. Phillips (principal financial
officer), Director
/s/ John V. Mulvaney Controller (principal December 26, 1996
- -------------------------- accounting officer)
John V. Mulvaney
/s/ Ronald A. Lane Director December 26, 1996
- --------------------------
Ronald A. Lane
/s/ John D. McPherson* Director December 26, 1996
- --------------------------
John D. McPherson
/s/ Donald H. Skelton* Director December 26, 1996
- --------------------------
Donald H. Skelton
* By: /s/ Dale W. Phillips
- --------------------------
Dale W. Phillips
Attorney-in-Fact
EXHIBIT INDEX
Exhibits Description
- -------- -----------
4.1 Indenture dated as of July 25 , 1996 (the "Indenture") between
Illinois Central Railroad Company and The Chase Manhattan Bank, as
Trustee.(1)
4.2 First Supplemental Indenture dated as of December 17, 1996 between
Illinois Central Railroad Company and The Chase Manhattan Bank, as
Trustee.**
4.3 Registration Rights Agreement dated as of December 10, 1996 among
Illinois Central Railroad Company, Lehman Brothers Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.**
5 Opinion of Davis Polk & Wardwell (legality opinion).*
12 Statement regarding Computation of Ratio of Earnings to Fixed
Charges.**
23.1 Consent of Arthur Andersen LLP relating to the financial statements
of Illinois Central Railroad Company.*
23.2 Consent of Arthur Andersen LLP relating to the financial statements
of CCP Holdings, Inc.*
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5).*
25 Statement of eligibility and qualification on Form T-1 of The Chase
Manhattan Bank.**
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Letter to Clients.*
99.4 Form of Letter to Nominees.*
- ----------
* Filed herewith.
** Previously filed.
(1) Incorporated herein by reference to the Company's Registration Statement
on Form S-3, filed on May 15, 1996 (SEC File No. 333-03825).
EXHIBIT 5
[Letterhead of Davis Polk & Wardwell]
December 26, 1996
Illinois Central Railroad Company
455 North Cityfront Plaza
Chicago, Illinois 60611-5504
Ladies and Gentlemen:
We have acted as special counsel to Illinois Central Railroad
Company (the "Company") in connection with the Company's offer (the "Exchange
Offer") to exchange its 7.70% Debentures due 2096 (the "Exchange Debentures")
for any and all of its outstanding 7.70% Debentures due 2096 (the "Original
Debentures").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion.
Upon the basis of the foregoing and, assuming the due execution
and delivery of the Exchange Debentures, we are of the opinion that the
Exchange Debentures, when executed, authenticated and delivered in exchange
for the Original Debentures in accordance with the Exchange Offer, will be
valid and binding obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and similar laws affecting creditors' rights
generally and equitable principles.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement relating to the Exchange Offer. We also consent
to the reference to us under the caption "Legal Matters" in the Prospectus
contained in such Registration Statement.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our prior
written consent except that The Chase Manhattan Bank, as Exchange Agent for
the Exchange Offer, may rely upon this opinion as if it were addressed
directly to it.
Very truly yours,
/s/ Davis Polk & Wardwell
---------------------------
Davis Polk & Wardwell
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
ILLINOIS CENTRAL RAILROAD COMPANY
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 25, 1996 (except with respect to the matter discussed in Note 16, as
to which the date is February 29, 1996), included in Illinois Central Railroad
Company's Form 10-K for the year ended December 31, 1995 and to all references
to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Chicago, Illinois
December 26, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
ILLINOIS CENTRAL RAILROAD COMPANY
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 19, 1996 on the consolidated financial statements of CCP Holdings,
Inc. and its subsidiaries as of December 31, 1995 and 1994 and for each of the
years in the three year period ended December 31, 1995 incorporated by
reference in Illinois Central Railroad Company's Current Reports on Form 8-K
dated May 15, 1996 (as amended by Amendment No. 1 thereto).
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Chicago, Illinois
December 26, 1996
EXHIBIT 99.1
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON JANUARY
30, 1997 (THE "EXPIRATION DATE"), UNLESS EXTENDED. TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
ILLINOIS CENTRAL RAILROAD COMPANY
455 North Cityfront Plaza
Chicago, Illinois 60611-5504
LETTER OF TRANSMITTAL
Offer to Exchange
7.70% Debentures due 2096
for Any and All Outstanding
7.70% Debentures due 2096
of
Illinois Central Railroad Company
EXCHANGE AGENT:
The Chase Manhattan Bank
Facsimile Transmission:
(212) 946-8017
Attention: MaryAnn Fitzgerald
Confirm by telephone to:
(212) 946-3471
By Registered or Certified Mail:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
Box 2020
4 Chase Metrotech Center
Brooklyn, New York 11245
By Hand:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
1 Chase Manhattan Plaza, Floor 1-B
Nassau and Liberty Streets
New York, New York 10081
By Overnight Courier:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
450 West 33rd Street
15th Floor
New York, New York 10001
Delivery of this Letter of Transmittal to an address other than as set forth
above or transmission of Instructions via a facsimile transmission to a number
other than as set forth above does not constitute a valid delivery.
The undersigned acknowledges receipt of the Prospectus dated
December 26, 1996 (the "Prospectus") of Illinois Central Railroad Company, a
Delaware corporation (the "Company"), and this Letter of Transmittal for 7.70%
Debentures due 2096 which may be amended from time to time (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount of a new issue of 7.70% Debentures
due 2096 (the "Exchange Debentures") for each $1,000 in principal amount of its
outstanding 7.70% Debentures due 2096 that were issued and sold on December
17, 1996 in a transaction exempt from registration under the Securities Act of
1933, as amended (the "Original Debentures").
The undersigned has completed, executed and delivered this
Letter of Transmittal to indicate the action he or she desires to take with
respect to the Exchange Offer.
All holders of Original Debentures who wish to tender their
Original Debentures must, prior to the Expiration Date: (1) complete, sign,
and deliver this Letter of Transmittal, or a facsimile thereof, to the Exchange
Agent, in person or to the address set forth above; and (2) tender (and not
withdraw) his or her Original Debentures or, if a tender of Original
Debentures is to be made by book-entry transfer to the account maintained by
the Exchange Agent at The Depository Trust Company (the "Depositary"), confirm
such book-entry transfer (a "Book-Entry Confirmation"), in each case in
accordance with the procedures for tendering described in the Instructions to
this Letter of Transmittal. Holders of Original Debentures whose certificates
are not immediately available, or who are unable to deliver their certificates
or Book-Entry Confirmation and all other documents required by this Letter of
Transmittal to be delivered to the Exchange Agent on or prior to the
Expiration Date, must tender their Original Debentures according to the
guaranteed delivery procedures set forth under the caption "The Exchange Offer
- -- How to Tender" in the Prospectus. (See Instruction 1).
Upon the terms and subject to the conditions of the Exchange
Offer, the acceptance for exchange of the Original Debentures validly tendered
and not withdrawn and the issuance of the Exchange Debentures will be made on
the first business day following the Expiration Date. For the purposes of the
Exchange Offer, the Company shall be deemed to have accepted for exchange
validly tendered Original Debentures when, as and if the Company has given
written notice thereof to the Exchange Agent.
The Instructions included with this Letter of Transmittal (the
"Instructions") must be followed in their entirety. Questions and requests
for assistance or for additional copies of the Prospectus or this Letter of
Transmittal may be directed to the Exchange Agent, at the address listed
above, or to John V. Mulvaney, Controller, or Douglas A. Koman, Treasurer, at
Illinois Central Railroad Company, 455 North Cityfront Plaza Drive, Chicago,
Illinois 60611-5504, at telephone number (312) 755-7500.
PLEASE READ THE ENTIRE PROSPECTUS AND THE LETTER OF TRANSMITTAL,
INCLUDING THE INSTRUCTIONS TO THIS LETTER OF TRANSMITTAL, CAREFULLY
BEFORE CHECKING ANY BOX BELOW
Capitalized terms used in this Letter of Transmittal and not
defined herein shall have the respective meanings ascribed to them in the
Prospectus.
List in Box 1 below the Original Debentures of which you are
the holder. If the space provided in Box 1 is inadequate, list the
certificate numbers and principal amount of Original Debentures on a separate
SIGNED schedule and affix that schedule to this Letter of Transmittal.
BOX 1
TO BE COMPLETED BY ALL TENDERING HOLDERS
- ------------------------------------------------------------------------------
Principal
Name(s) and Address(es) Principal Amount Amount of
of Registered Holder(s) Certificate of Original Original Debentures
(Please fill in) Number(s)(1) Debentures Tendered(2)
- ------------------------------------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Totals:
- ------------------------------------------------------------------------------
(1) Need not be completed if Original Debentures are being tendered by
book-entry transfer.
(2) Unless otherwise indicated, the entire principal amount of Original
Debentures represented by a certificate or Book-Entry Confirmation
delivered to the Exchange Agent will be deemed to have been tendered.
See Instruction 2.
- ------------------------------------------------------------------------------
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned tenders to the Company the principal amount of Original
Debentures indicated above. Subject to, and effective upon, the acceptance
for exchange of the Original Debentures tendered with this Letter of
Transmittal, the undersigned exchanges, assigns and transfers to, or upon the
order of, the Company all right, title and interest in and to the Original
Debentures tendered.
The undersigned constitutes and appoints the Exchange Agent as
his or her agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Company) with respect to the tendered
Original Debentures, with full power of substitution, to: (a) deliver
certificates for such Original Debentures to or for the order of the Company;
(b) deliver such Original Debentures and all accompanying evidence of transfer
and authenticity to, or upon the order of, the Company, upon receipt by the
Exchange Agent, as the undersigned's agent, of the Exchange Debentures to
which the undersigned is entitled upon the acceptance by the Company of the
Original Debentures tendered under the Exchange Offer; and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of the
Original Debentures, all in accordance with the terms of the Exchange Offer.
The power of attorney granted in this paragraph shall be deemed irrevocable
and coupled with an interest.
The undersigned hereby represents and warrants that he or she
has full power and authority to tender, exchange, assign and transfer the
Original Debentures tendered hereby and that 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. The undersigned will,
upon request, execute and deliver any additional documents deemed by the
Company to be necessary or desirable to complete the assignment and transfer
of the Original Debentures tendered.
The undersigned agrees that acceptance of any tendered Original
Debentures by the Company and the issuance of Exchange Debentures in exchange
therefor shall constitute performance in full by the Company of its
obligations under the Registration Rights Agreement (as defined in the
Prospectus) and that, upon the issuance of the Exchange Debentures, the
Company will have no further obligations or liabilities thereunder (except in
certain limited circumstances). By tendering Original Debentures, the
undersigned certifies (a) that it is not an Affiliate, as defined in Rule 405
under the Securities Act, of the Company, that it is not a broker-dealer that
owns Original Debentures acquired directly from the Company or an Affiliate of
the Company, that it is acquiring the Exchange Debentures offered hereby in
the ordinary course of the undersigned's business and that such undersigned
has no arrangement with any person to participate in the distribution of such
Exchange Debentures; (b) that it is an Affiliate of the Company or of the
initial purchaser of the Original Debentures in the Initial Offering and that
it will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable to it; or (c) that it is a
participating broker-dealer and that it will deliver a prospectus in
connection with any resale of the Exchange Debentures.
The undersigned represents that if it is not a broker-dealer,
it is not engaged in, and does not intend to engage in, a distribution of the
Exchange Debentures. If the undersigned is a broker-dealer that will receive
Exchange Debentures in the Exchange Offer, it represents that the Original
Debentures to be exchanged for the Exchange Debentures were acquired as a
result of market-making, or other trading activities.
The undersigned acknowledges that, if it is a broker-dealer
that will receive Exchange Debentures for its own account, it will deliver a
prospectus in connection with any resale of such Exchange Debentures. By so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
The undersigned understands that the Company may accept the
undersigned's tender by delivering written notice of acceptance to the
Exchange Agent, at which time the undersigned's right to withdraw such tender
will terminate.
All authority conferred or agreed to be conferred by this
Letter of Transmittal shall survive the death or incapacity of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns. Tenders may be withdrawn only in
accordance with the procedures set forth in the Instructions contained in this
Letter of Transmittal.
Unless otherwise indicated under "Special Delivery
Instructions" below, the Exchange Agent will deliver Exchange Debentures (and,
if applicable, a certificate for any Original Debentures not tendered but
represented by a certificate also encompassing Original Debentures which are
tendered) to the undersigned at the address set forth in Box 1.
The undersigned acknowledges that the Exchange Offer is subject
to the more detailed terms set forth in the Prospectus and, in case of any
conflict between the terms of the Prospectus and this Letter of Transmittal,
the Prospectus shall prevail.
[ ] CHECK HERE IF TENDERED ORIGINAL DEBENTURES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:____________________________________________
Account Number:_________________________________________________________
Transaction Code Number:________________________________________________
[ ] CHECK HERE IF TENDERED ORIGINAL DEBENTURES ARE BEING DELIVERED PURSUANT TO
A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):___________________________________________
Date of Execution of Notice of Guaranteed Delivery:_______________________
Window Ticket Number (if available):______________________________________
Name of Eligible Institution which Guaranteed Delivery:___________________
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
BOX 2
PLEASE SIGN HERE
WHETHER OR NOT ORIGINAL DEBENTURES ARE BEING
PHYSICALLY TENDERED HEREBY
X ________________________ ________
X ________________________ ________
Signature(s) of owner(s) Date
or Authorized Signatory
Area Code and Telephone Number:____________________
This box must be signed by registered holder(s) of Original Debentures as
their name(s) appear(s) on certificate(s) for Original Debentures, or by
person(s) authorized to become registered holder(s) by endorsement and
documents transmitted with this Letter of Transmittal. If signature is by a
trustee, executor, administrator, guardian, officer or other person acting in
a fiduciary or representative capacity, such person must set forth his or her
full title below (See Instruction 3).
Name(s)_______________________________________________________________________
______________________________________________________________________________
(Please Print)
Capacity______________________________________________________________________
Address_______________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
Signature(s) Guaranteed __________________________________________________
by an Eligible Institution: (Authorized Signature)
__________________________________________________
(If required by (Title)
Instruction 4) __________________________________________________
(Name of Firm)
BOX 3
<TABLE>
<S> <C> <C>
TO BE COMPLETED BY ALL TENDERING HOLDERS
PAYOR'S NAME: THE CHASE MANHATTAN BANK
Part 1--PLEASE PROVIDE YOUR TIN IN SOCIAL SECURITY NUMBER(S) OR
THE BOX AT RIGHT AND CERTIFY BY EMPLOYER IDENTIFICATION
SIGNING AND DATING BELOW. NUMBER(S)
SUBSTITUTE PART 2-CERTIFICATION- UNDER PENALTIES OF PERJURY. I CERTIFY THAT:
FORM W-9 (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a
DEPARTMENT OF THE number to be issued to me), and
TREASURY INTERNAL (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I
REVENUE SERVICE have not been notified by the Internal Revenue Service ("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
PAYOR'S REQUEST
FOR TAXPAYER CERTIFICATION INSTRUCTIONS -- You must cross out Item (2) above if you have been notified by
IDENTIFICATION the IRS that you are currently subject to backup withholding because of underreporting
NUMBER ("TIN") interest or dividends on your tax return.
PART 3
SIGNATURE ____________________________
DATE ___________, 1997 AWAITING TIN [ ]
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31% OF
ANY CASH PAYMENTS MADE TO YOU ON ACCOUNT OF THE EXCHANGE DEBENTURES.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office,
or (2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all reportable cash payments made to me thereafter
will be withheld until I provide a taxpayer identification number.
Signature _____________________ Date ____________, 1997
BOX 4
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Original
Debentures in a principal amount not exchanged, or
Exchange Debentures, are to be issued in the name of
someone other than the person whose signature
appears in Box 2, or if Original Debentures delivered
by book-entry transfer which are not accepted for
exchange are to be returned by credit to an account
maintained at the Depositary other than the account
indicated above.
Issue and deliver:
(check appropriate boxes)
[ ] Original Debentures not tendered
[ ] Exchange Debentures, to:
Name_______________________________________________
(PLEASE PRINT)
Address____________________________________________
Please complete the Substitute Form W-9 at Box 3
Tax I.D. or Social Security Number:________________
BOX 5
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Original
Debentures in a principal amount not exchanged, or
Exchange Debentures, are to be sent to someone
other than the person whose signature appears in
Box 2 or to an address other than that shown in Box 1.
Deliver:
(check appropriate boxes)
[ ] Original Debentures not tendered
[ ] Exchange Debentures, to:
Name_______________________________________________
(PLEASE PRINT)
Address____________________________________________
___________________________________________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Certificates.
Certificates for Original Debentures or a Book-Entry Confirmation, as the
case may be, as well as a properly completed and duly executed copy of this
Letter of Transmittal and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of its addresses
set forth herein on or before the Expiration Date. The method of delivery
of this Letter of Transmittal, certificates for Original Debentures or a
Book-Entry Confirmation, as the case may be, and any other required
documents is at the election and risk of the tendering holder, but except
as otherwise provided below, the delivery will be deemed made when actually
received by the Exchange Agent. If delivery is by mail, the use of
registered mail with return receipt requested, properly insured, is
suggested.
If tendered Original Debentures are registered in the name of
the signer of the Letter of Transmittal and the Exchange Debentures to be
issued in exchange therefor are to be issued (and any untendered Original
Debentures are to be reissued) in the name of the registered holder, the
signature of such signer need not be guaranteed. In any other case, the
tendered Original Debentures must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed
by the registered holder and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Exchange Act. If the
Exchange Debentures and/or Original Debentures not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the debenture register for the Original Debentures, the signature on the
Letter of Transmittal must be guaranteed by an Eligible Institution.
Any beneficial owner whose Original Debentures are registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee and who wishes to tender Original Debentures should contact such
holder promptly and instruct such holder to tender Original Debentures on such
beneficial owner's behalf. If such beneficial owner wishes to tender such
Original Debentures himself, such beneficial owner must, prior to completing
and executing the Letter of Transmittal and delivering such Original
Debentures, either make appropriate arrangements to register ownership of the
Original Debentures in such beneficial owner's name or follow the procedures
described in the immediately preceding paragraph. The transfer of record
ownership may take considerable time.
Book-Entry Transfer. The Exchange Agent will make a request to
establish an account with respect to the Original Debentures at the Depositary
for purposes of the Exchange Offer within two business days after receipt of
this Prospectus, and any financial institution that is a participant in the
Depositary may make book-entry delivery of Original Debentures by causing the
Depositary to transfer such Original Debentures into the Exchange Agent's
account at the Depositary in accordance with the Depositary's procedures for
transfer. However, although delivery of Original Debentures may be effected
through book-entry transfer at the Depositary, the Letter of Transmittal, with
any required signature guarantees or an Agent's Message (as defined below) in
connection with a book-entry transfer and any other required documents, must,
in any case, be transmitted to and received by the Exchange Agent at the
address specified on the cover page of the Letter of Transmittal on or prior
to the Expiration Date or the guaranteed delivery procedures described below
must be complied with.
A debenture holder may tender Original Debentures that are held
through the Depositary by transmitting its acceptance through the Depositary's
Automatic Tender Offer Program ("ATOP"), for which the transaction will be
eligible, and the Depositary will then edit and verify the acceptance and send
an Agent's Message to the Exchange Agent for its acceptance. The term
"Agent's Message" means a message transmitted by the Depositary to, and
received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that the Depositary has received an express
acknowledgment from each participant in the Depositary tendering the Original
Debentures and that such participant has received the Letter of Transmittal
and agrees to be bound by the terms of the Letter of Transmittal and the
Company may enforce such agreement against such participant.
The method of delivery of Original Debentures and all other
documents is at the election and risk of the holder. If sent by mail, it is
recommended that registered mail, return receipt requested, be used, proper
insurance be obtained, and the mailing be made sufficiently in advance of the
Expiration Date to permit delivery to the Exchange Agent on or before the
Expiration Date.
Guaranteed Delivery Procedures. If a holder desires to accept
the Exchange Offer and time will not permit a Letter of Transmittal or
Original Debentures to reach the Exchange Agent before the Expiration Date, a
tender may be effected if the Exchange Agent has received at its office listed
on the cover of the Letter of Transmittal, on or prior to the Expiration Date,
a Notice of Guaranteed Delivery or a letter, telegram or facsimile
transmission from an Eligible Institution setting forth the name and address
of the tendering holder, the principal amount of the Original Debentures being
tendered, the names in which the Original Debentures are registered and, if
possible, the certificate numbers of the Original Debentures to be tendered,
and stating that the tender is being made thereby and guaranteeing that within
three New York Stock Exchange trading days after the date of execution of such
letter, telegram or facsimile transmission by the Eligible Institution, the
Original Debentures, in proper form for transfer, will be delivered by such
Eligible Institution together with a properly completed and duly executed
Letter of Transmittal (and any other required documents). Unless Original
Debentures being tendered by the above-described method (or a timely
Book-Entry Confirmation) are deposited with the Exchange Agent within the time
period set forth above (accompanied or preceded by a properly completed Letter
of Transmittal (or facsimile thereof) and any other required documents), or a
properly completed Agent's Message is received by the Exchange Agent within
the period set forth above, the Company may, at its option, reject the tender.
Copies of a Notice of Guaranteed Delivery which may be used by Eligible
Institutions for the purposes described in this paragraph are available from
the Exchange Agent.
A tender will be deemed to have been received as of the date
when the tendering holder's properly completed and duly signed Letter of
Transmittal accompanied by the Original Debentures (or a timely Book-Entry
Confirmation) is received by the Exchange Agent. Issuances of Exchange
Debentures in exchange for Original Debentures tendered pursuant to a Notice
of Guaranteed Delivery or letter, telegram or facsimile transmission to
similar effect (as provided above) by an Eligible Institution will be made
only against deposit of the Letter of Transmittal (and any other required
documents) and the tendered Original Debentures (or a timely Book-Entry
Confirmation).
All questions as to the validity, form, eligibility (including
time of receipt), acceptance and withdrawal of tendered Original Debentures
will be determined by the Company, whose determination will be final and
binding. The Company reserves the absolute right to reject any or all tenders
that are not in proper form or the acceptance of which, in the opinion of the
Company's counsel, would be unlawful. The Company also reserves the right to
waive any irregularities or conditions of tender as to particular Original
Debentures. All tendering holders, by execution of this Letter of
Transmittal, waive any right to receive notice of acceptance of their Original
Debentures. Neither the Company, the Exchange Agent nor any other person will
be under any duty to give notification of any defects or irregularities in
tenders or shall incur any liability for failure to give any such
notification. The Company's interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding.
2. Partial Tenders; Withdrawals. If less than the entire
principal amount of any Original Debenture evidenced by a submitted
certificate or by a Book-Entry Confirmation is tendered, the tendering
holder must so indicate the principal amount tendered in the fourth column
of Box 1 above. All of the Original Debentures represented by a
certificate or by a Book-Entry Confirmation delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated. A
certificate for Original Debentures not tendered will be sent to the
holder, unless otherwise provided in Box 5, as soon as practicable after
the Expiration Date, in the event that less than the entire principal
amount of Original Debentures represented by a submitted certificate is
tendered (or, in the case of Original Debentures tendered by book-entry
transfer, such non-exchanged Original Debentures will be credited to an
account maintained by the holder with the Book-Entry Transfer Facility).
If not yet accepted, a tender pursuant to the Exchange Offer
may be withdrawn prior to the Expiration Date. For a withdrawal to be
effective, a written or facsimile transmission notice of withdrawal must be
timely received by the Exchange Agent at its address set forth on the cover of
the Letter of Transmittal prior to the Expiration Date. Any such notice of
withdrawal must specify the person named in the Letter of Transmittal as
having tendered Original Debentures to be withdrawn, the certificate numbers
of Original Debentures to be withdrawn, the principal amount of Original
Debentures to be withdrawn, a statement that such holder is withdrawing his
election to have such Original Debentures exchanged, and the name of the
registered holder of such Original Debentures, and must be signed by the
holder in the same manner as the original signature on the Letter of
Transmittal (including any required signature guarantees) or be accompanied by
evidence satisfactory to the Company that the person withdrawing the tender
has succeeded to the beneficial ownership of the Original Debentures being
withdrawn. The Exchange Agent will return the properly withdrawn Original
Debentures promptly following receipt of notice of withdrawal. All questions
as to the validity of notices of withdrawals, including time of receipt, will
be determined by the Company, and such determination will be final and binding
on all parties.
3. Signatures on this Letter of Transmittal; Assignments. If
this Letter of Transmittal is signed by the holder(s) of Original Debentures
tendered hereby, the signature must correspond with the name(s) as written on
the face of the certificate(s) for such Original Debentures, without
alteration, enlargement or any change whatsoever.
If any of the Original Debentures tendered hereby are owned by
two or more joint owners, all owners must sign this Letter of Transmittal. If
any tendered Original Debentures are held in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal as there are names in which
certificates are held.
If this Letter of Transmittal is signed by the holder of record
and (i) the entire principal amount of the holder's Original Debentures are
tendered; and/or (ii) untendered Original Debentures, if any, are to be issued
to the holder of record, then the holder of record need not endorse any
certificates for tendered Original Debentures, nor provide a separate bond
power. In any other case, the holder of record must transmit a separate bond
power with this Letter of Transmittal.
If this Letter of Transmittal or any certificate or assignment
is 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
proper evidence satisfactory to the Company of their authority to so act must
be submitted, unless waived by the Company.
4. Guarantee of Signatures. Signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution, unless Original
Debentures are tendered: (i) by a holder who has not completed the Box
entitled "Special Issuance Instructions" or "Special Delivery Instructions" on
this Letter of Transmittal; or (ii) for the account of an Eligible
Institution. In the event that the signatures in this Letter of Transmittal
or a notice of withdrawal, as the case may be, are required to be guaranteed,
such guarantees must be by an Eligible Institution (as defined in Instruction
1, above). If Original Debentures are registered in the name of a person
other than the signer of this Letter of Transmittal, the Original Debentures
surrendered for exchange must be endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange, in satisfactory form as
determined by the Company, in their sole discretion, duly executed by the
registered holder with the signature thereon guaranteed by an Eligible
Institution.
5. Special Issuance and Delivery Instructions. Tendering
holders should indicate, in Box 4 or 5, as applicable, the name and address to
which the Exchange Debentures or certificates for Original Debentures not
exchanged are to be issued or sent, if different from the name and address of
the person signing this Letter of Transmittal. In the case of issuance in a
different name, the tax identification number of the person named must also
be indicated. Holders tendering Original Debentures by book-entry transfer
may request that Original Debentures not exchanged be credited to such account
maintained at the Depositary as such holder may designate.
6. Tax Identification Number. Under Federal income tax laws,
payments that may be made by the Company on account of the Exchange
Debentures may be subject to backup withholding at a rate of 31%. In order
to prevent backup withholding, each tendering holder should provide his or
her correct Taxpayer Identification Number by completing the
"Substitute Form W-9" included herein. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional information.
7. Transfer Taxes. The Company will pay all transfer
taxes, if any, applicable to the transfer of Original Debentures to it or
its order pursuant to the Exchange Offer. If, however, the Exchange
Debentures or certificates for Original Debentures not exchanged are to be
delivered to, or are to be issued in the name of, any person other than the
record holder, or if tendered certificates are recorded in the name of any
person other than the person signing this Letter of Transmittal, or if a
transfer tax is imposed by any reason other than the transfer of Original
Debentures to the Company or its order pursuant to the Exchange Offer, then
the amount of such transfer taxes (whether imposed on the record holder or
any other person) will be payable by the tendering holder. If satisfactory
evidence of payment of taxes or exemption from taxes is not submitted with
this Letter of Transmittal, the amount of transfer taxes will be billed
directly to the tendering holder.
Except as provided in this Instruction 7, it will not be
necessary for transfer tax stamps to be affixed to the certificates listed in
this Letter of Transmittal.
8. Waiver of Conditions. The Company reserves the absolute
right to amend or waive any of the specified conditions in the Exchange
Offer in the case of any Original Debentures tendered.
9. Mutilated, Lost, Stolen or Destroyed Certificates. Any
holder whose certificates for Original Debentures have been mutilated,
lost, stolen or destroyed should contact the Exchange Agent, at the address
indicated above, for further instructions.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus or this Letter of Transmittal, may be
directed to the Exchange Agent.
IMPORTANT: This Letter of Transmittal (together with
certificates representing tendered Original Debentures or a Book-Entry
Confirmation and all other required documents) must be received by the
Exchange Agent on or before the Expiration Date (as defined in the
Prospectus).
EXHIBIT 99.2
ILLINOIS CENTRAL RAILROAD COMPANY
EXCHANGE OFFER
TO HOLDERS OF ITS
7.70% DEBENTURES DUE 2096
NOTICE OF GUARANTEED DELIVERY
As set forth in the Prospectus dated December 26, 1996 (the
"Prospectus") of Illinois Central Railroad Company (the "Company") under "The
Exchange Offer -- How to Tender" and in the Letter of Transmittal (the "Letter
of Transmittal") relating to the offer (the "Exchange Offer") by the Company
to exchange $125,000,000 in aggregate principal amount of its 7.70% Debentures
due 2096 (the "Exchange Debentures") for $125,000,000 in aggregate principal
amount of its outstanding 7.70% Debentures due 2096 that were issued and sold
on December 17, 1996 in a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Original Debentures"), this form or
one substantially equivalent hereto must be used to accept the Exchange Offer
of the Company if: (i) certificates for the Original Debentures are not
immediately available; or (ii) time will not permit all required documents to
reach the Exchange Agent (as defined below) on or prior to the Expiration Date
(as defined in the Prospectus) of the Exchange Offer. Such form may be
delivered by hand or transmitted by facsimile transmission or letter to the
Exchange Agent.
TO: THE CHASE MANHATTAN BANK (the "Exchange Agent")
Facsimile Transmission
(212) 946-8017
Attention: MaryAnn Fitzgerald
Confirm by telephone to:
(212) 946-3471
By Registered or Certified Mail:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
Box 2020
4 Chase Metrotech Center
Brooklyn, New York 11245
By Hand:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
1 Chase Manhattan Plaza, Floor 1-B
Nassau and Liberty Streets
New York, New York 10081
By Overnight Courier:
The Chase Manhattan Bank
Attn: MaryAnn Fitzgerald
450 West 33rd Street
15th Floor
New York, New York 10001
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMITTAL OF THIS INSTRUMENT TO
A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms
and conditions set forth in the Prospectus and the Letter of Transmittal
(which together constitute the "Exchange Offer"), receipt of which are hereby
acknowledged, the principal amount of Original Debentures set forth below
pursuant to the guaranteed delivery procedures described in the Prospectus and
the Letter of Transmittal.
The undersigned understands that no withdrawal of a tender of
Original Debentures may be made on or after the Expiration Date. The
undersigned understands that for a withdrawal of a tender of Original
Debentures to be effective, a written note of withdrawal that complies with
the requirements of the Exchange Offer must be timely received by the Exchange
Agent at one of its addresses specified on the cover of this Notice of
Guaranteed Delivery prior to the Expiration Date.
The undersigned understands that the exchange of Original
Debentures for Exchange Debentures pursuant to the Exchange Offer will be made
only after timely receipt by the Exchange Agent of (i) such Original
Debentures (or Book-Entry Confirmation of the transfer of such Original
Debentures into the Exchange Agent's account at The Depository Trust Company
(the "Depositary" or "DTC")) and (ii) a Letter of Transmittal (or facsimile
thereof) with respect to such Original Debentures, properly completed and duly
executed, with any required signature guarantees, this Notice of Guaranteed
Delivery and any other documents required by the Letter of Transmittal or a
properly transmitted Agent's Message. The term "Agent's Message" means a
message transmitted by the Depositary to, and received by, the Exchange Agent
and forming part of the Book-Entry Confirmation, which states that the
Depositary has received an express acknowledgment from each participant in the
Depositary tendering the Original Debentures and that such participant has
received the Letter of Transmittal and agrees to be bound by the terms of the
Letter of Transmittal and the Company may enforce such agreement against such
participant.
All authority conferred or agreed to be conferred by this
Notice of Guaranteed Delivery shall not be affected by, and shall survive, the
death or incapacity of the undersigned, and every obligation of the undersigned
under this Notice of Guaranteed Delivery shall be binding upon the heirs,
executors, administrators, trustees in bankruptcy, personal and legal
representatives, successors and assigns of the undersigned.
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Holder(s) Date:_________________________________
or Authorized Signatory:____________
____________________________________ Address:______________________________
Name(s) of Registered ______________________________________
Holder(s):__________________________ Area Code and Telephone No.:__________
____________________________________ ______________________________________
____________________________________ If Original Debentures will be
delivered by book-entry transfer to
DTC, check the box below:
Principal Amount of Original
Debentures Tendered:________________
____________________________________ [ ]
Certificate No.(s) of Original
Debentures (if available):__________ DTC Account No.:______________________
The Notice of Guaranteed Delivery must be signed by the holder(s) exactly as
their name(s) appear on certificate(s) for Original Debentures, or if tendered
by a participant in DTC, exactly as such participant's name appears on a
security position listing as the owner of Original Debentures, or by person(s)
authorized to become holder(s) by endorsements and documents transmitted with
this Notice of Guaranteed Delivery. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer or other person acting in a
fiduciary or representative capacity, such person must provide the following
information:
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):______________________________________________________________________
______________________________________________________________________________
Capacity:_____________________________________________________________________
Address(es):__________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
GUARANTEE
(Not To Be Used For Signature Guarantee)
The undersigned, a recognized member of the Medallion Signature
Guarantee Program or any other "eligible guarantor institution," as such term
is defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of
1934, as amended (each, an "Eligible Institution"), hereby (i) guarantees that
the Exchange Agent will receive, at its address set forth above, within three
New York Stock Exchange trading days after the date hereof, either the
certificates representing the Original Debentures tendered hereby in proper
form for transfer or timely confirmation of a book-entry transfer of such
Original Debentures into the Exchange Agent's account at The Depository Trust
Company (pursuant to the procedures set forth in "The Exchange Offer - How to
Tender - Book-Entry Transfer" of the Prospectus) together with a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof), with any required signature guarantees and any other
documents required by the Letter of Transmittal or a properly transmitted
Agent's Message, (ii) represents that such tender complies with Rule 14e-4
under the Securities Exchange Act of 1934 ("Rule 14e-4"), to the extent that
Rule 14e-4 applies to such tender, and (iii) represents that each holder of
Original Debentures on whose behalf this tender is being made is deemed to own
the Original Debentures being tendered within the meaning of Rule 14e-4.
The Eligible Institution that completes this form must
communicate the guarantee to the Exchange Agent and must deliver the Letter of
Transmittal or Agent's Message, and Original Debentures to the Exchange Agent
within the time period shown herein. Failure to do so could result in a
financial loss to such Eligible Institution.
Name of Firm:_________________________________________________________________
Authorized Signature:_________________________________________________________
Title:________________________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________________
(Zip Code)
Area Code and Telephone Number:_______________________________________________
Dated:_________________________________
NOTE: DO NOT SEND CERTIFICATES WITH THIS FORM. CERTIFICATES SHOULD BE SENT
TO THE EXCHANGE AGENT WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL.
EXHIBIT 99.3
ILLINOIS CENTRAL RAILROAD COMPANY
OFFER TO EXCHANGE
$1,000 IN PRINCIPAL AMOUNT OF
7.70% DEBENTURES DUE 2096
FOR
EACH $1,000 IN PRINCIPAL AMOUNT OF
OUTSTANDING 7.70% DEBENTURES DUE 2096
THAT WERE ISSUED AND SOLD IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
To Our Clients:
Enclosed for your consideration is a Prospectus dated December
26, 1996 (as the same may be amended or supplemented from time to time, the
"Prospectus") and a form of Letter of Transmittal (the "Letter of
Transmittal") relating to the offer (the "Exchange Offer") by Illinois Central
Railroad Company (the "Company") to exchange $125,000,000 in aggregate
principal amount of its 7.70% Debentures due 2096 (the "Exchange Debentures")
for $125,000,000 in aggregate principal amount of its outstanding 7.70%
Debentures due 2096 that were issued and sold on December 17, 1996 in a
transaction exempt from registration under the Securities Act of 1993, as
amended (the "Original Debentures").
The material is being forwarded to you as the beneficial owner
of Original Debentures carried by us for your account or benefit but not
registered in your name. A tender of any Original Debentures may be made only
by us as the registered holder and pursuant to your instructions. Therefore,
the Company urges beneficial owners of Original Debentures registered in the
name of a broker, dealer, commercial bank, trust company or other nominee to
contact such registered holder promptly if they wish to tender Original
Debentures in the Exchange Offer.
Accordingly, we request instructions as to whether you wish us
to tender any or all Original Debentures, pursuant to the terms and conditions
set forth in the Prospectus and Letter of Transmittal. We urge you to read
carefully the Prospectus and Letter of Transmittal before instructing us to
tender your Original Debentures.
The Exchange Offer will expire at 5:00 p.m., New York City
Time, on January 30, 1997, unless extended (the "Expiration Date"). Original
Debentures tendered pursuant to the Exchange Offer may be withdrawn, subject
to the procedures described in the Prospectus, at any time prior to the
Expiration Date.
YOUR INSTRUCTIONS TO US SHOULD BE FORWARDED AS PROMPTLY AS
POSSIBLE IN ORDER TO PERMIT US TO TENDER ORIGINAL DEBENTURES ON YOUR BEHALF IN
ACCORDANCE WITH THE PROVISIONS OF THE EXCHANGE OFFER.
Your attention is directed to the following:
1. The Exchange Offer is for the exchange of $1,000 in
principal amount of Exchange Debentures for each $1,000 in principal amount
of Original Debentures, of which $125,000,000 aggregate principal amount of
the Original Debentures was outstanding as of December 17, 1996. The terms
of the Exchange Debentures are substantially similar to the terms of the
Original Debentures, except that the Exchange Debentures will generally be
freely transferable by holders thereof, and the holders of the Exchange
Debentures (as well as remaining holders of any Original Debentures) will
not be entitled to registration rights under the Registration Rights
Agreement.
2. THE EXCHANGE OFFER IS SUBJECT TO CERTAIN CONDITIONS.
SEE "THE EXCHANGE OFFER--CONDITIONS TO THE EXCHANGE OFFER" IN THE
PROSPECTUS.
3. The Company has agreed to pay the expenses to be
incurred in connection with the Exchange Offer, including the fees and
expenses of The Chase Manhattan Bank, the exchange agent, and printing,
accounting, and legal fees.
4. Any transfer taxes incident to the transfer of Original
Debentures from the tendering holder to the Company will be paid by the
Company, except as otherwise provided in the Prospectus and the Letter of
Transmittal.
If you wish to have us tender any or all of your Original
Debentures held by us for your account or benefit, please so instruct us by
completing, executing and returning to us the attached instruction form. The
accompanying Letter of Transmittal is furnished to you for informational
purposes only and may not be used by you to tender Original Debentures held by
us and registered in our name for your account or benefit.
INSTRUCTIONS TO REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM OWNER
OF
ILLINOIS CENTRAL RAILROAD COMPANY
7.70% DEBENTURES DUE 2096
To Registered Holder and/or Participant in the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the Prospectus
dated December 26, 1996 (as the same may be amended or supplemented from time
to time, the "Prospectus") of Illinois Central Railroad Company, a Delaware
corporation (the "Company"), and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), relating to the Company's offer (the "Exchange
Offer") to exchange its 7.70% Debentures due 2096 (the "Exchange Debentures"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for an equal principal amount of its outstanding 7.70%
Debentures due 2096 (the "Original Debentures"), upon the terms and subject to
the conditions set forth in the Prospectus and the Letter of Transmittal.
Capitalized terms used but not defined herein have the meanings ascribed to
them in the Prospectus or the Letter of Transmittal.
This will instruct you, the registered holder and/or book-entry
transfer facility participant, as to the action to be taken by you relating to
the Exchange Offer with respect to the Original Debentures held by you for the
account of the undersigned.
The aggregate face amount of the Original Debentures held by
you for the account of the undersigned is (fill in the amount):
$__________ of the Original Debentures.
With respect to the Exchange Offer, the undersigned hereby
instructs you (check appropriate box):
[ ] To TENDER the following Original Debentures held by you for
the account of the undersigned (insert principal amount of Original
Debentures to be tendered, if any):
$__________ of the Original Debentures.
[ ] NOT to TENDER any Original Debentures held by you for the
account of the undersigned.
If the undersigned instructs you to tender the Original Debentures held by you
for the account of the undersigned, it is understood that you are authorized
(a) to make, on behalf of the undersigned (and the undersigned, by its
signature below, hereby makes to you), the representations and warranties
contained in the Letter of Transmittal that are to be made with respect to the
undersigned as a beneficial owner, including but not limited to the
representations that (i) the undersigned's principal residence is in the state
of (fill in state) __________, (ii) the undersigned is acquiring the Exchange
Debentures in the ordinary course of business of the undersigned, (iii) the
undersigned is not engaged in, does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Debentures, (iv) the undersigned is not an "affiliate," as
defined in Rule 405 under the Securities Act, of the Company and (v) the
undersigned acknowledges that any person participating in the Exchange Offer
for the purpose of distributing the Exchange Debentures must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction involving the Exchange
Debentures acquired by such person and cannot rely on the position of the
Staff of the Securities and Exchange Commission set forth in no-action letters
to third parties and discussed in "The Exchange Offer--Terms of the Exchange"
of the Prospectus; (b) to agree, on behalf of the undersigned, as set forth in
the Letter of Transmittal; and (c) to take such other action as necessary
under the Prospectus or the Letter of Transmittal to effect the valid tender
of such Original Debentures.
SIGN HERE
Name of beneficial owner(s):..................................................
Signature(s):.................................................................
Name(s) (please print):.......................................................
Address:......................................................................
......................................................................
Telephone Number:.............................................................
Taxpayer identification or Social Security Number:............................
Date:.........................................................................
EXHIBIT 99.4
ILLINOIS CENTRAL RAILROAD COMPANY
OFFER TO EXCHANGE
$1,000 IN PRINCIPAL AMOUNT OF
7.70% DEBENTURES DUE 2096
FOR
EACH $1,000 IN PRINCIPAL AMOUNT OF
OUTSTANDING 7.70% DEBENTURES DUE 2096
THAT WERE ISSUED AND SOLD IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
To Securities Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Enclosed for your consideration is a Prospectus dated December
26, 1996 (as the same may be amended or supplemented from time to time, the
"Prospectus") and a form of Letter of Transmittal (the "Letter of
Transmittal") relating to the offer (the "Exchange Offer") by Illinois Central
Railroad Company (the "Company") to exchange $125,000,000 in aggregate
principal amount of its 7.70% Debentures due 2096 (the "Exchange Debentures")
for $125,000,000 in aggregate principal amount of its outstanding 7.70%
Debentures due 2096 that were issued and sold on December 17, 1996 in a
transaction exempt from registration under the Securities Act of 1933, as
amended (the "Original Debentures").
We are asking you to contact your clients for whom you hold
Original Debentures registered in your name or in the name of your nominee.
In addition, we ask you to contact your clients who, to your knowledge, hold
Original Debentures registered in their own name. The Company will not pay
any fees or commissions to any broker, dealer or other person in connection
with the solicitation of tenders pursuant to the Exchange Offer. You will,
however, be reimbursed by the Company for customary mailing and handling
expenses incurred by you in forwarding any of the enclosed materials to your
clients. The Company will pay all transfer taxes, if any, applicable to the
tender of Original Debentures to it or its order, except as otherwise provided
in the Prospectus and the Letter of Transmittal.
Enclosed are copies of the following documents:
1. The Prospectus;
2. A Letter of Transmittal for your use in connection with
the tender of Original Debentures and for the information of your
clients;
3. A form of letter that may be sent to your clients for
whose accounts you hold Original Debentures registered in your
name or the name of your nominee, with space provided for
obtaining the clients' instructions with regard to the Exchange
Offer;
4. A form of Notice of Guaranteed Delivery; and
5. Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
Your prompt action is requested. The Exchange Offer will
expire at 5:00 p.m., New York City Time, on January 30, 1997, unless extended
(the "Expiration Date"). Original Debentures tendered pursuant to the
Exchange Offer may be withdrawn, subject to the procedures described in the
Prospectus, at any time prior to the Expiration Date.
In all cases, exchanges of Original Debentures accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of certificates representing such Original Debentures
(or evidence of a book-entry delivery into the Exchange Agent's account at The
Depository Trust Company), the Letter of Transmittal (or facsimile thereof)
properly completed and duly executed, with any required signature guarantees,
or a properly completed Agent's Message (as defined in the Prospectus), and any
other documents required by the Prospectus and the Letter of Transmittal.
Additional copies of the enclosed material may be obtained from
The Chase Manhattan Bank, the Exchange Agent, by calling (212) 946-3471.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENTS ON BEHALF OF EITHER
OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY
MADE IN THE PROSPECTUS AND THE LETTER OF TRANSMITTAL.
