As filed with the Securities and Exchange Commission on , 1997
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MARK IV INDUSTRIES, INC.
(Exact name of registrant is specified in its charter)
DELAWARE
(State or other 3052 23-1733979
jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification Number)
organization) Code No.)
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501 JOHN JAMES AUDUBON PARKWAY
P.O. BOX 810
AMHERST, NEW YORK 14226-0810
(716) 689-4972
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILLIAM P. MONTAGUE
PRESIDENT
MARK IV INDUSTRIES, INC.
501 JOHN JAMES AUDUBON PARKWAY
P.O. BOX 810
AMHERST, NEW YORK 14226-0810
(716) 689-4972
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
DAVID L. FINKELMAN, ESQ. GERALD S. LIPPES, ESQ.
STROOCK & STROOCK & LAVAN LLP LIPPES, SILVERSTEIN, MATHIAS & WEXLER LLP
180 Maiden Lane 700 Guaranty Building
New York, New York 10038-4982 28 Church Street
Buffalo, New York 14202-3950
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Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
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If the only securities being registered on this form are being in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE AMOUNT TO MAXIMUM MAXIMUM REGISTRATION
REGISTERED BE AGGREGATE AGGREGATE FEE
REGISTERED PRICE PER OFFERING
UNIT (1) PRICE (1)
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71/2% Senior Subordinated $250,000,000 100% $250,000,000 $75,757.78
Notes due 2007
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f).
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
This Prospectus and the information contained herein are subject to change,
completion or amendment without notice. These securities may not be sold nor may
an offer to buy be accepted prior to the time the Prospectus is delivered in
final form. Under no circumstances shall this Prospectus constitute an offer to
sell or the solicitation of an offer to buy nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such jurisdiction.
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER __, 1997
PRELIMINARY PROSPECTUS
MARK IV INDUSTRIES, INC.
OFFER TO EXCHANGE
7 1/2% SENIOR SUBORDINATED NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING 7 1/2% SENIOR SUBORDINATED NOTES DUE 2007
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1997
UNLESS EXTENDED BY MARK IV INDUSTRIES, INC. As more fully described herein under
"The Exchange Offer--Expiration Date; Extensions; Amendment," the time the
Exchange Offer expires (including extensions, if any, by the Company) is
referred to as the "Expiration Date."
Mark IV Industries, Inc., a Delaware corporation ("Mark IV" or the
"Company"), is hereby offering (the "Exchange Offer"), upon the terms and
subject to the conditions set forth in this prospectus (the "Prospectus") and
the accompanying letter of transmittal (the "Letter of Transmittal"), to
exchange $250,000,000 aggregate principal amount of its 7 1/2% Senior
Subordinated Notes due 2007 (the "Exchange Notes"), which exchange has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a registration statement of which this Prospectus is a part (the
"Registration Statement"), for $250,000,000 aggregate principal amount of its 7
1/2% Senior Subordinated Notes due 2007 (the "Private Notes" and, collectively
with the Exchange Notes, the "Notes") which were sold on August 11, 1997 in a
transaction exempt from registration under the Securities Act and is outstanding
on the date hereof.
The form and terms of the Exchange Notes are substantially identical in all
respects (including principal amount, interest rate, maturity and ranking) to
the form and terms of the Private Notes, except that (i) the Exchange Notes will
have been registered under the Securities Act and, therefore, will not bear
legends restricting the transfer thereof and (ii) holders of the Exchange Notes
will not be entitled to certain rights of holders of the Private Notes under the
Registration Rights Agreement (as defined), which rights will terminate upon
consummation of the Exchange Offer. The Exchange Notes will evidence the same
obligations as the Private Notes and will be issued pursuant to, and entitled to
the benefits of, the Indenture (as defined) governing the Private Notes. The
Exchange Offer is being made to satisfy the obligations of the Company under the
Registration Rights Agreement relating to the Private Notes. See "The Exchange
Offer" and "Description of the Exchange Notes."
The Exchange Notes will bear interest at a rate equal to 7 1/2% per annum.
Interest on the Exchange Notes will be payable semi-annually in arrears on each
March 1 and September 1, commencing March 1, 1998. Holders of Exchange Notes
will receive interest on March 1, 1998 from the date of initial issuance of the
Exchange Notes, plus an amount equal to the accrued interest on the Private
Notes from August 11, 1997, the date of initial issuance of the Private Notes,
to the date of exchange thereof for Exchange Notes. Holders of Private Notes
that are accepted for exchange will be deemed to have waived the right to
receive any interest accrued on the Private Notes.
The Exchange Notes will be general unsecured obligations of the Company,
will be subordinated in right of payment to the prior payment in full of all
existing and future Senior Indebtedness (as defined) of the Company, will be
senior in right of payment to, or PARI PASSU in right of payment with, any
existing and future Senior Subordinated Indebtedness (as defined) of the
Company, and will be effectively subordinated to the indebtedness of the
Company's subsidiaries. At June 30, 1997, on a pro forma basis, after giving
effect to the Offering and the transactions contemplated thereby, Senior
Indebtedness of the Company and its subsidiaries was approximately $110,900,000
and Senior Subordinated Indebtedness of the Company was approximately
$755,300,000. The Indenture pursuant to which the Notes will be issued will not
restrict the Company or its subsidiaries from incurring additional indebtedness.
See "Description of the Exchange Notes--Subordination."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------------------
<PAGE>
The Private Notes were originally issued and sold in reliance upon the
exemption provided in Section 4(2) of the Securities Act and Rule 144A of the
Securities Act. Accordingly, the Private Notes may not be reoffered, resold or
otherwise pledged, hypothecated or transferred in the United States or to a U.S.
person unless registered under the Securities Act or unless an applicable
exemption from the registration requirements of the Securities Act is available.
Based on an interpretation by the staff of the Commission set forth in no-action
letters issued to third parties, the Company believes that the Exchange Notes
issued pursuant to the Exchange Offer in exchange for Private Notes may be
offered for resale, resold and otherwise transferred by a holder thereof (other
than (i) an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (ii) a broker-dealer who acquired Private Notes directly from
the Company to resell pursuant to Rule 144A or any other available exemption
under the Securities Act or (iii) a broker-dealer who acquired Private Notes as
a result of market making or other trading activities), without compliance with
the registration and prospectus delivery requirements of the Securities Act;
PROVIDED that the holder is acquiring Exchange Notes in the ordinary course of
its business and is not participating, and has no arrangement or understanding
with any person to participate, in the distribution of the Exchange Notes.
Holders of Private Notes wishing to accept the Exchange Offer must represent to
the Company, as required by the Registration Rights Agreement, that such
conditions have been met. The Company believes that none of the registered
holders of the Private Notes is an affiliate (as such term is defined in Rule
405 under the Securities Act) of the Company.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Private Notes must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. 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. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Private Notes, where such Private Notes
were acquired by such broker-dealer as a result of market-making or other
trading activities. The Company has agreed to make this Prospectus (as it may be
amended or supplemented) available to any broker-dealer, upon request, for use
in connection with any such resale, for a period of one year after the
Registration Statement is declared effective by the Commission or until such
earlier date on which all the Exchange Notes are freely tradeable. However, any
broker-dealer who acquired the Private Notes directly from the Company may not
fulfill its prospectus delivery requirements with this Prospectus, but must
comply with the registration and prospectus delivery requirements of the
Securities Act. See "The Exchange Offer--Resale of the Exchange Notes" and "Plan
of Distribution."
The Company will not receive any proceeds from, and will bear the expenses
of, the Exchange Offer. No underwriter is being used in connection with the
Exchange Offer. See "The Exchange Offer--Resale of the Exchange Notes."
Prior to the Exchange Offer, there has been no public market for the Notes.
The Company has not determined whether the Exchange Notes will be listed on any
securities exchange, but the Private Notes are eligible for trading in the
Private Offerings, Resales and Trading through Automated Linkages ("PORTAL")
Market of the National Association of Securities Dealers, Inc. There can be no
assurance that an active market for the Exchange Notes will develop. To the
extent that a market for the Exchange Notes does develop the market value of the
Exchange Notes will depend on market conditions (such as yields on alternative
investments), general economic conditions, the Company's financial condition and
certain other factors. Such conditions might cause the Exchange Notes, to the
extent they are traded, to trade at a significant discount from face value. In
addition, any Private Notes not tendered and accepted in the Exchange Offer will
remain outstanding. To the extent that the Private Notes are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered, and
tendered but unaccepted, Private Notes could be adversely affected. Following
consummation of the Exchange Offer, the holders of Private Notes will continue
to be subject to the existing restrictions on transfer thereof. The Company,
except under certain limited circumstances, will not have any further obligation
to such holders to provide for the registration of the Private Notes under the
Securities Act. See "The Exchange Offer--Termination of Certain Rights."
AS USED HEREIN, THE "INDENTURE" MEANS THE INDENTURE, DATED AS OF AUGUST 11,
1997, AS AMENDED AND SUPPLEMENTED FROM TIME TO TIME, BETWEEN THE COMPANY AND
MARINE MIDLAND BANK, AS TRUSTEE (THE "DEBENTURE TRUSTEE"), RELATING TO THE
PRIVATE NOTES AND THE EXCHANGE NOTES.
The Company will accept for exchange any and all validly tendered Private
Notes not withdrawn prior to 5:00 p.m., New York City time, on the Expiration
Date. Tenders of Private Notes may be withdrawn at any time prior to 5:00 p.m.
on the Expiration Date. The Exchange Offer is not conditioned on any minimum
aggregate principal amount of Private Notes being tendered or accepted for
exchange; PROVIDED, HOWEVER, Private Notes may be tendered only in integral
multiples of $1,000. The Exchange Offer is subject to certain customary
conditions. See "The Exchange Offer--Conditions."
The date of this Prospectus is , 1997
<PAGE>
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF PRIVATE NOTES IN ANY JURISDICTION IN
WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE EXCHANGE OFFER TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING LETTER OF TRANSMITTAL, AND, IF GIVEN OR MADE, SUCH OTHER
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THE INFORMATION CONTAINED HEREIN IS AS OF THE DATE HEREOF AND
SUBJECT TO CHANGE, COMPLETION OR AMENDMENT WITHOUT NOTICE. NEITHER THE DELIVERY
OF THIS PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL AT ANY TIME NOR ANY
EXCHANGE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
IN MAKING AN INVESTMENT DECISION REGARDING THE SECURITIES OFFERED HEREBY,
PROSPECTIVE INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE
TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE OFFERING IS
BEING MADE ON THE BASIS OF THIS PROSPECTUS. ANY DECISION TO EXCHANGE SECURITIES
IN THE EXCHANGE OFFER MUST BE BASED ON THE INFORMATION CONTAINED HEREIN.
The Exchange Notes will be available initially to qualified institutional
buyers only in book-entry form. Except as described herein, the Exchange Notes
will be represented by a Global Note (as defined) in fully registered form,
deposited with a custodian for and registered in the name of a nominee of The
Depository Trust Company ("DTC"). Beneficial interests in the Global Note
representing such Exchange Notes will be shown on, and transfers thereof will be
effected through, records maintained by DTC and its participants. Beneficial
interests in such Exchange Notes will trade in DTC's Same-Day Funds Settlement
System and secondary market trading activity in such interests will therefore
settle in immediately available funds.
TABLE OF CONTENTS
PAGE
Available Information.................................................2
Incorporation Of Certain Documents By Reference.......................2
Forward Looking Statements............................................3
Prospectus Summary....................................................4
Use Of Proceeds......................................................10
Capitalization.......................................................10
Selected Financial Data..............................................11
Business ............................................................13
The Exchange Offer...................................................15
Description Of The Exchange Notes....................................23
Description Of Private Notes.........................................30
Certain Federal Income Tax Considerations............................31
Plan Of Distribution.................................................33
Legal Matters........................................................34
Experts ............................................................34
<PAGE>
AVAILABLE INFORMATION
Mark IV Industries, Inc. ("Mark IV" or the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements and other information filed by the
Company with the Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices located at Seven
World Trade Center, New York, New York 10048, and Suite 1400, Northwestern
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Such materials can also be inspected at the New York Stock Exchange, 20 Broad
Street, New York, New York 10005. The Commission maintains an Internet web site
that contains reports, proxy and information statements and other information
regarding Issuers who file electronically with the Commission. The address of
that site is http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-4 (together with all amendments, exhibits, annexes and schedules thereto, the
"Registration Statement") pursuant to the Securities Act, and the rules and
regulations promulgated thereunder, with respect to the securities 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. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, including the exhibits filed as a part thereof and
otherwise incorporated therein. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are
necessarily summaries of the material elements of such contract, agreement or
document, and with respect to each contract, agreement or other document filed
as an exhibit to the Registration Statement, reference is made to such exhibit
for a more complete description of the matter involved. Each such statement
shall be deemed qualified in its entirety by such reference. Copies of the
Registration Statement and the exhibits may be inspected, without charge, at the
offices of the Commission, or obtained at prescribed rates from the Public
Reference Section of the Commission at the address set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
pursuant to the Exchange Act are incorporated by reference in this Prospectus
and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1997 as amended by Amendment No. 1 on Form
10K/A dated June 27, 1997;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
May 31, 1997; and
(c) the Company's Current Report on Form 8-K dated August 11, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the Offering shall be deemed to be incorporated by reference
herein 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 shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which is also incorporated or deemed to be
incorporated by reference herein modifies, supersedes or replaces such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents which have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the documents so incorporated. Any
such request should be directed to Investor Relations, Mark IV Industries, Inc.,
501 John James Audubon Parkway, P.O. Box 810, Amherst, New York 14226-0810.
Telephone requests may be directed to (716) 689-4972.
FORWARD LOOKING STATEMENTS
This Prospectus, including certain information incorporated by reference
herein, may include "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Any statements with regard to
the Company's expectations as to industry conditions and its financial results,
demand for or pricing of its products and other aspects of its business may
constitute forward-looking statements. Although the Company makes such
statements based on assumptions which it believes to be reasonable, there can be
no assurance that actual results will not differ materially from the Company's
expectations. Accordingly, the Company hereby identifies the following important
factors, among others, which could cause its results to differ from any results
which might be projected, forecasted or estimated in any such forward-looking
statements: (i) general economic and competitive conditions in the markets and
countries in which the Company operates, and the risks inherent in international
operations and joint ventures; (ii) the Company's ability to continue to control
and reduce its costs of production; (iii) the level of consumer demand for new
vehicles equipped with the Company's products; (iv) the level of consumer demand
for the Company's aftermarket products, which varies based on such factors as
the severity of winter weather, the age of automobiles in the Company's markets
and the impact of improvements or changes in original equipment products; (v)
the effect of changes in the distribution channels for the Company's aftermarket
and industrial products; and (vi) the strength of the U.S. dollar against
currencies of other countries where the Company operates, as well as
cross-currencies between the Company's operations outside of the United States
and other countries with whom they transact business. Should one or more of
these risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those described in the
forward-looking statements. The Company does not intend to update
forward-looking statements.
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS, INCLUDING THE NOTES THERETO, APPEARING
ELSEWHERE OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. UNLESS THE CONTEXT
OTHERWISE REQUIRES, ALL REFERENCES HEREIN TO THE "COMPANY" OR "MARK IV" INCLUDE
MARK IV INDUSTRIES, INC. AND ITS SUBSIDIARIES.
THE COMPANY
Mark IV is a diversified manufacturer of a broad range of proprietary and
other power and fluid transfer products and systems which serve primarily
automotive and industrial markets. Many of Mark IV's product groups have a
significant, and in certain instances the leading, share of their respective
markets. Products manufactured by Mark IV principally serve specialized needs in
markets in which relatively few manufacturers compete. These products are sold
primarily directly, but also through independent distributors, to other
manufacturers, commercial users and resellers in the United States and Europe
and, to a lesser extent, in Canada, Latin America and the Far East. Mark IV
operates 63 manufacturing facilities and 45 distribution and sales locations and
employs approximately 15,800 people in 19 countries.
Mark IV's business strategy is focused on building its worldwide Automotive
and Industrial business segments through internal growth and selective strategic
acquisitions, and the continuation of cost control and quality improvement
programs. The Company's operating strategy emphasizes establishing cooperative
programs with customers to engineer, design and develop higher value-added
systems in addition to individual products, the introduction of new, more cost
effective and durable products, and management for continuous improvement.
In furtherance of these strategies, over its last five fiscal years, Mark
IV has: (i) enhanced its ability to provide a broader range of products to its
existing customers through its acquisition of Purolator Products Company, a
leading manufacturer of automotive and industrial filtration products and
systems in late-fiscal 1995; (ii) established a joint venture in Brazil and is
in the process of establishing manufacturing facilities in Argentina and Brazil;
(iii) established distribution centers to serve markets in Latin America and the
Pacific Rim, and acquired manufacturing and distribution facilities in Mexico;
(iv) increased its industrial hose and couplings production capacity and
strengthened its position in the hose and couplings products market through its
acquisition of Imperial Eastman at the beginning of fiscal 1997; (v) emphasized
continuous product development, with a significant amount of its current sales
arising from the introduction of new products or products which have been
redesigned; and (vi) initiated during fiscal 1997 a restructuring of the
Company's manufacturing and distribution facilities to make them more focused
and cost effective.
The Company's principal executive office is located at 501 John James
Audubon Parkway, P.O. Box 810, Amherst, New York 14226-0810 and its telephone
number is (716) 689-4972.
<PAGE>
THE EXCHANGE OFFER
The Exchange Offer...................... The Company is hereby offering to
exchange $1,000 of Exchange Notes for
each $1,000 of Private Notes that are
properly tendered and accepted. The
Company will issue Exchange Notes on or
promptly after the Expiration Date. As
of the date hereof, $250,000,000
aggregate principal amount of Private
Notes are outstanding. See "The
Exchange Offer--Purpose of the Exchange
Offer."
Based on an interpretation by the staff
of the Commission set forth in
no-action letters issued to third
parties, the Company believes that the
Exchange Notes issued pursuant to the
Exchange Offer in exchange for Private
Notes may be offered for resale, resold
and otherwise transferred by a holder
thereof (other than (i) an "affiliate"
of the Company within the meaning of
Rule 405 under the Securities Act, (ii)
a broker-dealer who acquired Private
Notes directly from the Company to
resell pursuant to Rule 144A or any
other available exemption under the
Securities Act or (iii) a broker-dealer
who acquired Private Notes as a result
of market making or other trading
activities), without compliance with
the registration and prospectus
delivery requirements of the Securities
Act; PROVIDED that the holder is
acquiring Exchange Notes in the
ordinary course of its business and is
not participating, and has no
arrangement or understanding with any
person to participate, in the
distribution of the Exchange Notes.
Holders of Private Notes wishing to
accept the Exchange Offer must
represent to the Company, as required
by the Registration Rights Agreement,
that such conditions have been met. The
Company believes that none of the
registered holders of the Private Notes
is an affiliate (as such term is
defined in Rule 405 under the
Securities Act) of the Company. Any
broker-dealer that resells Exchange
Notes that were received by it for its
own account pursuant to the Exchange
Offer and any broker or dealer that
participates in the distribution of
such Exchange Notes may be deemed to be
an "underwriter" within the meaning of
the Securities Act and any profit on
any such resale of Exchange Notes and
any commissions or concessions received
by any such persons may be deemed to be
underwriting compensation under the
Securities Act.
Each broker-dealer that receives
Exchange Notes for its own account in
exchange for Private Notes must
acknowledge that it will deliver a
prospectus in connection with any
resale of such Exchange Notes. 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. This Prospectus, as it
may be amended or supplemented from
time to time, may be used by a
broker-dealer in connection with
resales of Exchange Notes received in
exchange for Private Notes, where such
Private Notes were acquired by such
broker-dealer as a result of
market-making or other trading
activities. The Company has agreed to
make this Prospectus (as it may be
amended or supplemented) available to
any broker-dealer, upon request, for
use in connection with any such resale,
for a period of one year after the
Registration Statement is declared
effective by the Commission or until
such earlier date on which all the
Exchange Notes are freely tradeable.
However, any broker-dealer who acquired
the Private Notes directly from the
Company other than as a result of
market-making activities or ordinary
trading activities may not fulfill its
prospectus delivery requirements with
this Prospectus, but must comply with
the registration and prospectus
delivery requirements of the Securities
Act. See "The Exchange Offer--Resale of
the Exchange Notes."
Registration Rights Agreement.......... The Private Notes were sold by the
Company on August 11, 1997 to Bear,
Stearns & Co. Inc. (the "Initial
Purchaser") pursuant to a Purchase
Agreement, dated August 6, 1997, by and
between the Company and the Initial
Purchaser (the "Purchase Agreement"),
at a purchase price of $248,677,500.
Pursuant to the Purchase Agreement, the
Company and the Initial Purchaser
entered into a Registration Rights
Agreement, dated as of August 11, 1997
(the "Registration Rights Agreement"),
which grants the holders of the Private
Notes certain exchange and registration
rights. The Exchange Offer is intended
to satisfy such rights, which will
terminate upon the consummation of the
Exchange Offer except under certain
limited circumstances. See "The
Exchange Offer--Termination of Certain
Rights."
Holders of Private Notes who do not
tender their Private Notes in the
Exchange Offer will continue to hold
such Private Notes and will be entitled
to all the rights and limitations
applicable thereto under the Indenture.
All untendered, and tendered but not
unaccepted, Private Notes will continue
to be subject to the restrictions on
transfer provided for in the Private
Notes and the Indenture. To the extent
that Private Notes are tendered and
accepted in the Exchange Offer, the
trading market, if any, for the Private
Notes could be adversely affected.
Expiration Date......................... The Exchange Offer will expire at 5:00
p.m., New York City time, on , 1997,
unless the Exchange Offer is extended
by the Company, in its sole discretion,
in which case the term "Expiration
Date" shall mean the latest date and
time to which the Exchange Offer is
extended. See "The Exchange
Offer--Expiration Date; Extensions;
Amendments."
Accrued Interest on the Exchange
Notes and the Private Notes........... The Exchange Notes will bear interest
from and including the date of issuance
of the Private Notes (August 11, 1997).
Holders whose Private Notes are
accepted for exchange will be deemed to
have waived the right to receive any
interest accrued on the Private Notes.
See "The Exchange Offer--Interest on
the Exchange Notes."
Conditions to the Exchange Offer....... The Exchange Offer is subject to
certain customary conditions that may
be waived by the Company. The Exchange
Offer is not conditioned upon any
minimum aggregate amount of Private
Notes being tendered for exchange. See
"The Exchange Offer-- Conditions."
Procedures for Tendering Private
Notes................................... Each Holder of Private Notes wishing to
accept the Exchange Offer must
complete, sign and date the Letter of
Transmittal, or a facsimile thereof, in
accordance with the instructions
contained herein and therein, and mail
or otherwise deliver such Letter of
Transmittal, or such facsimile,
together with such Private Notes and
any other required documentation to
Marine Midland Bank, as exchange agent
(the "Exchange Agent"), at its address
set forth herein. By executing the
Letter of Transmittal, the holder will
represent to and agree with the Company
that, among other things, (i) the
Exchange Notes to be acquired by such
holder of Private Notes in connection
with the Exchange Offer are being
acquired by such holder in the ordinary
course of its business, (ii) such
holder is not currently participating
and has no arrangement or understanding
with any person to participate in a
distribution of the Exchange Notes,
(iii) if such holder is a broker-dealer
registered under the Exchange Act or is
participating in the Exchange Offer for
the purposes of distributing the
Exchange Notes, such holder will comply
with the registration and prospectus
delivery requirements of the Securities
Act in connection with a secondary
resale transaction of the Exchange
Notes acquired by such person and
cannot rely on the position of the
staff of the Commission set forth in
no-action letters (see "The Exchange
Offer-- Resale of Exchange Notes"),
(iv) such holder understands that a
secondary resale transaction described
in clause (iii) above and any resales
of Exchange Notes obtained by such
holder in exchange for Private Notes
acquired by such holder directly from
the Company should be covered by an
effective registration statement
containing the selling security holder
information required by Item 507 of
Regulation S-K of the Commission and
(v) such holder is not an "affiliate,"
as defined in Rule 405 under the
Securities Act, of the Company. If the
holder is a broker-dealer that will
receive Exchange Notes for its own
account in exchange for Private Notes
that were acquired as a result of
market-making activities or other
trading activities, such holder will be
required to acknowledge in the Letter
of Transmittal that such holder will
deliver a prospectus in connection with
any resale of such Exchange Notes;
however, by so acknowledging and by
delivering a prospectus, such holder
will not be deemed to admit that it is
an "underwriter" within the meaning of
the Securities Act. See "The Exchange
Offer--Procedures for Tendering."
Special Procedures for
Beneficial Owners..................... Any beneficial owner whose Private
Notes are registered in the name of a
broker, commercial bank, trust company
or other nominee and who wishes to
tender such Private Notes in the
Exchange Offer should contact such
registered holder promptly and instruct
such registered holder to tender on
such beneficial owner's behalf. If such
beneficial owner wishes to tender on
such owner's own behalf, such owner
must, prior to completing and executing
the Letter of Transmittal and
delivering such owner's Private Notes,
either make appropriate arrangements to
register ownership of the Private Notes
in such owner's name or obtain a
properly completed bond power from the
registered holder. The transfer of
registered ownership may take
considerable time and may not be able
to be completed prior to the Expiration
Date. See "The Exchange
Offer--Procedures for Tendering."
Guaranteed Delivery
Procedures............................ Holders of Private Notes who wish to
tender their Private Notes and whose
Private Notes are not immediately
available or who cannot deliver their
Private Notes, the Letter of
Transmittal or any other documentation
required by the Letter of Transmittal
to the Exchange Agent prior to the
Expiration Date must tender their
Private Notes according to the
guaranteed delivery procedures set
forth under "The Exchange
Offer--Guaranteed Delivery Procedures."
Acceptance of the Private Notes
and Delivery of the Exchange Notes.... Subject to the satisfaction or waiver
of the conditions to the Exchange
Offer, the Company will accept for
exchange any and all Private Notes that
are properly tendered in the Exchange
Offer prior to the Expiration Date. The
Exchange Notes issued pursuant to the
Exchange Offer will be delivered on the
earliest practicable date following the
Expiration Date. See "The Exchange
Offer--Terms of the Exchange Offer."
Withdrawal Rights....................... Tenders of Private Notes may be
withdrawn at any time prior to the
Expiration Date. See "The Exchange
Offer--Withdrawal of Tenders."
Certain Federal Income Tax
Considerations........................ For a discussion of certain material
federal income tax considerations
relating to the exchange of the
Exchange Notes for the Private Notes,
see "Certain Federal Income Tax
Considerations."
Exchange Agent......................... Marine Midland Bank is serving as the
Exchange Agent in connection with the
Exchange Offer.
Use of Proceeds......................... The Company will not receive any cash
proceeds from the issuance of the
Exchange Notes offered hereby. See "Use
of Proceeds."
TERMS OF THE EXCHANGE NOTES
The Exchange Offer applies to $250,000,000 aggregate principal amount
of the Private Notes. The form and terms of the Exchange Notes are substantially
identical in all respects (including principal amount, interest rate, maturity
and ranking) to the form and terms of the Private Notes, except that (i) the
Exchange Notes will have been registered under the Securities Act and,
therefore, will not bear legends restricting the transfer thereof; and (ii)
holders of the Exchange Notes will not be entitled to certain rights of holders
of the Private Notes under the Registration Rights Agreement, which rights will
terminate upon consummation of the Exchange Offer. The Exchange Notes will
evidence the same obligations as the Private Notes and will be issued pursuant
to, and entitled to the benefits of, the Indenture governing the Private Notes.
The Exchange Offer is being made to satisfy the obligations of the Company under
the Registration Rights Agreement relating to the Private Notes. For further
information and for definitions of certain capitalized terms used below, see
"The Exchange Offer" and "Description of the Exchange Notes."
Issuer..................................Mark IV Industries, Inc.
Securities Offered......................Exchange Notes
Maturity Date:..........................September 1, 2007.
Interest Rate...........................The Exchange Notes will bear interest
at a rate of 7 1/2% per annum.
Interest Payment Dates.................. Interest will accrue on the Exchange
Notes from the date of the initial
issuance of the Private Notes (August
11, 1997) and will be payable
semi-annually on each March 1 and
September 1 of each year, commencing
March 1, 1998.
Record Dates............................February 15 and August 15.
Subordination...........................The Exchange Notes will be
unsecured obligations of the Company,
will be subordinated in right of payment
to the prior payment in full of all
Senior Indebtedness of the Company, will
be senior in right of payment to, or
rank PARI PASSU in right of payment
with, any existing and future Senior
Subordinated Indebtedness of the
Company, and will be effectively
subordinated to the indebtedness of the
Company's subsidiaries. At June 30,
1997, on a pro forma basis, after giving
effect to the Offering and the
transactions contemplated thereby,
Senior Indebtedness of the Company and
its subsidiaries was approximately
$110,900,000 and Senior Subordinated
Indebtedness of the Company was
approximately $755,300,000. The
Indenture pursuant to which the Notes
will be issued does not restrict the
Company and its subsidiaries from
incurring additional indebtedness. See
"Description of the Exchange
Notes--Subordination."
Absence of Market for the
Exchange Notes........................ There is currently no market for the
Exchange Notes. Although the Initial
Purchaser has informed the Company that
it currently intends to make a market
in the Exchange Notes, the Initial
Purchaser is not obligated to do so,
and any such market making may be
discontinued at any time without
notice. Accordingly, there can be no
assurance as to the development or
liquidity of any market for the
Exchange Notes. See "Plan of
Distribution."
<PAGE>
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Exchange Notes offered hereby. The Private Notes surrendered in exchange for the
Exchange Notes will be retired and canceled.
The net proceeds to the Company from the offering of the Private Notes
(after giving effect to the Initial Purchaser's discount and payment of the
expenses of the Offering) were approximately $245,977,500. A portion of the
proceeds from the sale of Private Notes was used to repay approximately
$140,000,000 of Senior Indebtedness outstanding at June 30, 1997 under the
Company's Credit Agreement and domestic notes payable. The balance of the
proceeds was added to working capital and will be used for general corporate
purposes.
The Company's Credit Agreement, which expires on March 8, 2001, provides
for a revolving credit facility with borrowing availability of $400,000,000
under a domestic facility and $100,000,000 under a multi-currency facility. At
June 30, 1997, the weighted average interest rate on such borrowings was 6.5%
per annum. Amounts repaid under the Credit Agreement from the net proceeds of
the Offering may be reborrowed by the Company thereunder.
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company at June 30, 1997 and as adjusted to give effect to the sale of the
Private Notes and the application of a portion of the net proceeds to repay
amounts outstanding under the Company's Credit Agreement and domestic notes
payable. See "Use of Proceeds."
<TABLE>
<CAPTION>
June 30, 1997
As
Actual Adjusted
(Dollars in Thousands)
Short-term debt:
<S> <C> <C>
Notes payable(1) . $116,200 $86,200
Current maturities of long-term debt....................................... 4,100 4,100
----------- ------------
Total short-term debt.................................................. $120,300 $90,300
=========== ============
Long-term debt, excluding current maturities:
Senior debt:
Credit Agreement....................................................... $110,000 $--
Other.................................................................. 20,600 20,600
----------- ------------
Total senior debt...................................................... 130,600 20,600
Subordinated debt:
83/4% Senior Subordinated Notes due April 1, 2003...................... 258,000 258,000
73/4% Senior Subordinated Notes due April 1, 2006...................... 248,600 248,600
71/2% Senior Subordinated Notes due September 1, 2007.................. -- 248,700
----------- ------------
Total subordinated debt................................................ 506,600 755,300
----------- ------------
Total long-term debt................................................... 637,200 775,900
Stockholders' equity(2)......................................................... 725,300 725,300
----------- ------------
Total capitalization................................................... $1,362,500 $1,501,200
=========== ============
- -----------------
(1) Includes approximately $30,000,000 of domestic and $86,200,000 of foreign
notes payable.
(2) Stockholders' equity is calculated as of May 31, 1997.
</TABLE>
<PAGE>
SELECTED FINANCIAL DATA
The following tables set forth selected consolidated financial information
of the Company for each of the five fiscal years in the period ended February
28, 1997 and for the three-month periods ended May 31, 1996 and 1997.
Information for the three-month periods ended May 31, 1996 and 1997 is unaudited
but, in the opinion of management, includes all adjustments, consisting only of
normal recurring accruals, necessary for a fair presentation. The results of
operations for the three-month period ended May 31, 1997 are not necessarily
indicative of the results to be expected for the full year. These tables should
be read in conjunction with the Company's Consolidated Financial Statements
incorporated by reference herein.
<TABLE>
<CAPTION>
Three-Months
FISCAL YEARS ENDED THE LAST DAY Ended
OF FEBRUARY, May 31,
------------------------------------------------------------ ------------------------
1993(1) 1994(1) 1995(1) 1996(1) 1997 1996(1) 1997
(DOLLARS IN THOUSANDS)
Income Statement Data:
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales from continuing operations.... $806,700 $958,900 $1,306,400 $1,779,200 $2,076,000 $540,900 $560,100
======== ========= ========= ========= ========== ========= =========
Operating income(2)..................... $86,700 $104,100 $135,500 $188,300 $223,200 $59,700 $63,600
Restructuring charge................... -- -- -- -- 112,500 -- --
Interest Expense....................... 44,400 43,100 46,300 52,600 59,000 14,900 14,300
-------- -------- --------- --------- ---------- -------- ---------
Income from continuing operations
before provision for taxes............. $42,300 $61,000 $89,200 $135,700 $51,700 $44,800 $49,300
======== ========= ========= ========= ======== ========= =========
Income from continuing operations (3):
Before restructuring charge.......... $26,700 $38,200 $55,000 $82,800 $100,200 $27,300 $30,100
Restructuring charge:.................. -- -- -- -- (67,500) -- --
-------- -------- -------- -------- -------- -------- --------
Total continuing....................... 26,700 38,200 55,000 82,800 32,700 27,300 30,100
-------- -------- -------- ------- --------- -------- --------
Income from discontinued operations(3):
From operations........................ 16,000 12,900 12,900 9,600 5,900 1,200 --
Gain on divestiture.................... -- -- -- -- 17,500 -- --
-------- -------- -------- ------- --------- ------- --------
Total discontinued..................... 16,000 12,900 12,900 9,600 23,400 12,000 --
-------- -------- -------- ------- --------- ------- --------
Extraordinary loss from early
extinguishment of debt (3)........... (3,700) (21,700) (1,100) -- -- -- --
Cumulative effect of accounting change(3). -- (26,000) -- -- -- -- --
-------- --------- --------- --------- -------- --------- ---------
Net income............................. $39,000 $3,400 $66,800 $92,400 $56,100 $28,500 $30,100
======== ========= ========= ========= ======== ========= =========
OTHER FINANCIAL DATA:
EBITDA(4)(5)........................... $112,000 $139,000 $179,800 $247,500 $292,200 $76,600 $82,100
Ratio of EBITDA to interest expense.... 2.52x 3.23x 3.88x 4.71x 4.95x 5.14x 5.74x
Ratio of earnings to fixed charges(6)... 1.86x 2.30x 2.75x 3.34x 3.48x 3.76x 4.09x
AS OF LAST DAY OF FEBRUARY, May 31,
----------------------------------------------------------- ---------
1993 1994 1995 1996 1997 1997
(DOLLARS IN THOUSANDS)
Balance Sheet Data:
<S> <C> <C> <C> <C> <C> <C>
Working capital........................ $275,400 $312,800 $379,700 $404,900 $364,600 $ 430,300
Total assets........................... 1,124,800 1,282,300 1,846,400 2,013,100 1,974,600 2,039,000
Long-term debt, excluding current 497,100 567,200 610,700 642,500 528,500 627,900
maturities..........................
Stockholders' equity................... 345,600 345,400 635,500 725,500 758,400 725,300
(FOOTNOTES ON FOLLOWING PAGE)
<PAGE>
(1) Income Statement amounts have been restated to reflect discontinued
operations.
(2) Represents income from continuing operations before the restructuring
charge, interest expense and taxes.
(3) Net of related tax effects.
(4) "EBITDA" is defined as income from continuing operations before
interest expense, taxes and depreciation and amortization. EBITDA
is presented because it is a widely accepted indicator of funds
available to service debt, although it is not a U.S. generally
accepted accounting principles ("GAAP") based measure of liquidity
or financial performance. The Company believes that EBITDA, while
providing useful information, should not be considered in
isolation or as an alternative to net income and cash flows as
determined under GAAP.
(5) Excluding the restructuring charge in fiscal 1997.
(6) For the purpose of calculating the ratio of earnings to fixed
charges, (i) earnings consist of income from continuing operations before
income taxes and the restructuring charge, plus fixed charges and (ii)
fixed charges consist of interest expense incurred, capitalized interest,
amortization of debt expense and 15% of rental payments under operating
leases (an amount estimated by management to be the interest component of
such rentals). If the restructuring charge were included in the ratio
determination for fiscal 1997, the actual ratio would be 1.76x.
</TABLE>
<PAGE>
BUSINESS
Mark IV is a diversified manufacturer of a broad range of proprietary and
other power and fluid transfer products and systems which serve primarily
automotive and industrial markets. Many of Mark IV's product groups have a
significant, and in certain instances the leading, share of their respective
markets. Products manufactured by Mark IV principally serve specialized needs in
markets in which relatively few manufacturers compete. These products are sold
primarily directly, but also through independent distributors, to other
manufacturers, commercial users and resellers in the United States and Europe
and, to a lesser extent, in Canada, Latin America and the Far East. Mark IV
operates 63 manufacturing facilities and 45 distribution and sales locations and
employs approximately 15,800 people in 19 countries.
The Company classifies its operations into the following two business
segments: (i) Mark IV Automotive, which includes the design, manufacture and
distribution of (a) fuel, power transmission, and fluid handling systems and
components, and (b) filters and filtration systems, for the global automotive
aftermarket and OEM (original equipment manufacturers) market; and (ii) Mark IV
Industrial, which includes the design, manufacture and distribution of power and
fluid management systems and components for industrial OEM and distribution
markets worldwide.
Mark IV's business strategy is focused on building its worldwide Automotive
and Industrial business segments through internal growth and selective strategic
acquisitions, and the continuation of cost control and quality improvement
programs. The Company's operating strategy emphasizes establishing cooperative
programs with customers to engineer, design and develop higher value-added
systems in addition to individual products, the introduction of new, more cost
effective and durable products, and management for continuous improvement.
In furtherance of these strategies, over its last five fiscal years, Mark
IV has: (i) enhanced its ability to provide a broader range of products to its
existing customers through its $286.3 million acquisition of Purolator Products
Company, a leading manufacturer of automotive and industrial filtration products
and systems in late-fiscal 1995; (ii) established a joint venture in Brazil and
is in the process of establishing manufacturing facilities in Argentina and
Brazil; (iii) established distribution centers to serve markets in Latin America
and the Pacific Rim, and acquired manufacturing and distribution facilities in
Mexico; (iv) increased its industrial hose and couplings production capacity and
strengthened its position in the hose and couplings products market through its
$78.0 million acquisition of Imperial Eastman at the beginning of fiscal 1997;
(v) emphasized continuous product development, with a significant amount of its
current sales arising from the introduction of new products or products which
have been redesigned; and (vi) initiated during fiscal 1997 a restructuring of
the Company's manufacturing and distribution facilities to make them more
focused and cost effective.
RECENT DEVELOPMENTS
As part of the Company's strategy to become more focused within its
Industrial business segment, the Company sold its Professional Audio, Vapor
Corporation, Interstate Highway Sign, and Eagle Signal businesses and certain
other non-operating assets during fiscal 1997. Shortly after the end of the
fiscal year, the Company also sold its Gulton Data Systems and LFE Industrial
Systems businesses. The total of all of these divestitures generated gross
proceeds of approximately $313 million.
During fiscal 1997, the Company also initiated a restructuring of its
manufacturing and distribution facilities, which is expected to improve customer
service, reduce costs and dedicate its facilities to either the Automotive or
Industrial business segments. The restructuring resulted in a pre-tax charge
against earnings of $112.5 million, with $51.8 million related to cash
expenditures required to be made primarily over a two-year period. The remaining
$60.7 million non-cash portion of the charge represents primarily asset
write-offs and pension benefits to be paid out of the Company's pension fund.
The Company believes that the restructuring will result in an annual pre-tax
cost savings of between $40.0 million and $45.0 million, with some benefit
beginning in the second half of the current fiscal year.
In March 1997, the Company announced its intention to acquire up to 7.3
million shares of its outstanding Common Stock. It is expected that such shares
would be purchased in the open-market, or through privately negotiated
transactions, at prices which the Company considers to be attractive. Through
July 31, 1997, the Company acquired approximately 2.7 million of such shares, at
an average cost of $23.71 per share, or a total cost of approximately $63.7
million.
The Company is a Delaware corporation formed in December, 1970 with its
principal executive offices located at 501 John James Audubon Parkway, P.O. Box
810, Amherst, New York 14236-0810. Its telephone number is (716) 689-4972.
<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
The Private Notes were sold by the Company on August 11, 1997 (the "Issue
Date") to the Initial Purchaser pursuant to the Purchase Agreement. The Initial
Purchaser subsequently sold the Private Notes to (i) "qualified institutional
buyers" ("QIBs"), as defined in Rule 144A under the Securities Act ("Rule
144A"), in reliance on Rule 144A and (ii) to institutional "accredited
investors" within the meaning of subparagraph (a)(1), (2) (3) or (7) of Rule 501
under the Securities Act. As a condition to the sale of the Private Notes, the
Company and the Initial Purchaser entered into the Registration Rights Agreement
on August 11, 1997. Pursuant to the Registration Rights Agreement, the Company
agreed that, unless the Exchange Offer is not permitted by applicable law or
Commission policy, it would (i) file with the Commission a Registration
Statement under the Securities Act with respect to the Exchange Notes within 45
days after the Issue Date, (ii) use its best efforts to cause such Registration
Statement to become effective under the Securities Act within 120 days after the
Issue Date and (iii) use its best efforts to consummate the Exchange Offer
within 150 days after the Issue Date. A copy of the Registration Rights
Agreement has been filed as an exhibit to the Registration Statement. The
Registration Statement is intended to satisfy certain of the Company's
obligations under the Registration Rights Agreement and the Purchase Agreement.
RESALE OF THE EXCHANGE NOTES
With respect to the Exchange Notes, based upon an interpretation by the
staff of the Commission set forth in certain no-action letters issued to third
parties, the Company believes that a holder (other than (i) a broker-dealer who
purchased such Exchange Notes directly from the Company to resell pursuant to
Rule 144A or any other available exemption under the Securities Act, (ii) any
such holder that is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act or (iii) a broker-dealer who acquired Private Notes as
a result of market making or other trading activities) who exchanges Private
Notes for Exchange Notes in the ordinary course of business and who is not
participating, does not intend to participate, and has no arrangement with any
person to participate, in a distribution of the Exchange Notes, will be allowed
to resell Exchange Notes to the public without further registration under the
Securities Act and without delivering to the purchasers of the Exchange Notes a
prospectus that satisfies the requirements of Section 10 of the Securities Act.
However, if any holder acquires Exchange Notes in the Exchange Offer for the
purpose of distributing or participating in the distribution of the Exchange
Notes or is a broker-dealer, such holder cannot rely on the position of the
staff of the Commission enumerated in certain no-action letters issued to third
parties and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale transaction,
unless an exemption from registration is otherwise available. Each broker-dealer
that receives Exchange Notes for its own account in exchange for Private Notes,
where such Private Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
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. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Notes received in exchange for Private
Notes where such Private Notes were acquired by such broker-dealer as a result
of market-making or other trading activities. Pursuant to the Registration
Rights Agreement, the Company has agreed to make this Prospectus, as it may be
amended or supplemented from time to time, available to broker-dealers for use
in connection with any resale for a period of one year after the Registration
Statement is declared effective or until such earlier date on which the Exchange
Notes are freely tradable. See "Plan of Distribution."
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Private
Notes validly tendered and not withdrawn prior to the Expiration Date. The
Company will issue $1,000 principal amount of Exchange Notes in exchange for
each $1,000 principal amount of outstanding Private Notes surrendered pursuant
to the Exchange Offer. Private Notes may be tendered in integral multiples of
$1,000.
The form and terms of the Exchange Notes are the same as the form and terms
of the Private Notes except that (i) the exchange will be registered under the
Securities Act and, therefore, the Exchange Notes will not bear legends
restricting the transfer thereof, (ii) holders of the Exchange Notes will not be
entitled to any of the rights of holders of Private Notes under the Registration
Rights Agreement, which rights will terminate upon the consummation of the
Exchange Offer except under certain limited circumstances. See "--Termination of
Certain Rights." The Exchange Notes will evidence the same obligations as the
Private Notes (which they replace) and will be issued under, and be entitled to
the benefits of, the Indenture, which also authorized the issuance of the
Private Notes, such that both series of Notes will be treated as a single class
of securities under the Indenture.
As of the date of this Prospectus, $250,000,000 in aggregate principal
amount of the Private Notes are outstanding, $____________ of which is
registered in the name of Cede & Co., as nominee for DTC, [and $ of which is
registered in the name of Bear, Stearns & Co. Inc.] Only a registered holder of
the Private Notes (or such holder's legal representative or attorney-in-fact) as
reflected on the records of the Trustee under the Indenture may participate in
the Exchange Offer. There will be no fixed record date for determining
registered holders of the Private Notes entitled to participate in the Exchange
Offer.
Holders of the Private Notes do not have any appraisal or dissenters'
rights under the Indenture in connection with the Exchange Offer. The Company
intends to conduct the Exchange Offer in accordance with the provisions of the
Registration Rights Agreement and the applicable requirements of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
thereunder.
The Company shall be deemed to have accepted validly tendered Private Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
of Private Notes for the purposes of receiving the Exchange Notes from the
Company.
Holders who tender Private Notes in the Exchange Offer 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 Private
Notes pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes described below, in connection
with the Exchange Offer. See "--Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time on ,
1997 unless the Company, in its sole discretion, extends the Exchange Offer, in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will (i) notify the
Exchange Agent of any extension by oral or written notice, (ii) mail to the
registered holders an announcement thereof and (iii) issue a press release or
other public announcement, which shall include disclosure of the approximate
number of Private Notes deposited to date, each prior to 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date. Without limiting the manner in which the Company may choose to make a
public announcement of any delay, extension, amendment or termination of the
Exchange Offer, the Company shall have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than by making a
timely press release to an appropriate news agency.
The Company reserves the right, in its reasonable discretion, (i) to delay
accepting any Private Notes, (ii) to extend the Exchange Offer or (iii) if any
conditions set forth below under "--Conditions" shall not have been satisfied,
to terminate the Exchange Offer by giving oral or written notice of such delay,
extension or termination to the Exchange Agent. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by oral or written notice thereof to the registered holders. If the Exchange
Offer is amended in a manner determined by the Company to constitute a material
change, the Company will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders, and
the Company will extend the Exchange Offer for a period of five to ten business
days, depending upon the significance of the amendment and the manner of
disclosure to the registered holders, if the Exchange Offer would otherwise
expire during such five to ten business day period.
INTEREST ON THE EXCHANGE NOTES
The Exchange Notes will bear interest at a rate equal to 7 1/2% per annum.
Interest on the Exchange Notes will be payable semi-annually in arrears on each
March 1 and September 1, commencing March 1, 1998. Holders of Exchange Notes
will receive interest on March 1, 1998 from the date of initial issuance of the
Exchange Notes, plus an amount equal to the accrued interest on the Private
Notes from August 11, 1997, the date of initial issuance of the Private Notes,
to the date of exchange thereof for Exchange Notes. Holders of Private Notes
that are accepted for exchange will be deemed to have waived the right to
receive any interest accrued on the Private Notes.
PROCEDURES FOR TENDERING
Only a registered holder of Private Notes may tender such Private Notes in
the Exchange Offer. To tender in the Exchange Offer, a holder of Private Notes
must complete, sign and date the Letter of Transmittal, or a facsimile thereof,
have the signatures thereon guaranteed if required by the Letter of Transmittal,
and mail or otherwise deliver such Letter of Transmittal or such facsimile to
the Exchange Agent at the address set forth below under "--Exchange Agent" for
receipt prior to the Expiration Date. In addition, either (i) certificates for
such Private Notes must be received by the Exchange Agent along with the Letter
of Transmittal, (ii) a timely confirmation of a book-entry transfer (a
"Book-Entry Confirmation") of such Private Notes, if such procedure is
available, into the Exchange Agent's account at the Depositary pursuant to the
procedure for book-entry transfer described below, must be received by the
Exchange Agent prior to the Expiration Date or (iii) the holder must comply with
the guaranteed delivery procedures described below.
The tender by a holder that is not withdrawn prior to the Expiration Date
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.
THE METHOD OF DELIVERY OF PRIVATE NOTES AND THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK
OF THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE
AN OVERNIGHT OR HAND DELIVERY SERVICE, PROPERLY INSURED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR PRIVATE NOTES SHOULD BE
SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner(s) of the Private Notes whose Private Notes are
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender should contact the registered holder
promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender on such owner's own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering such owner's Private Notes, either make appropriate
arrangements to register ownership of the Private Notes in such owner's name or
obtain a properly completed bond power from the registered holder. The transfer
of registered ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal described
below (see "--Withdrawal of Tenders"), as the case may be, must be guaranteed by
an Eligible Institution (as defined) unless the Private Notes tendered pursuant
thereto are tendered (i) by a registered holder who has not completed the box
titled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for
the account of an Eligible Institution. In the event that signatures on a Letter
of Transmittal or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantee must be made by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or company having an office or correspondent in
the United States or an "eligible guarantor institution" within the meaning of
Rule 17Ad-15 under the Exchange Act which is a member of one of the recognized
signature guarantee programs identified in the Letter of Transmittal (an
"Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Private Notes listed therein, such Private Notes must
be endorsed or accompanied by a properly completed bond power, signed by such
registered holder as such registered holder's name appears on such Private
Notes.
If the Letter of Transmittal or any Private Notes or bond powers are signed
by Trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
The Exchange Agent and the Depositary have confirmed that any financial
institution that is a participant in the Depositary's system may utilize the
Depositary's Automated Tender Offer Program to tender Private Notes.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Private Notes will be determined
by the Company in its reasonable discretion, which determination will be final
and binding. The Company reserves the absolute right to reject any and all
Private Notes not properly tendered or any Private Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Private Notes. The
Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Private Notes must be cured within such time as the
Company shall determine. Although the Company intends to notify holders of
defects or irregularities with respect to tenders of Private Notes, neither the
Company, the Exchange Agent nor any other person shall incur any liability for
failure to give such notification. Tenders of Private Notes will not be deemed
to have been made until such defects or irregularities have been cured or
waived.
While the Company has no present plan to acquire any Private Notes that are
not tendered in the Exchange Offer or to file a registration statement to permit
resales of any Private Notes that are not tendered pursuant to the Exchange
Offer, the Company reserves the right in its sole discretion to purchase or make
offers for any Private Notes that remain outstanding subsequent to the
Expiration Date or, as set forth below under "--Conditions," to terminate the
Exchange Offer and, to the extent permitted by applicable law, purchase Private
Notes in the open market, in privately negotiated transactions or otherwise. The
terms of any such purchases or offers could differ from the terms of the
Exchange Offer.
By tendering, each holder of Private Notes will represent to the Company
that, among other things, (i) Exchange Notes to be acquired by such holder of
Private Notes in connection with the Exchange Offer are being acquired by such
holder in the ordinary course of business of such holder, (ii) such holder has
no arrangement or understanding with any person to participate in the
distribution of the Exchange Notes, (iii) such holder acknowledges and agrees
that any person who is a broker-dealer registered under the Exchange Act or is
participating in the Exchange Offer for the purposes of distributing the
Exchange Notes must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction of the Exchange Notes, acquired by such person and cannot rely on
the position of the staff of the Commission set forth in certain no-action
letters, (iv) such holder understands that a secondary resale transaction
described in clause (iii) above and any resales of Exchange Notes obtained by
such holder in exchange for Private Notes acquired by such holder directly from
the Company should be covered by an effective registration statement containing
the selling security holder information required by Item 507, as applicable, of
Regulation S-K of the Commission and (v) such holder is not an "affiliate," as
defined in Rule 405 under the Securities Act, of the Company. If the holder is a
broker-dealer that will receive Exchange Notes for such holder's own account in
exchange for Private Notes that were acquired as a result of market-making
activities or other trading activities, such holder will be required to
acknowledge in the Letter of Transmittal that such holder will deliver a copy of
this Prospectus (as it may be supplemented or amended) in connection with any
resale of such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, such holder will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
RETURN OF PRIVATE NOTES
If any tendered Private Notes are not accepted for any reason set forth in
the terms and conditions of the Exchange Offer or if Private Notes are withdrawn
or are submitted for a greater principal amount than the holders desire to
exchange, such unaccepted, withdrawn or non-exchanged Private Notes will be
returned without expense to the tendering holder thereof (or, in the case of
Private Notes tendered by book-entry transfer into the Exchange Agent's account
at the Depositary pursuant to the book-entry transfer procedures described
below, such Private Notes will be credited to an account maintained with the
Depositary) as promptly as practicable.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Private Notes at DTC for purposes of the Exchange Offer within two
business days after the date of this Prospectus, and any financial institution
that is a participant in the Depositary's systems may make book-entry delivery
of Private Notes by causing DTC to transfer such Private Notes into the Exchange
Agent's account at DTC in accordance with DTC's procedures for transfer.
However, although delivery of Private Notes may be effected through book-entry
transfer at DTC, the Letter of Transmittal or facsimile thereof, with any
required signature guarantees and any other required documents, must, in any
case, be transmitted to and received by the Exchange Agent at the address set
forth below under "--Exchange Agent" on or prior to the Expiration Date or
pursuant to the guaranteed delivery procedures described below.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Private Notes and (i) whose Private Notes
are not immediately available or (ii) who cannot deliver their Private Notes,
the Letter of Transmittal or any other required documents to the Exchange Agent
prior to the Expiration Date, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives
from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery substantially in the form provided by the
Company (by facsimile transmission, mail or hand delivery) setting
forth the name and address of the holder, the certificate number(s) of
such Private Notes and the principal amount of Private Notes tendered,
stating that the tender is being made thereby and guaranteeing that,
within five New York Stock Exchange trading days after the Expiration
Date, the Letter of Transmittal (or a facsimile thereof), together with
the certificate(s) representing the Private Notes in proper form for
transfer or a Book-Entry Confirmation, as the case may be, and any
other documents required by the Letter of Transmittal, will be
deposited by the Eligible Institution with the Exchange Agent; and
(c) Such properly executed Letter of Transmittal (or facsimile
thereof), as well as the certificate(s) representing all tendered
Private Notes in proper form for transfer and all other documents
required by the Letter of Transmittal are received by the Exchange
Agent within five New York Stock Exchange trading days after the
Expiration Date. Upon request to the Exchange Agent, a Notice of
Guaranteed Delivery will be sent to holders who wish to tender their
Private Notes according to the guaranteed delivery procedures set
forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Private Notes may be
withdrawn at any time prior to the Expiration Date.
To withdraw a tender of Private Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to the Expiration Date. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private
Notes to be withdrawn (including the certificate number or numbers and principal
amount of such Private Notes) and (iii) be signed by the holder in the same
manner as the original signature on the Letter of Transmittal by which such
Private Notes were tendered (including any required signature guarantees). All
questions as to the validity, form and eligibility (including time of receipt)
of such notices will be determined by the Company, in its sole discretion, whose
determination shall be final and binding on all parties. Any Private Notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no Exchange Notes will be issued with respect thereto unless
the Private Notes so withdrawn are validly retendered. Properly withdrawn
Private Notes may be retendered by following one of the procedures described
above under "The Exchange Offer--Procedures for Tendering" at any time prior to
the Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall not
be required to accept for exchange, or exchange the Exchange Notes for, any
Private Notes, and may terminate the Exchange Offer as provided herein before
the acceptance of such Private Notes, if the Exchange Offer violates applicable
law, rules or regulations or an applicable interpretation of the staff of the
Commission.
If the Company determines in its reasonable discretion that any of these
conditions are not satisfied, the Company may (i) refuse to accept any Private
Notes and return all tendered Private Notes to the tendering holders, (ii)
extend the Exchange Offer and retain all Private Notes tendered prior to the
expiration of the Exchange Offer, subject, however, to the rights of holders to
withdraw such Private Notes (see "--Withdrawal of Tenders") or (iii) waive such
unsatisfied conditions with respect to the Exchange Offer and accept all
properly tendered Private Notes that have not been withdrawn. If such waiver
constitutes a material change to the Exchange Offer, the Company will promptly
disclose such waiver by means of a prospectus supplement that will be
distributed to the registered holders of the Private Notes, and the Company will
extend the Exchange Offer for a period of five to ten business days, depending
upon the significance of the waiver and the manner of disclosure to the
registered holders, if the Exchange Offer would otherwise expire during such
five to ten business day period.
TERMINATION OF CERTAIN RIGHTS
All rights under the Registration Rights Agreement (including registration
rights) of holders of the Private Notes eligible to participate in the Exchange
Offer will terminate upon consummation of the Exchange Offer except with respect
to the Company's continuing obligations (i) to indemnify such holders (including
any broker-dealers) and certain parties related to such holders against certain
liabilities (including liabilities under the Securities Act), (ii) to provide,
upon the request of any holder of a transfer-restricted Private Note, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Private Notes pursuant to Rule 144A, (iii) to use its
best efforts to keep the Registration Statement effective to the extent
necessary to ensure that it is available for resales of Exchange Notes by
broker-dealers for a period of up to one year from the date the Registration
Statement is declared effective or until such earlier date on which the Exchange
Notes are freely tradeable and to provide copies of the latest version of the
Prospectus to such broker-dealers upon their request during such period and (iv)
to file a shelf registration statement as required by the Registration Rights
Agreement if any holder of transfer-restricted Notes notifies the Company within
20 business days of the consummation of the Exchange Offer that (A) such holder
is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and that
this Prospectus is not appropriate or available for such resales by such holder,
or (C) that such holder is a broker-dealer and holds Private Notes acquired
directly from the Company or one of its affiliate (see "--Additional Interest").
ADDITIONAL INTEREST
The Registration Rights Agreement provides that (i) the Company will use
its best efforts file the Registration Statement with the Commission on or prior
to 45 days after the Closing Date, (ii) the Company will use its best efforts to
have the Registration Statement declared effective by the Commission on or prior
to 120 days after the Issue Date, (iii) unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company will use its best
efforts to consummate the exchange offer within 150 days after the Issue Date
and (iv) if obligated to file a shelf registration statement pursuant to the
terms of the Registration Rights Agreement (the "Shelf Registration Statement"
and, collectively with the Registration Statement, the "Registration
Statements"), the Company will use its best efforts to file such Shelf
Registration Statement with the Commission on or prior to 45 days after such
filing obligation arises and to cause the Shelf Registration to be declared
effective by the Commission on or prior to 120 days after such obligation
arises. If (a) the Company fails to file the Exchange Offer Registration
Statement or the Shelf Registration Statement on or prior to the 45th Calendar
day after the Issue Date then commencing on the day following such required
filing date, additional interest shall accrue on the principal amount of the
Private Notes at a rate of 0.50% per annum, (b) neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement is declared effective
by the Commission on or prior to the 75th calendar day after the applicable
required filing date or, notwithstanding that the Company has consummated or
will consummate an Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not declared
effective by the Commission on or prior to the 75th Calendar day after the date
such Shelf Registration Statement was required to be filed, then, commencing on
the 76th Calendar day after the applicable required filing date, additional
interest shall accrue on the principal amount of the Private Notes at a rate of
0.50% per annum or (c) the Company fails to exchange Exchange Notes for all
Private Notes on or prior to the 150th Calendar day after the Issue Date or, if
applicable, the Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective at any time prior to
the second anniversary of its effective date, then commencing the 151st Calendar
day after such issue date or such date that the Shelf Registration ceases to be
effective additional interest shall accrue on the principal amount of the
Private Notes at a rate of 0.50% per annum. The additional interest rate on the
Private Notes may not exceed in the aggregate 0.50% per annum. Any amounts of
additional interest due pursuant to clause (a), (b) or (c) above will be payable
in cash on March 1 and September 1 of each year to the holders of record on the
preceding February 15 or August 15, respectively. Following the cure of all
Registration Defaults, the accrual of additional interest will cease.
Holders of Notes will be required to make certain representations to the
Company (as described in the Registration Rights Agreement) in order to
participate in the Exchange Offer and 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 their Private Notes
included in the Shelf Registration Statement and benefit from the provisions
regarding Additional Interest set forth above.
FEES AND EXPENSES
The expenses incident to the Company's compliance with its obligations
under the Registration Rights Agreement will be borne by the Company. The
expenses of soliciting tenders will be borne by the Company. The principal
solicitation is being made by mail; however, additional solicitation may be made
by telegraph, telephone or in person by officers and regular employees of the
Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company and are estimated in the aggregate to be $200,000. Such
expenses include registration fees, fees and expenses of the Exchange Agent and
the Trustee, accounting and legal fees and printing costs, among others.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Private Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of the Private Notes pursuant to
the Exchange Offer, then the amount of any such transfer taxes (whether imposed
on the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
CONSEQUENCE OF FAILURE TO EXCHANGE
Participation in the Exchange Offer is voluntary. Holders of the Private
Notes are urged to consult their financial and tax advisors in making their own
decisions on what action to take.
The Private Notes that are not exchanged for the Exchange Notes pursuant to
the Exchange Offer will remain restricted securities. Accordingly, such Private
Notes may be resold only (i) to a person whom the seller reasonably believes is
a QIB in a transaction meeting the requirements of Rule 144A, (ii) in a
transaction meeting the requirements of Rule 144 under the Securities Act, (iii)
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act, (iv) in accordance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel if the Company so requests), (v) to the Company
or (vi) pursuant to an effective registration statement and, in each case, in
accordance with any applicable securities laws of any state of the United States
or any other applicable jurisdiction.
ACCOUNTING TREATMENT
For accounting purposes, the Company will recognize no gain or loss as a
result of the Exchange Offer. The expenses of the Exchange Offer will be
amortized over the term of the Exchange Notes.
EXCHANGE AGENT
Marine Midland Bank has been appointed Exchange Agent for the Exchange
Offer. Delivery of the Letters of Transmittal and any other required documents,
questions, requests for assistance and requests for additional copies of this
Prospectus or of the Letter of Transmittal should be directed to the Exchange
Agent as follows:
BY REGISTERED OR CERTIFIED MAIL:
Marine Midland Bank
140 Broadway
New York, New York 10005
Attn:
Operations Department
CONFIRM BY TELEPHONE: (212) 658-5931
CONFIRM BY FAX: (212) 658-2292
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
<PAGE>
DESCRIPTION OF THE EXCHANGE NOTES
GENERAL
The Exchange Notes will be issued pursuant to an indenture (the
"Indenture") dated as of August 11, 1997 between the Company and Marine Midland
Bank, as trustee (the "Trustee") in a private transaction that is not subject to
the registration requirements of the Securities Act. See "Notice to Investors."
The terms of the Exchange Notes include those stated in the Indenture 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 Exchange
Notes are subject to all such terms and holders of the Exchange Notes are
referred to the Indenture and the Trust Indenture Act for a statement thereof.
The following summary of certain provisions of the Indenture does not purport to
be complete and is subject to, and is qualified in its entirety by reference to,
the provisions of the Indenture, including the definitions therein of certain
terms used below. A copy of the form of Indenture and Registration Rights
Agreement is available as set forth under "--Additional Information." The
definitions of certain terms used in the following summary are set forth below
under "--Certain Definitions." For purposes of this section, references to the
"Company" include only the Company and not its subsidiaries and references to
the "Notes" include the Private Notes and Exchange Notes.
The Exchange Notes will be general unsecured obligations of the Company,
will be subordinated in right of payment to the prior payment in full of all
existing and future Senior Indebtedness of the Company, will be senior in right
of payment to, or PARI PASSU in right of payment with, any existing and future
Senior Subordinated Indebtedness of the Company, and will be effectively
subordinated to the indebtedness of the Company's subsidiaries. See
"--Subordination."
PRINCIPAL, MATURITY AND INTEREST
The Exchange Notes are limited in aggregate principal amount to
$250,000,000 and will mature on September 1, 2007. Interest on the Notes will
accrue at the rate of 7 1/2% per annum and will be payable semi-annually on each
March 1 and September 1 commencing on March 1, 1998, to holders of record of the
Notes ("Holders") on the immediately preceding February 15 and August 15,
whether or not a business day. Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Principal of, and interest on, the Notes will be payable at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York or, at the option of the Company, payment of interest and
principal may be made by check mailed to the Holders at their respective
addresses set forth in the register of the Holders; PROVIDED that all payments
with respect to Global Notes and Certificated Securities held by Holders who
have given wire transfer instructions to the Company will be required to be made
by wire transfer of same day funds to the accounts specified by the Holders
thereof. Unless otherwise designated by the Company, the Company's office or
agency in New York will be the office of the Trustee maintained for such
purpose. The Notes will be issued only in registered form, without coupons, in
denominations of $1,000 and integral multiples thereof.
CERTAIN COVENANTS
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company, without the consent of the Holders of Notes then outstanding,
may consolidate or merge with or into, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person which is a
corporation, partnership or trust organized and validly existing under the laws
of any domestic jurisdiction, provided that (1) any successor Person assumes by
supplemental indenture the Company's obligations on the Notes and under the
Indenture, (2) after giving effect to the transaction, no Event of Default, and
no event which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing under the Indenture and (3) the Company
shall have delivered an officer's certificate and an opinion of counsel, each
stating that such transaction or supplemental indenture, complies with the
Indenture.
ANTI-LAYERING
The Indenture provides that the Company will not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness and senior
in any respect in right of payment to the Notes, including having a stated
maturity earlier than the Notes.
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indenture as "Events of Default"
with respect to the Notes: (1) failure to pay any interest on any Note when due
and payable, continued for 30 days; (2) failure to pay principal of any Note at
its maturity; (3) failure to perform any other covenant of the Company in the
Indenture, continued for 60 days after written notice as provided in the
Indenture; (4) default under any indenture or instrument (other than the
Indenture or any Note) under which the Company shall have outstanding or shall
have guaranteed the payment of at least $25.0 million aggregate principal amount
of indebtedness for money borrowed which default (a) is caused by failure to pay
the principal of, or interest on, such indebtedness prior to the expiration of
the grace period provided in such indebtedness on the date of such default or
(b) results in acceleration of such indebtedness prior to its express maturity
and such acceleration has not been annulled within ten days after written notice
as provided in the Indenture; and (5) certain events in bankruptcy, insolvency
or reorganization involving the Company.
If an Event of Default occurs and is continuing, then either the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding by notice as provided in the Indenture may declare the principal
amount of all of the Notes to be due and payable immediately. Subject to the
subordination provisions described below, at any time after a declaration of
acceleration with respect to Notes has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may, under
certain circumstances, rescind and annul such acceleration.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Notes then outstanding will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Notes.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
DEFEASANCE AND DISCHARGE OF THE INDENTURE AND THE NOTES
If the Company irrevocably deposits, or causes to be deposited with the
Trustee or the Paying Agent, at any time prior to the stated maturity of the
Notes, as trust funds in trust, money or direct noncallable obligations of or
guaranteed by the United States of America in amounts (including interest, but
without consideration of any reinvestment of such interest) and maturities
sufficient to pay timely and discharge the entire principal of the then
outstanding Notes and all interest then due in cash, the Indenture shall cease
to be of further effect as to all outstanding Notes (except, among other things,
as to (i) remaining rights of registration of transfer and substitution and
exchange of the Notes, (ii) rights of holders to receive payment of principal of
and interest on the Notes, and (iii) the rights, obligations and immunities of
the Trustee).
SUBORDINATION
The Notes will be general unsecured obligations of the Company, will be
subordinated in right of payment to the prior payment in full of all existing
and future Senior Indebtedness of the Company, will be senior in right of
payment to, or PARI PASSU in right of payment with, any existing and future
Senior Subordinated Indebtedness of the Company, and will be effectively
subordinated to the indebtedness of the Company's subsidiaries. At June 30,
1997, on a pro forma basis, after giving effect to the Offering and the
transaction thereby, Senior Indebtedness of the Company and its subsidiaries was
approximately $110,900,000 and Senior Subordinated Indebtedness of the Company
was approximately $755,300,000.
Upon any bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its properties, or any assignment for the
benefit of creditors or marshalling of the assets and liabilities or the Company
or any distribution to creditors or a liquidation or dissolution of the Company,
the holders of Senior Indebtedness will be entitled to receive payment in full
in cash or, at the option of such holders, cash equivalents of all obligations
with respect to Senior Indebtedness, before the Holders receive any payment of
principal or interest on the Notes or receive any distributions to which the
Holders would otherwise be entitled.
Upon the maturity of any Senior Indebtedness by lapse of time, acceleration
(unless waived, rescinded or annulled) or otherwise, all principal thereof and
interest thereon shall first be paid in full in cash, or such payment duly
provided for in cash or in a manner satisfactory to the holders of such Senior
Indebtedness, before any payment is made on account of principal, interest, fees
or expenses on the Notes.
The Company may not, directly or indirectly, pay principal or interest on
the Notes and may not acquire any Notes for cash or property or make any other
distribution with respect to the Notes if (i) a default in the payment of
principal or interest on any Senior Indebtedness occurs and is continuing (a
"Payment Default") unless and until such default has been cured or waived; or
(ii) a default, other than a Payment Default, on any Senior Indebtedness occurs
and is continuing that permits the holders (or the agent) of such Senior
Indebtedness to accelerate its maturity (a "Non-Payment Default"), and such
default is either the subject of judicial proceedings or the Trustee or the
Paying Agent receives a notice of the default from a person who may give it
pursuant to the terms of the Indenture at least two business days prior to the
relevant payment date; PROVIDED, HOWEVER, that only one such notice relating to
the same event of default or any other default existing at the time of such
notice under the Senior Indebtedness may be given during any 365-consecutive-day
period.
The Company shall resume payments on the Notes and may acquire them upon
the earlier of when (a) the default is cured or waived, or (b) in the case of a
default referred to in clause (ii) in the immediately preceding paragraph, the
179th day after receipt of the notice referred to therein if the default is not
the subject of judicial proceedings.
A Payment Default or Non-Payment Default with respect to the Senior
Indebtedness does not suspend the rights of the Trustee or the Holders to take
any action to accelerate the maturity of the Notes; PROVIDED, HOWEVER, that all
Senior Indebtedness then or thereafter due shall be paid first. In addition, any
acceleration of the maturity of the Notes as a result of the failure by the
Company to make any payment of principal or interest on the Notes as a result of
the foregoing subordination provisions shall be automatically rescinded if (i)
all defaults on Senior Indebtedness are permanently cured or waived and (ii) the
payment or payments, the omission of which gave rise to the Event of Default, is
or are made within 179 days after the Trustee received notice of the default or
defaults on Senior Indebtedness and at the time of such recision no other
Default or Event of Default shall have occurred and be continuing. See "Events
of Default and Remedies."
As a result of the subordination provisions described above, in the event
of insolvency of the Company, funds that would otherwise be payable to Holders
will be paid or turned over to the holders of Senior Indebtedness to the extent
necessary to pay the Senior Indebtedness in full, and the Company may be unable
to make all payments due under the Notes. Additionally, in such event, Holders
may recover less ratably than general creditors of the Company or the general
creditors of the Company's subsidiaries to whom the Notes are structurally
subordinated.
TRANSFER AND EXCHANGE
A holder may transfer or exchange Notes in accordance with the Indenture.
The Registrar may require a holder, among other things, to furnish appropriate
endorsements and transfer documents, and to pay any taxes and fees required by
law or permitted by the Indenture. The registered holder of a Note will be
treated as the owner of it for all purposes.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes; PROVIDED, HOWEVER, that no
such modification or amendment may, without the consent of the Holder of each
Note affected thereby, change the fixed maturity of the principal of, or any
installment of principal of or interest on any Note, reduce the principal amount
of, or interest on, any Note, change the place of payment where or coin or
currency in which the principal of, or interest on, any Notes is payable, impair
the right to institute suit for the enforcement of any payment on or with
respect to any Note, make any change in the subordination provisions of the
Indenture that adversely affects the rights of any holders of the Notes or any
change to any other section of the Indenture that adversely affects the rights
of any holder of the Notes under the subordination provisions of the Indenture,
reduce the percentage in principal amount of outstanding Notes, the consent of
the Holders of which is required for modification or amendment of the Indenture
or for waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults or modify any of the above provisions.
The Holders of not less than a majority in aggregate principal amount of
the outstanding Notes may, on behalf of the Holders of all Notes, waive
compliance by the Company with certain restrictive provisions of the Indenture.
The Holders of not less than a majority in aggregate principal amount of the
outstanding Notes may, on behalf of the Holders of all Notes, waive any past
default under the Indenture, except a default (1) in the payment of principal
of, or interest on, any Note, or (2) in respect of a covenant or provision of
the Indenture which cannot be modified or amended without the consent of the
Holder of each Note.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must eliminate
such conflict within 90 days, or apply to the Commission for permission to
continue or resign.
The holders of a majority in principal amount of the then outstanding Notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the conduct
of his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any of the holders of the Notes, unless they shall have offered to
the Trustee security or indemnity satisfactory to it against any loss, liability
or expense.
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the Notes will be issued in fully registered
form, without coupons. Except as described below, the Notes will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), New York, New York,
as depositary (the "Depositary"), and registered in the name of Cede & Co., as
DTC's nominee, in the form of one or more global Note certificates (the "Global
Note").
GLOBAL NOTES. Ownership of beneficial interests in a Global Note will be
limited to persons who have accounts with DTC ("participants") or persons who
hold interests through participants. Ownership of beneficial interests in the
Global Notes will be shown on, and the transfer of these ownership interests
will be effected only through, records maintained by DTC or its nominee (with
respect to interests of participants) and the records of participants (with
respect to interests of persons other than participants).
So long as DTC, or its nominee, is the registered owner or holder of a
Global Note, DTC or such nominee, as the case may be, will be considered the
sole owner or holders of the Notes represented by such Global Note for all
purposes under the Indenture and the Notes. In addition, no beneficial owner of
an interest in a Global Note will be able to transfer that interest except in
accordance with DTC's applicable procedures (in addition to those under the
Indenture referred to herein).
Payments on Global Notes will be made to DTC, or its nominee, 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 records relating
to or payments made on account of beneficial ownership interests in the Global
Notes or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that DTC, or its nominee, upon receipt of any payment
in respect of a Global Note representing any Notes held by it or its nominee,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Note for such Notes as shown on the records of DTC or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Note held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in the names of
nominees for such customers. Such payments will be the responsibility of such
participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules. The laws of some states require that certain
persons take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Note to such persons
may be limited. Because DTC can only act on behalf of participants, who in turn
act on behalf of indirect participants (defined below) and certain banks, the
ability of a person having a beneficial interest in a Global Note to pledge such
interest to persons or entities that do not participate in the DTC system or
otherwise take actions in respect of such interest, may be affected by the lack
of a physical certificate of such interest.
The Company believes that it is the policy of DTC that it will take any
action permitted to be taken by a holder of Notes (including the presentation of
Notes for exchange) only at the direction of one or more participants to whose
account interests in the Global Notes are credited and only in respect of such
portion of the aggregate principal amount of the Notes as to which such
participant or participants has or have given such direction.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
section 17A of the Exchange Act. DTC holds securities that its participants
deposit with DTC and facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. Access to the DTC system
is also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a
direct participant, either directly or indirectly ("indirect participants"). The
rules applicable to DTC and its participants are on file with the Commission.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Notes among participants of DTC, it is
under no obligation to perform or continue 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 DTC or its participants or
indirect participants of their respective obligations under the rules and
procedures governing their operations.
CERTIFICATED SECURITIES
Subject to certain conditions, any person having a beneficial interest in
the Global Note may, upon request to the Trustee, exchange such beneficial
interest for Notes in the form of Certificated Securities. Upon any such
issuance, the Trustee is required to register such Certificated Securities in
the name of, and cause the same to be delivered to, such person or persons (or
the nominee of any thereof). In addition, if (i) the Company notifies the
Trustee in writing that the Depositary is no longer willing or able to act as a
depositary and the Company is unable to locate a qualified successor within 90
days or (ii) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Notes in the form of Certificated Securities
under the Indenture, then, upon surrender by the Global Note Holder of its
Global Note, Notes in such form will be issued to each person that the Global
Note Holder and the Depositary identify as being the beneficial owner of the
related Notes.
Neither the Company nor the Trustee will be liable for any delay by the
Global Note Holder or the Depositary in identifying the beneficial owners of
Notes and the Company and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from the Global Note Holder or the
Depositary for all purposes.
In case any Note shall become mutilated, defaced, destroyed, lost or
stolen, the Company will execute and, upon the Company's request, the Trustee
will authenticate and deliver a new Note, of like tenor and equal principal
amount in exchange and substitution for such Note (upon surrender and
cancellation thereof) or in lieu of an substitution for such Note. In case such
Note is destroyed, lost or stolen, the applicant for a substituted Note shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, and, in every case of
destruction, loss or theft of such Note, the applicant shall also furnish to the
Company or the Trustee satisfactory evidence of the destruction, loss or theft
of such Note and of the ownership thereof. Upon the issuance of any substituted
Note, the Company may require the payment by the registered holder thereof of a
sum sufficient to cover fees and expenses connected therewith.
SAME-DAY SETTLEMENT AND PAYMENT
The Indenture will require that payments in respect of the Notes
represented by the Global Note (including principal and interest) be made in
immediately available same day funds. With respect to Certificated Securities,
however, the Company will make all payments of principal and interest by mailing
a check to each Holder's registered address. Secondary trading in long-term
notes and debentures of corporate issuers is generally settled by clearing-house
or next-day funds. In contrast, the Notes represented by the Global Note are
expected to be eligible to trade in the PORTAL Market and to trade in the
Depositary's Same-Day Funds Settlement System, and any permitted secondary
market trading activity in such Notes will, therefore, be required by the
Depositary to be settled in immediately available funds. The Company expects
that secondary trading in the Certificated Securities will also be settled in
immediately available funds.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as any
other capitalized terms used herein for which no definition is provided.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease which
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Credit Agreement" means the Amended and Restated Credit and Guarantee
Agreement, dated as of March 8, 1996, as amended from time to time, by and among
the Company and Dayco PTI S.p.A., as Borrowers, and certain other subsidiaries
of the Company, as Guarantors, The Chase Manhattan Bank, as Administrator and
Bid Agent, Bank of America National Trust and Savings Association, as
Documentation Agent, and the banks and other financial institutions that are
signatories thereto, and any refinancings or replacements thereof providing for
Indebtedness in principal amount of up to $500,000,000, less, in the case of any
such refinancings or replacements, the amount of all permanent reductions
thereunder.
"8 3/4% Notes" means the Company's 8 3/4% Senior Subordinated Notes due
April 1, 2003 issued pursuant to the Indenture, dated as of March 15, 1993,
between the Company and Citibank, N.A., as trustee.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
from time to time.
"Indebtedness" of any person means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement obligations with respect thereto) or
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capital Lease Obligations), if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising in
the ordinary course of business shall not be considered Indebtedness), and shall
also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock,
indebtedness secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed, guarantees of items that would be included within this
definition to the extent of such guarantees (exclusive of whether such items
would appear upon such balance sheet), and net liabilities in respect of
Interest Rate Protection Obligations. For purposes of the preceding sentence,
the maximum fixed repurchase price of any Redeemable Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to the Indenture,
provided that if such Redeemable Stock is not then permitted to be repurchased,
the repurchase price shall be the book value of such Redeemable Stock. The
amount of Indebtedness of any person at any date shall be, without duplication,
(i) the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any such contingent obligations at
such date and (ii) in the case of Indebtedness of others secured by a Lien to
which the property or assets owned or held by such Person is subject, the lesser
of the fair market value at such date of any asset subject to a Lien securing
the Indebtedness of others and the amount of the Indebtedness secured.
"Interest Rate Protection Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include without limitation, interest rate swaps, caps,
floors, collars and similar agreements.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give any security interest in and any filing or other agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Redeemable Stock" means any capital stock or other equity interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable before the stated maturity of the Notes), or upon
the happening of any event, matures or is mandatorily redeemable, in whole or in
part, prior to the stated maturity of the Notes.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on any Indebtedness of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed, unless, in the
case of any particular Indebtedness, the instrument under which such
Indebtedness is created, incurred, assumed or guaranteed expressly provides that
such Indebtedness shall not be senior or superior in right of payment to the
Notes. Without limiting the generality of the foregoing, "Senior Indebtedness"
shall include the principal of, premium, if any, and interest on all obligations
of every nature of the Company from time to time owed to the lenders under the
Credit Agreement, including, without limitation, principal of and interest on,
and all fees and expenses payable under the Credit Agreement. Notwithstanding
anything to the contrary contained in this Indenture or the Notes, "Senior
Indebtedness" shall not include any Indebtedness represented by the 8 3/4% Notes
or the 7 3/4% Notes.
"7 3/4% Notes" means the Company's 7 3/4% Senior Subordinated Notes due
April 1, 2006 issued pursuant to the Indenture, dated as of March 11, 1996,
between the Company and Fleet National Bank, as trustee.
"Senior Subordinated Indebtedness" means Indebtedness (i) represented by
the 8 3/4% Notes and the 7 3/4% Notes and (ii) any other Indebtedness which is
PARI PASSU with the Notes and expressly provides that it is subordinated to
Senior Indebtedness.
DESCRIPTION OF PRIVATE NOTES
The terms of the Private Notes are identical in all material respects to
the Exchange Notes, except that (i) the Private Notes have not been registered
under the Securities Act, are subject to certain restrictions on transfer and
are entitled to certain rights under the applicable Registration Rights
Agreement (which rights will terminate upon consummation of the Exchange Offer,
except under limited circumstances) and (ii) the Exchange Notes will not provide
for payment of Additional Interest thereon. The Private Notes provide that, in
the event that the Exchange Offer is not consummated within 150 days after
August 11, 1997 or, in certain limited circumstances, in the event of a shelf
registration statement (the "Shelf Registration Statement") with respect to the
resale of the Private Notes is not declared effective by September 25, 1997,
then Additional Interest will accrue (in addition to the stated interest rate on
the Private Notes at the rate of 0.50% per annum on the principal amount of the
Private Notes. See "The Exchange Offer--Additional Interest."
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a brief summary of certain U.S. federal income tax
consequences associated with the acquisition, ownership and disposition of the
Notes applicable to initial purchasers of Notes. The summary is based upon the
Internal Revenue Code of 1986, as amended (the "Code"), regulations, rulings and
judicial decisions, all as of the date hereof and all of which are subject to
change, possibly with retroactive effect. The discussion below does not address
all aspects of U.S. federal income taxation that may be relevant to particular
holders in the context of their specific investment circumstances (for example,
persons holding Notes as a hedge against currency risks or as part of a straddle
or conversion transaction) or to certain types of holders subject to special
treatment under such laws (for example, financial institutions, tax-exempt
organizations and insurance companies). In addition, the discussion does not
address any aspect of state, local or foreign taxation and assumes that such
purchasers of the Notes will hold them as "capital assets" within the meaning of
Section 1221 of the Code.
For purposes of this discussion, a "U.S. holder" is an individual who is a
citizen or resident of the United States, a corporation (or other entity taxable
as a corporation) or partnership created under the laws of the United States or
any political subdivision thereof, an estate that is subject to U.S. federal
income taxation on its worldwide income regardless of its source, or a trust
other than a trust described in Section 7701(a)(31) of the Code.
HOLDERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING
THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF ACQUIRING, OWNING AND
DISPOSING OF THE NOTES AS WELL AS THE APPLICATION OF STATE, LOCAL AND FOREIGN
INCOME AND OTHER TAX LAWS.
U.S. HOLDERS
Interest payable on the Notes will be includable as ordinary income in the
income of a U.S. holder as received or accrued, in accordance with such holder's
regular method of accounting. Except as provided below under "--Exchange Offer,"
if a Note is sold or otherwise disposed of, a U.S. holder generally will
recognize gain or loss equal to the difference between the amount realized on
the disposition (except to the extent attributable to accrued but unpaid
interest) and such holder's tax basis in the Note. Such gain or loss will
generally be capital gain or loss.
NON-U.S. HOLDERS
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a person other than a U.S. holder generally
will not be subject to U.S. federal income tax provided (i) such gain is not
effectively connected with the conduct by such holder of a trade or business in
the United States, and (ii) in the case of gains derived by an individual, such
individual is not in the United States for 183 days or more in the taxable year
of the disposition.
Payments of interest to a person other than a U.S. holder with respect to a
Note generally will not be subject to U.S. federal income tax and a withholding
tax if (a) the interest is not effectively connected with the conduct by such
holder of a trade or business in the United States, (b) either (i) the
beneficial owner of the Note certifies to the Company or its agent, under
penalties of perjury, that it is not a U.S. person and provides its name and
address on an Internal Revenue Service Form W-8 (or a suitable substitute form)
or (ii) a securities clearing organization, bank or other financial organization
that holds customers' securities in the ordinary course of business (a
"financial institution") and holds the Note certifies under penalties of perjury
that such a Form W-8 (or suitable substitute form) has been received from the
beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof, and (c) the person
does not actually or constructively own 10% or more of the voting power of all
voting stock of the Company and is not a controlled foreign corporation for U.S.
tax purposes that is related to the Company through stock ownership.
Proposed Treasury regulations, which would be effective with respect to
payments made after December 31, 1997 if adopted in their current form, would
provide alternative certification requirements and means by which a holder of a
Note could claim the exemption from U.S. federal income and withholding tax.
EXCHANGE OFFER
A holder should not recognize any taxable gain or loss on the exchange of
the Private Notes for Exchange Notes pursuant to the Exchange Offer. The
Exchange Notes should have the same issue price as the Private Notes, and a
holder should have the same adjusted tax basis and holding period in the
Exchange Notes as the holder had in the Private Notes immediately before the
exchange.
<PAGE>
PLAN OF DISTRIBUTION
Based on an interpretation by the staff of the Commission set forth in
no-action letters issued to third parties, the Company believes that the
Exchange Notes issued pursuant to the Exchange Offer in exchange for Private
Notes may be offered for resale, resold and otherwise transferred by a holder
thereof (other than (i) an "affiliate" of the Company within the meaning of Rule
405 under the Securities Act, (ii) a broker-dealer who acquired Private Notes
directly from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act or (iii) a broker-dealer who acquired Private
Notes as a result of market making or other trading activities), without
compliance with the registration and prospectus delivery requirements of the
Securities Act; PROVIDED that the holder is acquiring Exchange Notes in the
ordinary course of its business and is not participating, and has no arrangement
or understanding with any person to participate, in the distribution of the
Exchange Notes. Holders of Private Notes wishing to accept the Exchange Offer
must represent to the Company, as required by the Registration Rights Agreement,
that such conditions have been met. The Company believes that none of the
registered holders of the Private Notes is an affiliate (as such term is defined
in Rule 405 under the Securities Act) of the Company.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Private Notes must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. 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. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Private Notes, where such Private Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed to make this Prospectus (as it
may be amended or supplemented) available to any broker-dealer, upon request,
for use in connection with any such resale, for a period of one year after the
Registration Statement is declared effective by the Commission or until such
earlier date on which all the Exchange Notes are freely tradeable. However, any
broker-dealer who acquired the Notes directly from the Company may not fulfill
its prospectus delivery requirements with this Prospectus, but must comply with
the registration and prospectus delivery requirements of the Securities Act.
The Company will not receive any proceeds from any sale of the Exchange
Notes by broker-dealers or any other persons. Exchange Notes received by
broker-dealers for their own accounts pursuant to the Exchange Offer may be sold
for time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or
a combination of such methods of resale, at market prices prevailing at the time
of such 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 purchasers of any
such Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in the distribution of such Exchange Notes may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes 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.
By acceptance of this Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer agrees that, upon receipt of
notice from the Company of the happening of any event which makes any statement
in the Prospectus untrue in any material respect or which requires the making of
any changes in the Prospectus in order to make the statements therein not
misleading (which notice the Company agrees to deliver promptly to such
broker-dealer), such broker-dealer will suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission and has furnished copies of the amended or supplemented Prospectus
to such broker-dealer. If the Company shall give any such notice to suspend the
use of the Prospectus, it shall extend the one-year period referred to above by
the number of days during the period from and including the date of the giving
of such notice to and including the date when the broker-dealers shall have
received copies of the supplemented or amended Prospectus necessary to permit
resales of the Exchange Notes.
The Company has agreed to pay all expenses incident to the Company's
performance of, or compliance with, the Registration Rights Agreement and will
indemnify the holders (including any broker-dealers) and certain parties related
to the holders against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Exchange Notes
will be passed upon on behalf of the Company by Stroock & Stroock & Lavan LLP,
New York, New York, special counsel to the Company.
EXPERTS
The consolidated balance sheets as of February 28, 1997 and February 29,
1996 and the consolidated statements of income, retained earnings and cash flows
for each of the three years in the period ended February 28, 1997 incorporated
by reference into this Prospectus, have been incorporated herein in reliance on
the report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys' fees) incurred by
them as a result of suits brought against them in their capacity as a director
or officer, if they acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful; provided, that no indemnification may be made
against expenses in respect of any claim, issue or matter as to which they shall
have been adjudged to be liable to the corporation, unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, they are fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper. Any such
indemnification may be made by the corporation only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article Ninth of the Company's Certificate of
Incorporation entitles officers, directors and controlling persons of the
Company to indemnification to the full extent permitted by Section 145 of the
DGCL, as the same may be supplemented or amended from time to time.
Article Ninth of the Company's Certificate of Incorporation provides that
no director shall have any personal liability to the Company or its stockholders
for any monetary damages for breach of fiduciary duty as a director, provided
that such provision does not limit or eliminate the liability of any director
(i) for breach of such director's duty or loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL (involving certain unlawful dividends or stock repurchases) or (iv) for
any transaction from which such director derived an improper personal benefit.
The provisions of such article do not limit or eliminate the liability of any
director for any act or omission occurring prior to the effective time of such
amendment.
Reference is made to Section 8 of the Registration Rights Agreement
included in Exhibit 4.3 hereto which provides certain indemnification rights to
the directors and officers of the Company.
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NO. DESCRIPTION
4.1 Indenture between Mark IV and Marine Midland Bank, as
trustee, relating to the 7 1/2% Senior Subordinated Notes,
dated August 11, 1997 (incorporated by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K dated
August 11, 1997).
4.2 Form of Exchange Note for Mark IV (incorporated by
reference to Exhibit 4.1 to the Company's Current Report
on Form 8-K dated August 11, 1997).
4.3* Registration Rights Agreement between Mark IV Industries,
Inc. and Bear, Stearns & Co. Inc., as initial purchasers,
dated August 11, 1997.
5.1* Opinion of Stroock & Stroock & Lavan LLP as to the legality
of the Exchange Notes to be issued by Mark IV Industries,
Inc.
12.1* Statement Regarding Computation of Ratios of Earnings
to Fixed Charges.
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Stroock & Stroock & Lavan LLP (included in
Exhibit 5.1).
24* Power of Attorney of certain officers and directors of
Mark IV Industries, Inc. (included on page II-4 of this
Registration Statement).
25.1* Form T-1 Statement of Eligibility of Marine Midland Bank to
act as Trustee under the Indenture.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Letter to Nominees.
99.4* Form of Letter to Clients.
99.5* Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
- -----------------
* Filed herewith
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) 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.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus 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.
(c) The undersigned registrant hereby undertakes that insofar
as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, 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.
(d) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, 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 the registration statement through the date of
responding to the request.
(e) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Amherst, State of New
York, on September 19, 1997.
MARK IV INDUSTRIES, INC.
By /S/ WILLIAM P. MONTAGUE
William P. Montague
President
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Sal H. Alfiero, Clement R. Arrison, William P.
Montague, Gerald S. Lippes, John J. Byrne and Richard L. Grenolds, and each of
them, his true and lawful attorneys-in-fact and agents with full power and
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) of and supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents and each of them full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, to all intents and purposes and as fully as they might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacity and on the dates indicated.
SIGNATURE Title Date
/S/ SAL H. ALFIERO Chairman of the Board September 19, 1997
Sal H. Alfiero and Chief Executive Officer
/S/ WILLIAM P. MONTAGUE President and Chief September 19, 1997
William P. Montague Operating Officer and
Director
/S/ GERALD S. LIPPES Secretary and Director September 19, 1997
Gerald S. Lippes
/S/ JOHN J. BYRNE Vice President and Chief September 19, 1997
John J. Byrne Financial Officer
/S/ RICHARD L. GRENOLDS Vice President and Chief September 19, 1997
Richard L. Grenolds Accounting Officer
/S/ CLEMENT R. ARRISON Director September 19, 1997
Clement R. Arrison
Director September __, 1997
Joseph G. Donohoo
Director September __, 1997
Herbert Roth, Jr.
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Indenture between Mark IV and Marine Midland Bank, as
trustee, relating to the
7 1/2% Senior Subordinated Notes, dated August 11, 1997
(incorporated by
reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K dated
August 11, 1997)
4.2 Form of Exchange Note for Mark IV (incorporated by
reference to Exhibit 4.1
to the Company's Current Report on Form 8-K dated August
11, 1997)
4.3* Registration Rights Agreement between Mark IV Industries,
Inc. and
Bear, Stearns & Co. Inc., as initial purchasers, dated
August 11, 1997
5.1* Opinion of Stroock & Stroock & Lavan LLP as to the legality
of the
Exchange Notes to be issued by Mark IV Industries, Inc.
12.1* Statement Regarding Computation of Ratios of Earnings to
Fixed Charges
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Stroock & Stroock & Lavan LLP (included in
Exhibit 5.1).
24* Power of Attorney of certain officers and directors of
Mark IV Industries, Inc.
(included on page II-4 of this Registration Statement)
25.1* Form T-1 Statement of Eligibility of Marine Midland Bank to
act as Trustee under the Indenture
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Letter to Nominees
99.4* Form of Letter to Clients.
99.5* Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9
- -----------------
* Filed herewith
Exhibit 4.3
MARK IV INDUSTRIES, INC.
$250,000,000 of
7 1/2% Senior Subordinated Notes due 2007
Registration Rights Agreement
August 11, 1997
BEAR, STEARNS & CO. INC.
<PAGE>
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of August 11, 1997 by and between Mark IV Industries, Inc., a Delaware
corporation (the "COMPANY"), and Bear, Stearns & Co. Inc. (the "INITIAL
PURCHASER"), which has agreed to purchase the Company's 7 1/2% Senior
Subordinated Notes due 2007 (the "SERIES A NOTES") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated August 6,
1997 (the "PURCHASE AGREEMENT"), by and between the Company and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Series A
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Purchase Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchaser set forth in Section 8 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
ADDITIONAL INTEREST: As defined in Section 5.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the Act of the Series
B Notes pursuant to a Registration Statement pursuant to which the Company
offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser proposes to
sell the Series A Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, and to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Act ("ACCREDITED INSTITUTIONS").
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of August 11, 1997, by and between the
Company and Marine Midland Bank, as trustee (the "TRUSTEE"), pursuant to which
the Notes are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
ISSUE DATE: The date of this Agreement.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Series A Notes and the Series B Notes.
PERSON: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as amended
or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
REGISTRATION STATEMENT: Any registration statement of the Company relating
to (a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SERIES B NOTES: The Company's new 7 1/2% Senior Subordinated Notes due 2007
to be issued pursuant to the Indenture in the Exchange Offer.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77a-77b) as in
effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (i) Each Series A Senior Note, until the
earliest to occur of (a) the date on which such Series A Senior Note is
exchanged in the Exchange Offer for a Series B Senior Note that is entitled to
be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Series A
Senior Note has been effectively registered under the Act and disposed of in
accordance with a Shelf Registration Statement and (c) the date on which such
Series A Senior Note is distributed to the public pursuant to Rule 144 under the
Act; and (ii) each Series B Senior Note issued pursuant to the Exchange Offer to
a Broker- Dealer, until the date on which such Series B Senior Note is freely
tradeable such that it may be sold by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the benefits
of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "HOLDER") whenever such Person
is the record owner of Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), the Company shall (i) cause to be filed with the Commission
as soon as practicable after the Issue Date, but in no event later than 45
calendar days after the Issue Date, a Registration Statement under the Act
relating to the Series B Notes and the Exchange Offer, (ii) use its best efforts
to cause such Registration Statement to become effective at the earliest
possible time, but in no event later than 120 calendar days after the Issue
Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection with the
registration and qualification of the Series B Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Series B Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no
event shall such period be less than 30 calendar days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer expires, but in no event later than 150 calendar days after the
Issue Date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series A Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market- making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Series A Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Series B Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Series B Notes issued in exchange for
Series A Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the date on which the Exchange Offer Registration
Statement is declared effective or until such earlier date on which all such
Series B Notes are freely tradeable.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker- Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) because of any change in law or in currently
prevailing interpretations of the staff of the Commission (the "STAFF"), the
Company is not permitted to effect the Exchange Offer (after the procedures set
forth in Section 6(a) below have been complied with), (ii) the Company has not
exchanged Series B Notes for all Series A Notes validly tendered in accordance
with the terms of the Exchange Offer on or prior to the 150th calendar day after
the Issue Date, (iii) any Holder of Transfer Restricted Securities shall notify
the Company within 20 business days of the Consummation of the Exchange Offer
(A) that such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such Holder may not resell the
Series B Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) that such Holder is a Broker-Dealer and holds Series A Notes
acquired directly from the Company or one of its affiliates, or (iv) in the case
of any holder that participates in the Exchange Offer, such holder does not
receive Series B Notes 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 as an affiliate of the Company within the meaning of
the Act or to the holder having an arrangement with any person to participate in
a distribution (within the meaning of the Securities Act), then in each case the
Company shall promptly deliver to the holders and the Trustee written notice
thereof and at its sole expense:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT") on or prior to the earliest to occur of (1) the 45th calendar
day after the date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement, (2) the 45th calendar
day after the date on which the Company receives notice from a Holder of
Transfer Restricted Securities as contemplated by clause (iii) above, and
(3) the 120th day after the Issue Date (such earliest date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof;
(y) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 75th
calendar day after the Shelf Filing Deadline; and
(z) use its best efforts to keep effective the Shelf
Registration Statement until the earlier of two years after the Issue Date
or such time as all of the applicable Notes or Exchange Notes have been
sold thereunder.
The Company shall use its best efforts to keep such Shelf Registration
Statement supplemented and amended as required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it is available for
resales of Series A Notes by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years following the Issue Date or until such earlier date on which all
such Series A Notes are freely tradeable. Notwithstanding anything to the
contrary herein, the Company shall not be required to file more than one Shelf
Registration Statement hereunder.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Additional Interest pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
If (i) (a) neither the Exchange Offer Registration Statement nor Shelf
Registration Statement is filed with the Commission on or prior to the 45th
calendar day after Issue Date or (b) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the Company is required to
file a Shelf Registration Statement and such Shelf Registration Statement is not
filed on or prior to the date required by Section 4(a)(x) of this Agreement,
then commencing on the day after either such required filing date, as liquidated
damages, additional interest (the "Additional Interest") shall accrue on the
principal amount of the Notes at a rate of .50% per annum; or
(ii) (a) neither the Exchange Offer Registration Statement nor a Shelf
Registration Statement is declared effective by the Commission on or prior to
the 75th calendar day after the applicable required filing date or (b)
notwithstanding that the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not declared effective by the Commission on or
prior to the 75th calendar day after the date such Shelf Registration Statement
was required to be filed, then, commencing on the 76th calendar day after the
applicable required filing date, Additional Interest shall accrue on the
principal amount of the Series A Notes at a rate of 0.50% per annum; or
(iii) (a) the Company has not exchanged Series B Notes for all Series A
Notes validly tendered in accordance with the terms of the Exchange Offer on or
prior to the 150th calendar day after the Issue Date or (b) if applicable, the
Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the second
anniversary of its effective date (other than after such time as all Series A
Notes have been disposed of thereunder), then Additional Interest shall accrue
on the principal amount of the Series A Notes at a rate of 0.50% per annum
commencing on (x) the 151st calendar day after such Issue Date, in the case of
(a) above or (y) the day such Shelf Registration Statement ceases to be
effective in the case of (b) above;
PROVIDED, HOWEVER, that the Additional Interest rate on the Series A Notes
may not exceed in the aggregate 0.50% per annum; PROVIDED FURTHER, HOWEVER, that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Notes for all Series A Notes tendered (in the case of
clause (iii) (a) above) or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (iii) (b)
above), Additional Interest on the Series A Notes as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) above will be payable in cash on March 1 and September 1 of each year to
the holders of record on the preceding February 15 or August 15, respectively.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the Exchange
Offer, the Company shall comply with all of the provisions of Section 6(c)
below, shall use its best efforts to effect such exchange to permit the sale of
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and shall comply with all of the following
provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is
acquiring the Series B Notes in its ordinary course of business and
(C) it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the Exchange
Offer. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations
for the Exchange Offer. Each Holder hereby acknowledges and agrees
that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in
the Exchange Offer (1) could not under Commission policy as in effect
on the date of this Agreement rely on the position of the Commission
enunciated in MORGAN STANLEY AND CO., INC. (available June 5, 1991)
and EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired by such Holder directly from the
Company.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange
Offer in reliance on the position of the Commission enunciated in
EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), and
MORGAN STANLEY AND CO., INC. (available June 5, 1991) and (B)
including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Series
B Notes to be received in the Exchange Offer and that, to the best of
the Company's information and belief, each Holder participating in
the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf Registration
Statement, the Company shall comply with all the provisions of Section 6(c)
below and shall use its best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto the
Company will, in accordance with Section 4(a)(x), prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder, financial
statements of its subsidiaries) for the period specified in Section 3 or 4
of this Agreement, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not to
be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference in such Registration
Statement), which documents will be subject to the review of such Holders
and underwriter(s), if any, for a period of at least five business days,
and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) concurrently with the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's representatives available for
discussion of such document and other customary due diligence matters, and
include such information in such document as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) upon request, make available at reasonable times for
inspection by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney or
accountant retained by such selling Holders or any of the underwriter(s),
all material financial and other records, pertinent corporate documents
and properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies,
if so requested by the Holders of a majority in aggregate principal amount
of Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) enter into such customary agreements (including an
underwriting agreement), and make such representations and warranties, and
take all such other actions in connection therewith in order to expedite
or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement, all
to such extent as may be reasonably requested by the Initial Purchaser or
by any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, the Company shall:
(A) furnish to the Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the Consummation of
the Exchange Offer and, if applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by the
Chairman or the President and a Vice President of the Company,
dated the date of its delivery, to the effect that the
conditions set forth in subsection (d) of Section 8 of the
Purchase Agreement have been satisfied, that the representations
and warranties of the Company set forth in Section 5 of the
Purchase Agreement are accurate and certifying as to such other
matters as such parties may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company covering the matters set forth in paragraphs (b) and (c)
of Section 8 of the Purchase Agreement and such other matters as
such parties may reasonably request, and in any event including
a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public accountants
for the Company, the Initial Purchaser's representatives and the
Initial Purchaser's counsel in connection with the preparation
of such Registration Statement and the related Prospectus and
have considered the matters required to be stated therein and
the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective, and, in the
case of the Exchange Offer Registration Statement, as of the
date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer, as
of the date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state further
that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other
financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness
of the Shelf Registration Statement, as the case may be, from
the Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 8(e) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the
Company shall so advise the Initial Purchaser and the underwriter(s), if
any, and each selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is
not now so subject;
(xiii) shall issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes, having
an aggregate principal amount equal to the aggregate principal amount of
Series A Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Series B Notes to be
registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Series A Notes held by
such Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
consummation of any sale of Transfer Restricted Securities made by such
underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates for
the Transfer Restricted Securities which are in a form eligible for
deposit with the Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that
is required to be retained in accordance with the rules and regulations of
the NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies
or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month
of the Company's first fiscal quarter commencing after the effective date
of the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Series A Notes
or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security that
such Holder will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement upon receipt of any
notice from the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, or, in the case of any Shelf Registration, if in
the good faith judgment of the Board of Directors of the Company, such
disposition would adversely affect a material proposed or pending acquisition,
merger or other similar corporate event to which the Company is or expects to be
a party, in each case, until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or
until it is advised in writing (the "ADVICE") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice to and including the date
when each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing Notes on a national securities exchange or an automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any Person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder and each
person, if any, who controls any Holder within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act (each an "INDEMNIFIED HOLDER") against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus, or in any supplement thereto or amendment thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Indemnified Holder expressly for
use therein; and PROVIDED, FURTHER, that the Company shall not be liable to the
Indemnified Holder (or any person controlling the Indemnified Holder) under the
indemnity agreement in this Section 8 with respect to any Registration Statement
or Prospectus, to the extent that any such loss, liability, claim, damage or
expense of the Indemnified Holder (or any person controlling the Indemnified
Holder) results from the fact such Indemnified Holder sold Notes to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Registration Statement (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) if the Company has previously
furnished copies thereof to the Indemnified Holder and the loss, liability,
claim, damage or expense of the Indemnified Holder (or such person controlling
the Indemnified Holder) results from an untrue statement, alleged untrue
statement, omission or alleged omission of a material fact contained in the
preliminary prospectus as amended or supplemented. This indemnity agreement will
be in addition to any liability which the Company may otherwise have, including
without limitation, under this Agreement.
(b) The Indemnified Holder agrees to indemnify and hold harmless the
Company, each director of the Company, each of the officers of the Company who
shall have signed any Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Indemnified Holder
expressly for use therein; PROVIDED, HOWEVER, that in no case shall the
Indemnified Holder be liable or responsible for any amount in excess of the
amount such Indemnified Holder paid for its Notes and the amount received by
such Holder upon the sale thereof. This indemnity will be in addition to any
liability which the Indemnified Holder may otherwise have, including, without
limitation, under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent that it has been prejudiced
in any material respect by such failure). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying party or parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses of counsel shall be borne by the indemnifying
parties. The indemnifying party under subsection (a) or (b) above shall only be
liable for the legal expenses of one counsel for all indemnified parties in each
jurisdiction in which any claim or action is brought; PROVIDED, HOWEVER, that
the indemnifying party shall be liable for separate counsel for any indemnified
party in a jurisdiction, if counsel to the indemnified parties shall have
reasonably concluded that there may be defenses available to such indemnified
party that are different from or additional to those available to one or more of
the other indemnified parties and that separate counsel for such indemnified
party is prudent under the circumstances. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
PROVIDED, HOWEVER, that such written consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 is for any reason held to be
unavailable, the Company and the Indemnified Holder shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company from persons,
other than the Indemnified Holder, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act) to which the Company and the
Indemnified Holder may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the Indemnified Holder
from the offering of the Notes or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 8, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company and the Indemnified Holder
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Indemnified Holder shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of Notes (net of discounts and commissions but before
deducting expenses) received by the Company and (y) the difference between the
amount such Indemnified Holder paid for its Notes and the amount received by
such Holder upon the sale thereof. The relative fault of the Company and of the
Indemnified Holder shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Indemnified Holder agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by PRO RATA allocation or by any other method of allocation which
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall the
Indemnified Holder be required to contribute any amount in excess of the amount
by which the difference between the amount such Indemnified Holder paid for its
Notes and the amount received by such Holder upon the sale thereof exceeds the
amount of any damages which the Indemnified Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls the Indemnified Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, shall have the same rights to contribution as
the Indemnified Holder, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
of the officers of the Company who shall have signed any Registration Statement
and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its written
consent; PROVIDED, HOWEVER, that such written consent was not unreasonably
withheld.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements. Notwithstanding anything to the contrary herein, the
Company shall not be required to undertake more than one Underwritten Offering
hereunder.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company agrees that monetary damages (including the
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person, which rights remain exercisable at the date hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any action,
or permit any change to occur, with respect to the Notes that would materially
and adversely affect the ability of the Holders to Consummate any Exchange
Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to a Holder,
shall be mailed, physically delivered, telefaxed, telexed or telegraphed, and
confirmed in writing, to such Holder at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and if sent to the Company, shall be mailed, physically delivered,
telefaxed, telexed or telegraphed, and confirmed in writing, to Mark IV
Industries, Inc. One Towne Centre, 501 John James Audubon Parkway, Amherst, New
York 14226-0810 Attention: Chief Financial Officer, telecopy number: (716)
689-6098, with a copy to Lippes, Silverstein, Mathias & Wexler LLP, 700 Guaranty
Building, 28 Church Street, Buffalo, New York 14202-3950, Attention: Gerald S.
Lippes, Esq., telecopy number: (716) 853-5199, and with a copy to Stroock &
Stroock & Lavan LLP, 180 Maiden Lane, New York, New York 10038-4982, Attention:
David L. Finkelman, Esq., telecopy number: (212) 806-6006; PROVIDED, HOWEVER,
that any notice pursuant to Section 12 shall be mailed, delivered or telexed,
telegraphed or telecopied and confirmed in writing.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telefaxed; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Signature page to follow]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MARK IV INDUSTRIES, INC.
By:
Name:
Title:
Accepted and agreed to as of the date first above written:
By: BEAR, STEARNS & CO. INC.
By:
Name:
Title:
EXHIBIT 5.1
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
September __, 1997
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
Re: Mark IV Industries, Inc.
Registration Statement on Form S-4 (File No. 333-____)
Ladies and Gentlemen:
We have acted as special counsel to Mark IV Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), of the above-referenced
Registration Statement on Form S-4, (the "Registration Statement"), relating to
the proposed issuance by the Company of $250,000,000 aggregate liquidation
amount of the Company's 7 1/2% Senior Subordinated Notes due 2007 (the "Exchange
Notes"), which are being registered under the Securities Act, in exchange (the
"Exchange Offer") for up to $250,000,000 aggregate principal amount of the
Company's outstanding 7 1/2% Senior Subordinated Notes due 2007 (the "Private
Notes"). The Private Notes were issued under, and the Exchange Notes are to be
issued under, the Indenture dated August 11, 1997, among the Company and Marine
Midland Bank as Trustee.
As such counsel, we have examined originals or copies of (i) the Certificate of
Incorporation and By-Laws of the Company, each as amended to date, (ii) the
Indenture, (iii) the Registration Rights Agreement dated as of August 11, 1997
(the "Registration Rights Agreement") among the Company and the Initial
Purchaser named therein and (iv) the Registration Statement. We have also
examined original, reproduced or certified copies of all such records of the
Company, such other agreements and such certificates of officers and
representatives of the Company and others, and such statutes and authorities, as
we have deemed relevant and necessary to form the basis of the opinions
hereinafter expressed. In such examinations, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to original documents of the copies of documents supplied to
us as copies thereof. As to various questions of fact material to the opinions
hereinafter expressed, we have relied on representations, statements and
certificates of officers and representatives of the Company and others.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not purport to be experts on, or to
express any opinion herein concerning, any laws other than the laws of the State
of New York, the federal laws of the United States of America and the Delaware
General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Exchange Notes have been duly and validly authorized and, when duly
executed by the proper officers of the Company, duly authenticated by the
Trustee and issued by the Company in accordance with the terms of the Indenture
against surrender and cancellation of a like aggregate principal amount of
Private Notes pursuant to the Exchange Offer as contemplated in the Registration
Rights Agreement, will constitute the legal, valid and binding obligations of
the Company in accordance with their terms and the terms of the Indenture,
subject to the effect of applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of creditors
generally and court decisions with respect thereto, provided that we express no
opinion with respect to the application of equitable principles or remedies in
any proceeding, whether at law or in equity.
We consent to being named in the Registration Statement and related
prospectus as counsel who are passing upon the legality of the Exchange Notes
for the Company and to the reference to our name under the caption "Legal
Matters" in such prospectus. We also consent to the filing of this opinion as an
exhibit to the Registration Statement or any amendment thereto. In giving such
consents, we do not admit hereby that we come within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan LLP
STROOCK & STROOCK & LAVAN LLP
EXHIBIT 12.1
MARK IV INDUSTRIES, INC.
STATEMENT REGARDING COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES(1)
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
(UNAUDITED)
YEAR ENDED LAST DAY OF FEBRUARY THREE-MONTHS ENDED
MAY 31,
1993 1994 1995 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before provision for income taxes $42,300 $61,000 $89,200 $135,700 $164,200 $44,800 $49,300
Fixed charges, before capitalized interest 48,033 46,874 50,448 57,197 63,809 16,004 15,348
Amortization of capitalized interest 133 210 247 265 335 84 131
-------- --------- -------- -------- -------- -------- -------
Earnings as adjusted $90,466 $108,084 $139,895 $193,162 $228,344 $60,888 $64,779
======== ========= ======== ======== ======== ======== =======
Fixed Charges:
Interest expense, net $44,400 $43,100 $46,300 $52,600 $59,000 $14,900 $14,300
Investment income earned (2) 300 400 284 396 418 105 70
------- -------- ------- ------- ------- -------- --------
Total interest 44,700 43,500 46,584 52,996 59,418 15,005 14,370
Amortization of debt expense 1,383 1,424 1,659 1,726 1,871 370 468
Interest portion of rent expense 1,950 1,950 2,205 2,475 2,520 630 510
------- -------- -------- ------- ------- -------- ---------
Fixed Charges, before
capitalized interest 48,033 46,874 50,448 57,197 63,809 16,005 15,348
Capitalized interest 632 195 335 703 1,901 176 475
------- -------- -------- ------- ------- ------- --------
Fixed Charges $48,665 $47,069 $50,783 $57,900 $65,710 $16,181 $15,823
======== ======== ======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 1.86x 2.30x 2.75x 3.34x 3.48x 3.76x 4.09x
- ---------------
(1) For the purpose of calculating the ratio of earnings to fixed
charges, (i) earnings consist of income from continuing
operations before income taxes and the restructuring charge,
plus fixed charges and (ii) fixed charges consist of interest
expense incurred, capitalized interest, amortization of debt
expense and 15% of rental payments under operating leases (an
amount estimated by management to be the interest component of
such rentals). If the restructuring charge were included in
the ratio determination for fiscal 1997, the actual ratio would
be 1.76x.
(2) Represents investment income presented with interest expense, which
must be eliminated for purposes of calculating the ratios.
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-4 of
our report dated March 18, 1997, on our audits of the consolidated financial
statements of Mark IV Industries, Inc. and subsidiaries and the incorporation by
reference of our report on the financial statement schedule, which report dated
March 18, 1997, is included in the Company's Annual Report on Form 10-K, as
amended on Form 10-K/A. We also consent to the reference to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Rochester, New York
September 19, 1997
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
----------------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its character)
New York 16-1057879
(Jurisdiction of (I.R.S. Employer
incorporation or Identification No.)
organization if not a
U.S. national bank)
140 Broadway, New York, NY 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal
executive offices)
Charles E. Bauer
Vice President
140 Broadway
New York, New York 10005-1180
(Name, address and telephone number of agent for service)
MARK IV INDUSTRIES, INC.
(Exact name of obligor as specified in its character)
Delaware 23-1733979
(State or other (I.R.S. Employer
jurisdiction Identification No.)
of incorporation or
organization
501 John James Audubon Parkway 10005-1180
Amherst, New York (Zip Code)
(716) 689-4972
(Address of principal executive offices)
7 1/2% SENIOR SUBORDINATED NOTES DUE 2007, SERIES B
(Title of Indenture Securities)
<PAGE>
General
Item 1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. AFFILIATES WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
<PAGE>
Item 16. LIST OF EXHIBITS
EXHIBIT
TIA(i) * - Copy of the Organization
Certificate of Marine
Midland Bank.
TIA (ii) * - Certificate of the State
of New York Banking
Department dated
December 31, 1993 as to
the authority of Marine
Midland Bank to
commence business.
TIA (iii) - Not applicable
TIA(iv) * - Copy of existing By-Laws
of Marine Midland Bank
as adopted on January
20, 1994.
TIA(v) - Not applicable.
TIA(vi) * - Consent of Marine
Midland Bank required
by Section 321(b)of the
Trust Indenture Act of 1939.
TIA(vii) - Copy of the latest
report of condition of
the trustee (June 30,
1997), published
pursuant to law or the
requirement of its
supervisory or
examining authority
TIA(vii) - Not applicable
TIA(ix) - Not applicable
* Exhibits previously filed with the Securities and Exchange
Commission with Registration No. 33-53693 and incorporated herein by
reference thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Marine Midland Bank, a banking corporation and trust company organized
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York on the 17th day of
September, 1997.
MARINE MIDLAND BANK
By: /S/ METIN CANER
Metin Caner
Vice President
<PAGE>
EXHIBIT TIA (VII)
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 1999
This financial information has not
been reviewed, or confirmed for accuracy
or relevance, by the Federal Reserve System.
Please refer to page 1, / 1 /
Table of Contents, for
the required disclosure
of estimated burden.
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES - FFIEC 031
REPORT AT THE CLOSE OF (950630)
BUSINESS JUNE 30, 1997 ----------
(RCRI 9999)
This report is required by This report form is to be filed
law; 12 U.S.C. ss.324 (State by banks with branches and
member banks); 12 U.S.C. consolidated subsidiaries in
ss.1817 (State nonmember banks); U.S. territories, foreign
and 12 U.S.C. ss.161 (National branches, consolidated foreign
banks). subsidiaries, or International
Banking Facilities.
NOTE: The Reports of The Reports of Condition and
Condition and Income must Income are to be prepared in
be attested to by not less accordance with Federal
than two directors regulatory authority
(trustees) for State instructions. NOTE: These
nonmember banks and three instructions may in some cases
directors for State member differ from generally accepted
and National Banks. accounting principles.
I, GERALD A. RONNING, We, the undersigned directors
EXECUTIVE VP & CONTROLLER (trustees), attest to the
Name and Title of Officer correctness of this Report of
Authorized to Sign Report Condition (including the
of the named bank do hereby supporting schedules) and declare
declare that these Reports that it has been examined by us
of Condition and Income and to the best of our knowledge
(including the supporting and belief has been prepared in
schedules) have been conformance with the instructions
prepared in conformance with issued by the appropriate
the instructions issued by Federal authority and is true and
the appropriate Federal correct.
regulatory authority and are
true to the best of my /S/ JAMES H. CLEAVE
knowledge and belief. Director (Trustee)
/S/ GERALD A. RONNING /S/ BERNARD J. KENNEDY
_________________________________________ __________________________
Signature of Officer Authorized to Report Director (Trustee)
7/25/97 /S/ MALCOLM BURNETT
___________________ __________________________
Date of Signature Director (Trustee)
FOR BANKS SUBMITTING HARD COPY
REPORT FORMS:
STATE MEMBER BANK: Return NATIONAL BANKS: Return the
the original and one copy to original only in the SPECIAL
the appropriate Federal RETURN ADDRESS ENVELOPE
Reserve District Bank. provided. If express mail is used in
lieu of the special return
STATE NONMEMBER BANKS: address envelope, return the
Return the original only in original only to the FDIC, c/o
the SPECIAL RETURN ADDRESS Quality Data Systems, 2127
ENVELOPE PROVIDED. If Espey Court, Suite 204, Crofton,
express mail is used in lieu MD 21114.
of the special return address
envelope, return the
original only to the FDIC,
c/o Quality Data Systems,
2127 Espey Court, Suite 204,
Crofton, MD 21114.
FDIC Certificate 0 0 5 8 9
Number -------------
(RCRI 9030)
<PAGE>
NOTICE
This form is intended to assist institutions with state
publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business June 30, 1997
ASSETS
Thousands
of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances
Currency and coin..................... $ 1,044,050
Interest-bearing balances 2,065,434
Held-to-maturity securities 0
Available-for-sale securities 3,576,879
Federal funds sold and securities
purchased under agreements to resell 3,311,653
Loans and lease financing receivables:
Loans and leases net of unearned income 20,801,413
LESS: Allowance for loan and lease losses 429,338
LESS: Allocated transfer risk reserve 0
Loans and lease, net of unearned
income, allowance, and reserve 20,372,075
Trading assets........................ 982,806
Premises and fixed assets
(including capitalized leases) 221,952
Other real estate owned.................... 8,293
Investments in unconsolidated
subsidiaries and associated properties 0
Customers' liability to this bank on
acceptances outstanding 26,490
Intangible assets.......................... 495,034
Other assets............................... 530,288
Total assets............................... 32,634,954
LIABILITIES
Deposits:
In domestic offices................... 20,705,098
Noninterest-bearing................... 4,382,353
Interest-bearing...................... 16,322,745
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs................ 3,458,100
Noninterest-bearing................... 0
Interest-bearing...................... 3,458,100
Federal funds sold and securities
purchased under agreements to resell 3,784,599
Demand notes issued to the U.S.
Treasury............................... 300,000
Trading Liabilities........................ 169,194
Other borrowed money:
With a remaining maturity of one
year or less......................... 878,716
With a remaining maturity of more
than one year through three years.... 133,670
With a remaining maturity of more
than three years..................... 112,907
Bank's liability on acceptances executed
and outstanding..................... 26,490
Subordinated notes and debentures........ 497,648
Other liabilities......................... 336,900
Limited-life preferred stock and related
surplus................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related
surplus................................. 0
Common Stock.............................. 205,000
Surplus................................... 1,983,530
Undivided profits and capital reserves.... 38,878
Net unrealized holding gains (losses) on
available-for-sale securities........... 4,224
Cumulative foreign currency translation
adjustments............................. 0
Total equity capital..................... 2,231,632
Total liabilities, limited-life preferred
stock, and equity capital............... 32,634,954
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
7 1/2% NOTES DUE 2007
OF
MARK IV INDUSTRIES INC.
PURSUANT TO THE PROSPECTUS DATED , 1997
===============================================================================
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1997 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS EXTENDED,
IN WHICH CASE THE TERM "EXPIRATION DATE" SHALL MEAN THE LATEST DATE AND TIME TO
WHICH THE EXCHANGE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN AT ANY TIME
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
===============================================================================
THE EXCHANGE AGENT IS:
MARINE MIDLAND BANK
BY REGISTERED OR CERTIFIED MAIL: By Hand or Overnight Delivery:
Marine Midland Bank Marine Midland Bank
140 Broadway 140 Broadway
New York, New York 10005 New York, New York 10005
Attn: Operations Department Attn: Operations Department
BY FACSIMILE:
(For Eligible Institutions Only)
Marine Midland Bank
CONFIRM BY FAX
Attn: Operations Department
(212)658-2292
CONFIRM BY TELEPHONE:
(212)658-5931
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE
NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD
BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
The undersigned acknowledges receipt of the Prospectus dated , 1997 (the
"Prospectus"), of Mark IV Industries, Inc., a Delaware corporation (the
"Company"), and this Letter of Transmittal (the "Letter of Transmittal"), which
together with the Prospectus constitutes the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount of its 7 1/2 % Notes due 2007 (the
"Exchange Notes") for each $1,000 principal amount of its 7 1/2 % Notes due 2007
(the "Private Notes"). Recipients of the Prospectus should read the requirements
described in such Prospectus with respect to eligibility to participate in the
Exchange Offer. Capitalized terms used but not defined herein have the meaning
given to them in the Prospectus.
The undersigned hereby tenders the Private Notes described in the box
entitled "Description of Private Notes" below pursuant to the terms and
conditions described in the Prospectus and this Letter of Transmittal. The
undersigned is the registered owner of all the Private Notes and the undersigned
represents that it has received from each beneficial owner of Private Notes
("Beneficial Owners") a duly completed and executed form of "Instruction to
Registered Holder from Beneficial Owner" accompanying this Letter of
Transmittal, instructing the undersigned to take the action described in this
Letter of Transmittal.
This Letter of Transmittal is to be used only by a holder of Private Notes
(i) if certificates representing Private Notes are to be forwarded herewith or
(ii) if delivery of Private Notes is to be made by book- entry transfer to the
Exchange Agent's account at The Depository Company (the "Depository"), pursuant
to the procedures set forth in the section of the Prospectus entitled "The
Exchange Offer -- Procedures for Tendering." If delivery of the Private Notes is
to be made by book-entry transfer to the account maintained by the Exchange
Agent at the Depository, this Letter of Transmittal need not be manually
executed; PROVIDED, HOWEVER, that tenders of the Private Notes must be effected
in accordance with the procedures mandated by the Depository's Automated Tender
Offer Program and the procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Book-Entry Transfer."
Any beneficial owner whose Private Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such registered holder of Private Notes promptly and
instruct such registered holder of Private Notes to tender on behalf of the
beneficial owner. If such beneficial owner wishes to tender on its own behalf,
such beneficial owner must, prior to completing and executing this Letter of
Transmittal and delivering its Private Notes, either make appropriate
arrangements to register ownership of the Private Notes in such beneficial
owner's name or obtain a properly completed bond power from the registered
holder of Private Notes. The transfer of record ownership may take considerable
time.
In order to properly complete this Letter of Transmittal, a holder of
Private Notes must (i) complete the box entitled "Description of Private Notes,"
(ii) if appropriate, check and complete the boxes relating to book-entry
transfer, guaranteed delivery, Special Issuance Instructions and Special
Delivery Instructions, (iii) sign the Letter of Transmittal by completing the
box entitled "Sign Here" and (iv) complete the Substitute Form W- 9. Each holder
of Private Notes should carefully read the detailed instructions below prior to
completing the Letter of Transmittal.
Holders of Private Notes who desire to tender their Private Notes for
exchange and (i) whose Private Notes are not immediately available, (ii) who
cannot deliver their Private Notes and all other documents required hereby to
the Exchange Agent on or prior to the Expiration Date or (iii) who are unable to
complete the procedure for book-entry transfer on a timely basis, must tender
the Private Notes pursuant to the guaranteed delivery procedures set forth in
the section of the Prospectus entitled "The Exchange Offer -- Guaranteed
Delivery Procedures." See Instruction 2 of the Instructions beginning on page 9
hereof.
Holders of Private Notes who wish to tender their Private Notes for
exchange must, at a minimum, complete columns (1), (2), if applicable (see
footnote 1 below), and (3) in the box below entitled "Description of Private
Notes" and sign the box on page 8 under the words "Sign Here." If only those
columns are completed, such holder of Private Notes will have tendered for
exchange all Private Notes listed in column (3) below. If the holder of Private
Notes wishes to tender for exchange less than all of such Private Notes, column
(4) must be completed in full. In such case, such holder of Private Notes should
refer to Instruction 5 on page 10.
<PAGE>
=============================================================================
DESCRIPTION OF PRIVATE NOTES
- ------------------------------------------------------------------------------
(1) (2) (3) (4)
Name(s) and Principal
Address(es) of Private Note Amount
Registered Holder(s) Number(s)(1) Tendered For
of Private Note(s), (Attach signed Aggregate Exchange
exactly as name(s) List if necessary Principal (only if
appear(s) on Private Amount different
Note Certificate(s) amount from
(Please fill in, if column (3))
blank) (must be in
integral
multiples of
$1,000) (2)
- -------------------------------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Column (2) need not be completed by holders of Private Notes tendering
Private notes for exchange by book-entry transfer. Please check the
appropriate box on the next page and provide the requested information.
(2) Column (4) need not be completed by holders of Private Notes who wish to
tender for exchange the principal amount of Private Notes listed in
Column (3). Completion of column (4) will indicate that the holder of
Private Notes wishes to tender for exchange only the principal amount of
Private Notes indicated in column (4).
===============================================================================
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE ENCLOSED HEREWITH.
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
DEPOSITORY AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS
(AS HEREINAFTER DEFINED) ONLY):
Name of Tendering Institution:____________________________
Account Number:___________________________________________
Transaction Code Number:__________________________________
|_| CHECK HERE IF TENDERED PRIVATE NOTES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY ENCLOSED
HEREWITH AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE
INSTITUTIONS ONLY):
Name of Registered Holder of Private Note(s):
Date of Execution of Notice of Guaranteed Delivery:___________________
Window Ticket Number (if available): ___________________
Name of Institution with Guaranteed Delivery: ___________________
Account Number (if delivered by book-entry transfer):_________________
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:______________________________________________
Address:___________________________________________
<PAGE>
==================================== ====================================
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8) (See Instructions 1, 6, 7 and 8)
To be completed ONLY (i) if To be completed ONLY (i) if
the Exchange Notes issued the Exchange Notes issued
in exchange for Private in exchange for Private
Notes, certificates for Notes, certificates for
Private Notes in a principal Private Notes in a principal
amount not exchanged for amount not exchanged for Exchange
Exchange Notes or Private Notes or Private Notes (if
Notes (if any) not tendered any) not tendered for
for exchange, are to be exchange, are to be mailed
issued in the name of or delivered to someone
someone other than the other than the undersigned,
undersigned or (ii) if or (ii) to the undersigned
Private Notes tendered by at an address other than
book-entry transfer which the address shown below
are not exchanged are to be the undersigned's signature.
returned by credit to an
account maintained at the
Depository.
Issue to: Mail or delivered to:
Name__________________________ Name__________________
(Please Print) (Please Print)
Address_______________________ Address________________
(Include Zip Code) (Include Zip Code)
_________________________________________ __________________________________
(Tax Identification or Social Security No.) (Tax Identification or Social
Security No.)
|_| Credit Private Notes not exchanged and
delivered by book-entry transfer to the
Depository account set forth below:
____________________________________________
(Account Number)
============================================ =================================
If delivery of Private Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at the Depositary, then tenders of
Private Notes must be effected in accordance with the procedures mandated by the
Depository's Automated Tender Offer Program and the procedures set forth in the
Prospectus under the caption "The Exchange Offer -- Book-Entry Transfer."
<PAGE>
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
Pursuant to the offer by Mark IV Industries Inc., a Delaware corporation
(the "Company"), upon the terms and subject to the conditions set forth in the
Prospectus dated , 1997 (the "Prospectus") and this Letter of Transmittal (the
"Letter of Transmittal"), which together with the Prospectus constitutes the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 7 1/2% Notes due 2007 (the "Exchange Notes") for each $1,000 principal
amount of its outstanding 7 1/2% Notes due 2007 (the "Private Notes"), the
undersigned hereby tenders to the Company for exchange the Private Notes.
By executing this Letter of Transmittal and subject to and effective upon
acceptance for exchange of the Private Notes tendered for exchange herewith, the
undersigned (A) acknowledges and agrees that, except as set forth in the
Prospectus under the caption "The Exchange Offer--Termination of Certain
Rights", all of the rights of such undersigned pursuant to that certain
Registration Rights Agreement, dated as of August 11, 1997 between Mark IV
Industries, Inc., and the Initial Purchaser (as defined in the Prospectus), will
have been satisfied and extinguished in all respects and (B) will have
irrevocably sold, assigned, transferred and exchanged, to the Company, all
right, title and interest in, to and under all of the Private Notes tendered for
exchange hereby, and hereby appoints the Exchange Agent as the true and lawful
agent and attorney-in-fact (with full knowledge that the Exchange Agent also
acts as agent of the Company) of such holder of Private Notes with respect to
such Private Notes, with full power of substitution to (i) deliver certificates
representing such Private Notes, or transfer ownership of such Private Notes on
the account books maintained by the Depositary (together, in any such case, with
all accompanying evidences of transfer and authenticity), to the Company, (ii)
present and deliver such Private Notes for transfer on the books of the Company
and (iii) receive all benefits and otherwise exercise all rights and incidents
of beneficial ownership with respect to such Private Notes, all in accordance
with the terms of the Exchange Offer. The power of attorney granted in this
paragraph shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that (i) the undersigned is
the owner; (ii) has a net long position within the meaning of Rule 14e-4 under
the Securities Exchange Act of 1934, as amended ("Rule 14e-4") equal to or
greater than the principal amount of Private Notes tendered hereby; (iii) the
tender of such Private Notes complies with Rule 14e-4 (to the extent that Rule
14e-4 is applicable to such exchange); (iv) the undersigned has full power and
authority to tender, exchange, assign and transfer the Private Notes; and (v)
that when such Private Notes are accepted for exchange by the Company, the
Company will acquire good and marketable title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not subject to any adverse
claims. The undersigned will, upon receipt, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the exchange, assignment and transfer of the Private Notes
tendered for exchange hereby.
The undersigned hereby further represents to the Company that (i) the
Exchange Notes to be acquired by the undersigned in exchange for the Private
Notes tendered hereby and any beneficial owner(s) of such Private Notes in
connection with the Exchange Offer will be acquired by the undersigned and such
beneficial owner(s) in the ordinary course of business of the undersigned, (ii)
the undersigned (if not a broker-dealer referred to in the last sentence of this
paragraph) are not engaging and do not intend to engage in the distribution of
the Exchange Notes, (iii) the undersigned have no arrangement or understanding
with any person to participate in the distribution of the Exchange Notes, (iv)
the undersigned and each beneficial owner acknowledge and agree that any person
participating in the Exchange Offer for the purpose of distributing the Exchange
Notes must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction of the
Exchange Notes acquired by such person and cannot rely on the position of the
staff of the Commission set forth in certain no-action letters, (v) the
undersigned and each beneficial owner understand that a secondary resale
transaction described in clause (iv) above should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 of Regulation S-K of the Commission and (vi) neither the
undersigned nor any beneficial owner is an "affiliate" of the Company, as
defined under Rule 405 under the Securities Act. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Private Notes that were acquired as a result of market making activities or
other trading activities, it acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Notes received in respect of such Private Notes pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For purposes of the Exchange Offer, the Company will be deemed to have
accepted for exchange, and to have exchanged, validly tendered Private Notes,
if, as and when the Company gives oral or written notice thereof to the Exchange
Agent. Tenders of Private Notes for exchange may be withdrawn at any time prior
to 5:00 p.m., New York City time, on the Expiration Date. See "The Exchange
Offer -- Withdrawal of Tenders" in the Prospectus. Any Private Notes tendered by
the undersigned and not accepted for exchange will be returned to the
undersigned at the address set forth above unless otherwise indicated in the box
above entitled "Special Delivery Instructions."
The undersigned acknowledges that the Company's acceptance of Private Notes
validly tendered for exchange pursuant to any one of the procedures described in
the section of the Prospectus entitled "The Exchange Offer" and in the
instructions hereto will constitute a binding agreement between the undersigned
and the Company upon the terms and subject to the conditions of the Exchange
Offer.
Unless otherwise indicated in the box entitled "Special Issuance
Instructions," please return any Private Notes not tendered for exchange in the
name(s) of the undersigned. Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any certificates for
Private Notes not tendered or exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s). In the event that both "Special Issuance Instructions" and
"Special Delivery Instructions" are completed, please issue the certificates
representing the Exchange Notes issued in exchange for the Private Notes
accepted for exchange in the name(s) of, and return any Private Notes not
tendered for exchange or not exchanged to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Private Notes from the name of the holder of Private Note(s) thereof if the
Company does not accept for exchange any of the Private Notes so tendered for
exchange or if such transfer would not be in compliance with any transfer
restrictions applicable to such Private Note(s).
IN ORDER TO VALIDLY TENDER PRIVATE NOTES FOR EXCHANGE, HOLDERS OF PRIVATE
NOTES MUST COMPLETE, EXECUTE, AND DELIVER THIS LETTER OF TRANSMITTAL.
Except as stated in the Prospectus, all authority herein conferred or
agreed to be conferred shall survive the death or incapacity of the undersigned,
and any obligation of the undesigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned. Except as
otherwise stated in the Prospectus, this tender for exchange of Private Notes is
irrevocable.
<PAGE>
=============================================================================
SIGN HERE
_____________________________________________
(Signature(s) of Owner(s))
Date: , 1997
Must be signed by the registered holder(s) of Private Notes exactly as name(s)
appear(s) on certificate(s) representing the Private Notes or on a security
position listing or by person(s) authorized to become registered Private Note
holder(s) by certificates and documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, please
provide the following information. (See Instruction 6).
Name(s):_________________________________________
_________________________________________________
(Please Print)
Capacity (full title):____________________________
Address:__________________________________________
__________________________________________________
(Include Zip Code)
Area Code and Telephone No. (__)_______________________________
Tax Identification or Social Security Nos.:____________________
Please complete Substitute Form W-9____________________________
GUARANTEE OF SIGNATURE(S)
(Signature(s) must be guaranteed if required by Instruction 1)
Authorized Signature:__________________________________________
Dated:_________________________________________________________
Name and Title:________________________________________________
(Please Print)
Name of Firm:__________________________________________________
=============================================================================
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by an institution
which is an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, which is a member of one
of the following recognized Signature Guarantee Programs (an "Eligible
Institution"):
a. The Securities Transfer Agents Medallion Program (STAMP)
b. The New York Stock Exchange Medallion Signature Program (MSP)
c. The Stock Exchange Medallion Program (SEMP)
Signatures on this Letter of Transmittal need not be guaranteed (i) if this
Letter of Transmittal is signed by the registered holder(s) of the Private Notes
tendered herewith and such registered holder(s) have not completed the box
entitled "Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (ii) if such Private Notes are
tendered for the account of an Eligible Institution. IN ALL OTHER CASES, ALL
SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND PRIVATE NOTES; GUARANTEED
DELIVERY PROCEDURE. This Letter of Transmittal is to be completed by holders of
Private Notes (i) if certificates are to be forwarded herewith or (ii) if
tenders are to be made pursuant to the procedures for tender by book-entry
transfer or guaranteed delivery set forth in the section of the Prospectus
entitled "The Exchange Offer." Certificates for all physically tendered Private
Notes or any confirmation of a book-entry transfer (a "Book-Entry
Confirmation"), as well as a properly completed and duly executed copy of this
Letter of Transmittal or facsimile hereof, and any other documents required by
this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth on the cover of this Letter of Transmittal prior to 5:00 p.m.,
New York City time, on the Expiration Date. Holders of Private Notes who elect
to tender Private Notes and (i) whose Private Notes are not immediately
available, (ii) who cannot deliver the Private Notes or other required documents
to the Exchange Agent prior to 5:00 p.m., New York City time on the Expiration
Date or (iii) who are unable to complete the procedure for book-entry transfer
on a timely basis, may have such tender effected if: (a) such tender is made by
or through an Eligible Institution; (b) prior to 5:00 p.m., New York time, on
the Expiration Date, the Exchange Agent has received from such Eligible
Institution a properly completed and duly executed Letter of Transmittal (or a
facsimile hereof) and Notice of Guaranteed Delivery (by telegram, telex,
facsimile transmission, mail or hand delivery) setting forth the name and
address of the holder of such Private Notes, the certificate number(s) of such
Private Notes and the principal amount of Private Notes tendered for exchange,
stating that tender is being made thereby and guaranteeing that, within five New
York Stock Exchange trading days after the Expiration Date, the certificates
representing such Private Notes (or a Book-Entry Confirmation), in proper form
for transfer, and any other documents required by this Letter of Transmittal,
will be deposited by such Eligible Institution with the Exchange Agent; and (c)
certificates for all tendered Private Notes, or a Book-Entry Confirmation,
together with a copy of the previously executed Letter of Transmittal (or
facsimile thereof) and any other documents required by this Letter of
Transmittal are received by the Exchange Agent within five New York Stock
Exchange trading days after the Expiration Date.
THE METHOD OF DELIVERY OF PRIVATE NOTES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER OF
PRIVATE NOTES. EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF DELIVERY
IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. NEITHER THIS LETTER OF TRANSMITTAL NOR ANY PRIVATE NOTES SHOULD BE
SENT TO THE COMPANY.
No alternative, conditional or contingent tenders will be accepted. All
tendering holders of Private Notes, by execution of this Letter of Transmittal
(or facsimile hereof, if applicable), waive any right to receive notice of the
acceptance of their Private Notes for exchange.
3. INADEQUATE SPACE. If the space provided in the box entitled "Description
of Private Notes" above is inadequate, the certificate numbers and principal
amounts of the Private Notes being tendered should be listed on a separate
signed schedule affixed hereto.
4. WITHDRAWALS. A tender of Private Notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the Expiration Date by delivery of
written notice of withdrawal to the Exchange Agent at the address set forth on
the cover of this Letter of Transmittal. To be effective, a notice of withdrawal
of Private Notes must (i) specify the name of the person who tendered the
Private Notes to be withdrawn (the "Depositor"), (ii) identify the Private Notes
to be withdrawn (including the certificate number or numbers and aggregate
principal amount of such Private Notes), (iii) be signed by the holder of
Private Notes in the same manner as the original signature on the Letter of
Transmittal by which such Private Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the applicable transfer agent register the transfer of such Private Notes
into the name of the person withdrawing the tender. Withdrawals of tenders of
Private Notes may not be rescinded, and any Private Notes withdrawn will
thereafter be deemed not validly tendered for purposes of the Exchange Offer and
no Exchange Notes will be issued with respect thereto unless the Private Notes
so withdrawn are validly retendered. Properly withdrawn Private Notes may be
retendered by following one of the procedures described in the section of the
Prospectus entitled "The Exchange Offer -- Procedures for Tendering" at any time
prior to 5:00 p.m., New York City time, on the Expiration Date.
5. PARTIAL TENDERS. (Not applicable to holders of Private Notes who tender
Private Notes by book-entry transfer). Tenders of Private Notes will be accepted
only in integral multiples of $1,000 principal amount. If a tender for exchange
is to be made with respect to less than the entire principal amount of any
Private Notes, fill in the principal amount of Private Notes which are tendered
for exchange in column (4) of the box entitled "Description of Private Notes" on
page 3, as more fully described in the footnotes thereto. In case of a partial
tender for exchange, a new certificate, in fully registered form, for the
remainder of the principal amount of the Private Notes, will be sent to the
holders of Private Notes unless otherwise indicated in the appropriate box on
this Letter of Transmittal as promptly as practicable after the expiration or
termination of the Exchange Offer.
6. SIGNATURES ON THIS LETTER OF TRANSMITTAL, POWERS OF ATTORNEY AND
ENDORSEMENTS.
(a) The signature(s) of the holder of Private Notes on this Letter of
Transmittal must correspond with the name(s) as written on the face of the
Private Notes without alternation, enlargement or any change whatsoever.
(b) If tendered Private Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
(c) If any tendered Private Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal and any necessary or required
documents as there are different registrations or certificates.
(d) When this Letter of Transmittal is signed by the holder of the Private
Notes listed and transmitted hereby, no endorsements of Private Notes or
separate powers of attorney are required. If, however, Private Notes not
tendered or not accepted, are to be issued or returned in the name of a person
other than the holder of Private Notes, then the Private Notes transmitted
hereby must be endorsed or accompanied by appropriate powers of attorney in a
form satisfactory to the Company, in either case signed exactly as the name(s)
of the holder of Private Notes appear(s) on the Private Notes. Signatures on
such Private Notes or powers of attorney must be guaranteed by an Eligible
Institution (unless signed by an Eligible Institution).
(e) If this Letter of Transmittal or Private Notes or powers of attorney
are signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to the Company of their authority so to act must be submitted.
(f) If this Letter of Transmittal is signed by a person other than the
registered holder of Private Notes listed, the Private Notes must be endorsed or
accompanied by appropriate powers of attorney, in either case signed exactly as
the name(s) of the registered holder of Private Notes appear(s) on the
certificates. Signatures on such Private Notes or powers of attorney must be
guaranteed by an Eligible Institution (unless signed by an Eligible
Institution).
7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company
will pay all transfer taxes, if any, applicable to the transfer and exchange of
Private Notes pursuant to the Exchange Offer. If, however, issuance of Exchange
Notes is to be made to, or Private Notes not tendered for exchange are to be
issued or returned in the name of, any person other than the holder of Private
Notes, and satisfactory evidence of payment of such taxes or exemptions from
taxes therefrom is not submitted with this Letter of Transmittal, the amount of
any transfer taxes payable on account of the transfer to such person will be
imposed on and payable by the holder of Private Notes tendering Private Notes
for exchange prior to the issuance of the Exchange Notes.
8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes are to
be issued, or if any Private Notes not tendered for exchange are to be issued or
sent to someone other than the holder of Private Notes or to an address other
than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Holders of Private Notes tendering Private Notes by
book-entry transfer may request that Private Notes not accepted be credited to
such account maintained at the Depository as such holder of Private Notes may
designate.
9. IRREGULARITIES. All questions as to the form of documents and the
validity, eligibility (including time of receipt), acceptance and withdrawal of
Private Notes will be determined by the Company, in its sole discretion, whose
determination shall be final and binding. The Company reserves the absolute
right to reject any or all tenders for exchange of any particular Private Notes
that are not in proper form, or the acceptance of which would, in the opinion of
the Company or its counsel, be unlawful. The Company reserves the absolute right
to waive any defect, irregularity or condition of tender for exchange with
regard to any particular Private Notes. The Company's interpretation of the term
of, and conditions to, the Exchange Offer (including the instructions herein)
will be final and binding. Unless waived, any defects or irregularities in
connection with the Exchange Offer must be cured within such time as the Company
shall determine. Neither the Company, the Exchange Agent nor any other person
shall be under any duty to give notice of any defects or irregularities in
Private Notes tendered for exchange, nor shall any of them incur any liability
for failure to give such notice. A tender of Private Notes will not be deemed to
have been made until all defects and irregularities with respect to such tender
have been cured or waived. Any Private Notes received by the Exchange Agent that
are not properly tendered and as to which the defects or irregularities have not
been cured or waived will be returned by the Exchange Agent to the tendering
holders, unless otherwise provided in this Letter of Transmittal, as soon as
practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive,
amend or modify certain of the specified conditions as described under "The
Exchange Offer -- Conditions" in the Prospectus in the case of any Private Notes
tendered (except as otherwise provided in the Prospectus).
11. MUTILATED, LOST, STOLEN OR DESTROYED PRIVATE NOTES. If a holder of
Private Notes desires to tender Private Notes pursuant to the Exchange Offer,
but any of such Private Notes has been mutilated, lost, stolen or destroyed,
such holder of Private Notes should write to or telephone the Trustee at the
address listed below, concerning the procedures for obtaining replacement
certificates for such Private Notes, arranging for indemnification or any other
matter that requires handling by the Trustee:
Marine Midland Bank
140 Broadway
New York, New York 10005
Telephone: (212) 658-5931
Fax: (212) 658-2292
12. REQUESTS FOR INFORMATION OR ADDITIONAL COPIES. Requests for information
or for additional copies of the Prospectus and this Letter of Transmittal may be
directed to the Exchange Agent at the address or telephone number set forth on
the cover of this Letter of Transmittal.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE THEREOF, IF
APPLICABLE) TOGETHER WITH CERTIFICATES, OR CONFIRMATION OF BOOK-ENTRY OR THE
NOTICE OF GUARANTEED DELIVERY, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED
BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
<PAGE>
IMPORTANT TAX INFORMATION
Under certain federal income tax law, a holder of Private Notes whose
tendered Private Notes are accepted for exchange may be subject to backup
withholding unless the holder provides the Company (as payor), through the
Exchange Agent, with either (i) such holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 attached hereto, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder of Private Notes
is awaiting a TIN) and that (A) the holder of Private Notes has not been
notified by the Internal Revenue Service that he or she is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the holder of Private Notes that he or
she is no longer subject to backup withholding; or (ii) an adequate basis for
exemption from backup withholding. If such holder of Private Notes is an
individual, the TIN is such holder's social security number. If the Exchange
Agent is not provided with the correct taxpayer identification number, the
holder of Private Notes may be subject to certain penalties imposed by the
Internal Revenue Service.
Certain holders of Private Notes (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt holders of Private Notes should indicate their
exempt status on Substitute Form W-9. A foreign individual may qualify as an
exempt recipient by submitting to the Exchange Agent a properly completed
Internal Revenue Service Form W-8 (the terms of which the Exchange Agent will
provide upon request) signed under penalty of perjury, attesting to the holder's
exempt status. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 (the "Guidelines") for additional
instructions.
If backup withholding applies, the Company is required to withhold 31% of
any payment made to the holder of Private Notes or other payee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
The holder of Private Notes is required to give the Exchange Agent the TIN
(e.g., social security number or employer identification number) of the record
owner of the Private Notes. If the Private Notes are held in more than one name
or are not held in the name of the actual owner, consult the enclosed Guidelines
for additional guidance regarding which number to report.
<PAGE>
- ------------------------------------------------------------------------------
PAYER'S NAME:____________________________________
- ------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE
Form W-9 YOUR TIN IN THE BOX AT ______________________
Department of RIGHT AND CERTIFY BY Social Security Number
the Treasury SIGNING AND DATING BELOW OR
Internal
Revenue Service ______________________
Payer's Request Employer Identification
for Taxpayer Number
Identification
Number (TIN)
-------------------------------------------------------------
Part 2 - Part 3 -
Certification Under Awaiting
Penalties of Perjury, I TIN
certify that:
(1) The number shown on
this form is my current
taxpayer identification number
(or I am waiting for
a number to be issued
to me) and
(2) I am not subject to backup
withholding either because I
have not been notified
by the Internal Revenue Service (the
"IRS") that I am subject to backup
withholding as a result of a failure to
report all interest or dividends, or
the IRS has notified me that I am no
longer subject to backup withholding.
--------------------------------------------------------------
Certificate instructions - You must cross out item (2) in
Part 2 above if you have been notified by the IRS that you are
subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if after
being notified by the IRS that you are subject to backup
withholding you receive another notification from the IRS
stating that you are no longer subject to backup
withholding, do not cross out item (2).
- -------------------------------------------------------------------------------
SIGNATURE______________________________________________DATE________________
NAME________________________________________________________________________
ADDRESS_____________________________________________________________________
CITY__________________________ STATE_________________ ZIP
CODE______________
- ------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9 FOR ADDITIONAL DETAILS.
<PAGE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECK THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
==============================================================================
PAYOR'S NAME:
- ------------------------------------------------------------------------------
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 (a) 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 (b)
I intend to mail or deliver such an application in the near future. I understand
that if I do not provide a taxpayer identification number with sixty (60) days,
31% of all reportable payments made to me thereafter will be withheld until I
provide such a number.
- -------------------------------------------------------------------
Signature Date
==============================================================================
EXHIBIT 99.3
MARK IV INDUSTRIES, INC.
OFFER TO EXCHANGE
7 1/2% NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING
7 1/2% NOTES DUE 2007
__________ __, 1997
TO SECURITIES DEALERS, COMMERCIAL BANKS,
COMPANY COMPANIES AND OTHER NOMINEES:
Mark IV Industries, Inc. (the "Company") is offering (the "Exchange
Offer"), upon the terms and subject to the conditions of the enclosed
Prospectus, dated ____________ ___, 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), and the enclosed Letter of
Transmittal (the "Letter of Transmittal"), to exchange $1,000 principal amount
of its 7 1/2% Notes due 2007 (the "Exchange Notes"), which exchange has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for each $1,000 principal amount of its outstanding 7 1/2% Notes due 2007 (the
"Private Notes"), of which $250,000,000 aggregate principal amount was issued
and sold on August 11, 1997 in a transaction exempt from registration under the
Securities Act and is outstanding on the date hereof. The Company will accept
for exchange any and all Private Notes properly tendered according to the terms
of the Prospectus and the Letter of Transmittal. Consummation of the Exchange
Offer is subject to certain conditions described in the Prospectus.
WE ARE ASKING YOU TO CONTACT YOUR CLIENTS FOR WHOM YOU HOLD PRIVATE CAPITAL
SECURITIES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE OR WHO HOLD
PRIVATE CAPITAL SECURITIES REGISTERED IN THEIR OWN NAMES.
The Company will not pay any fees or commissions to any broker or dealer or
other person for soliciting tenders of Private Notes 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 Private Notes 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. A form of letter which you may send, as a cover letter to
accompany the Prospectus and related materials, to your
clients for whose accounts you hold Private Notes registered
in your name or the name of your nominee, with space provided
for obtaining the clients' instructions with regard to the
Exchange Offer.
2. The Prospectus.
3. The Letter of Transmittal for your use in connection with the
tender of Private Notes and for the information of your
clients.
4. A form of Notice of Guaranteed Delivery.
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 ____________ __, 1997, unless the Exchange Offer is
extended by the Company. The time at which the Exchange Offer expires is
referred to as the "Expiration Date." Tendered Private Notes may be withdrawn,
subject to the procedures described in the Prospectus, at any time prior to 5:00
P.M. on the Expiration Date.
To participate in the Exchange Offer, certificates for Private Notes, or a
timely confirmation of a book-entry transfer of such Private Notes into the
Exchange Agent's account at the Depository Trust Company, together with a duly
executed and properly completed Letter of Transmittal or facsimile thereof, with
any required signature guarantees, and any other required documents, must be
received by the Exchange Agent by the Expiration Date as indicated in the Letter
of Transmittal and the Prospectus.
If holders of the Private Notes wish to tender, but it is impracticable for
them to forward their Private Notes prior to the Expiration Date or to comply
with the book-entry transfer procedures on a timely basis, a tender may be
effected by following the guaranteed delivery procedures described in the
Prospectus under "The Exchange Offer -- Guaranteed Delivery Procedures" and the
Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
Exchange Agent, Marine Midland Bank of New York, by calling (212) 658-5931
directing your inquiries to the Operations Department.
Very truly yours,
MARK IV INDUSTRIES, INC.
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.
EXHIBIT 99.2
MARK IV INDUSTRIES, INC.
EXCHANGE OFFER
TO HOLDERS OF ITS
7 1/2% NOTES DUE 2007
NOTICE OF GUARANTEED DELIVERY
This form or one substantially equivalent hereto must be used to accept the
Exchange Offer of Mark IV Industries, Inc. (the "Company") made pursuant to the
Prospectus dated _____________ ___, 1997 (the "Prospectus") and the
accompanying Letter of Transmittal, if certificates for the above-referenced
Notes (the "Private Notes") are not immediately available or time will not
permit all required documents to reach the Exchange Agent (as defined below)
prior to the Expiration Date (as defined in the Prospectus) of the Exchange
Offer (as defined below) or if the procedures for book-entry transfer cannot be
completed on a timely basis. Such form may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Exchange Agent.
To: MARINE MIDLAND BANK (THE "EXCHANGE AGENT")
BY REGISTERED OR CERTIFIED MAIL: BY HAND OR OVERNIGHT DELIVERY:
Marine Midland Bank Marine Midland Bank
140 Broadway 140 Broadway
New York, New York 10005 New York, New York 10005
Attn: Operations Department Attn: Operations Department
BY FACSIMILE:
(For Eligible Institutions Only)
Marine Midland Bank
CONFIRM BY FAX:
Attn: Operations Department
(212)658-2292
CONFIRM BY TELEPHONE:
(212)658-5931
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY 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 WILL 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 is hereby acknowledged, the
principal amount of Private Notes set forth below, pursuant to the guaranteed
delivery procedure described in the Prospectus and the Letter of Transmittal.
Signature(s) __________________________ Address________________________
- ------------------------------------- --------------------------------
Name(s)______________________________ Area Code and Tel.No.(s)________
_____________________________________ If Private Notes will be delivered
Please Type or Print by book-entry transfer, check box
and provide account number.
Certificate Nos. (if available)____________ |_|The Depository Trust Company
Account Number:_______________
Principal Amount of Private Notes
Represented by Certificate(s)_______________________
<PAGE>
GUARANTEE
The undersigned, member of a recognized signature guarantee medallion
program within the meaning of Rule 17A(d)-15 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), hereby guarantees (a) that the
above-named person(s) own(s) the above-described securities tendered hereby
within the meaning of Rule 10b-4 under the Exchange Act, (b) that such tender of
the above-described securities complies with Rule 10b-4 and (c) that delivery to
the Exchange Agent of certificates representing the principal amount of Private
Notes tendered hereby, in proper form for transfer, or timely confirmation of
the book-entry transfer of such Private Notes into the Exchange Agent's account
at the Depository Trust Company, in either case with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents, will be received by the
Exchange Agent at one of its addresses set forth above, no later than five New
York Stock Exchange trading days after the date of execution of this Notice of
Guaranteed Delivery.
________________________________________ ________________________________
Name of Firm Authorized Signature
_________________________________________ ________________________________
Address Title
_________________________________________ Please Type or Print
Zip Code
Area Code and Tel. No. __________________ Dated _______________________
EXHIBIT 99.4
MARK IV INDUSTRIES, INC.
OFFER TO EXCHANGE
7 1/2% NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING
7 1/2% NOTES DUE 2007
_________ ___, 1997
TO OUR CLIENTS:
Enclosed for your consideration is a Prospectus, dated September __, 1997
(as the same may be amended or supplemented from time to time, the
"Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"),
relating to the offer (the "Exchange Offer") by Mark IV Industries, Inc. (the
"Company") to exchange $1,000 principal amount of its 7 1/2% Notes due 2007 (the
"Exchange Notes"), which exchange has been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for each $1,000 principal amount of
its outstanding 7 1/2% Notes due 2007 (the "Private Notes"), of which
$250,000,000 aggregate principal amount was issued and sold on August 11, 1997
in a transaction exempt from registration under the Securities Act and is
outstanding on the date hereof. The Company will accept for exchange any and all
Private Notes properly tendered according to the terms of the Prospectus and the
Letter of Transmittal. Consummation of the Exchange Offer is subject to certain
conditions described in the Prospectus.
This material is being forwarded to you as the beneficial owner of Private
Notes carried by us for your account or benefit but not registered in your name.
A tender of such Private Notes may only be made by us as the registered holder
and pursuant to your instructions. Therefore, the Company urges beneficial
owners of Private Notes registered in the name of a broker, dealer, commercial
bank, trust company or other nominee to contact such registered holder promptly
if such beneficial owners wish to tender Private Notes in the Exchange Offer.
Accordingly, we request instructions as to whether you wish us to tender
any or all such Private Notes held by us for your account, pursuant to the terms
and conditions set forth in the enclosed Prospectus and Letter of Transmittal.
However, we urge you to read the Prospectus carefully before instructing us as
to whether or not to tender your Private Notes.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to tender Private Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 P.M.,
New York City Time, on __________, ___,1997, unless the Exchange Offer is
extended by the Company. The time the Exchange Offer expires is referred to as
the "Expiration Date." Tenders of Private Notes may be withdrawn at any time
prior to the Expiration Date.
IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR PRIVATE NOTES, PLEASE SO
INSTRUCT US BY COMPLETING, EXECUTING AND RETURNING TO US THE INSTRUCTION FORM ON
THE REVERSE HEREOF. The accompanying Letter of Transmittal is furnished to you
for your information only and may not be used by you to tender Private Notes
held by us and registered in our name for your account or benefit.
If we do not receive written instructions in accordance with the procedures
presented in the Prospectus and the Letter of Transmittal, we will not tender
any of the Private Notes on your account.
Please carefully review the enclosed material as you consider the Exchange
Offer.
<PAGE>
INSTRUCTIONS
INSTRUCTION TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF
7 1/2% NOTES DUE 2007
OF MARK INDUSTRIES, INC.
The undersigned hereby acknowledges receipt of the Prospectus dated
_________ __, 1997 (the "Prospectus") of Mark IV Industries, Inc., a Delaware
corporation (the "Company") and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), that together constitute the exchange offer by the
Company (the "Exchange Offer"). Capitalized terms used but not defined herein
have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be taken
by you relating to the Exchange Offer with respect to the 7 1/2% Notes due 2007
(the "Private Notes") held by you for the account of the undersigned.
The aggregate face amount of the Private Notes held by you for the account
of the undersigned is (FILL IN AMOUNT):
$ of the Private Notes.
With respect to the Exchange Offer, the undersigned hereby instructs you
(CHECK APPROPRIATE BOX):
|_| To TENDER the following Private Notes held by you for the account of
the undersigned (INSERT PRINCIPAL AMOUNT OF PRIVATE NOTES TO BE TENDERED, IF
ANY):
$ of the Private Notes.
|_| NOT to TENDER any Private Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Private Notes 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 of the Private Notes, including but not limited to the
representations that (i) the undersigned is acquiring the Exchange Notes in the
ordinary course of business of the undersigned, (ii) the undersigned is not
participating, does not intend to participate, and has no arrangement or
understanding with any person to participate, in the distribution of Exchange
Notes, (iii) the undersigned acknowledges that any person participating in the
Exchange Offer for the purpose of distributing the Exchange Notes must comply
with the registration and prospectus delivery requirements of the Securities Act
of 1933, as amended, in connection with any resale transaction of the Exchange
Notes acquired by such person and cannot rely on the position of the Staff of
the Securities and Exchange Commission set forth in certain no-action letters
(See the section of the Prospectus entitled "The Exchange Offer C Resale of the
Exchange Notes"), (iv) the undersigned understands that a secondary resale
transaction described in clause (iii) above should be covered by an effective
registration statement containing the selling securityholder information
required by Item 507 of Regulation S-K of the Commission, (v) the undersigned is
not an "affiliate," as defined in Rule 405 under the Securities Act, of the
Company, (vi) if the undersigned is not a broker-dealer, that it is not
participating in, does not intend to participate in, and has no arrangement or
understanding with any person to participate in, the distribution of Exchange
Notes and (vii) if the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Private Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such Exchange Notes received in respect of such
Private Notes pursuant to the Exchange Offer; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act; (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 Private Notes.
SIGN HERE
Name of Beneficial Owner(s):______________________________________________
Signature(s):_____________________________________________________________
Name(s) (Please Print):___________________________________________________
Address:__________________________________________________________________
Telephone Number:_________________________________________________________
Taxpayer Identification or Social Security Number:________________________
Date:_____________________________________________________________________
EXHIBIT 99.5
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. -- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employee identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the number
to give the payer.
GIVE THE SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF-
1. An individual The individual
2. Two or more individuals (joint The actual owner of the ac
account) count or, if combined funds,
any one of the individuals(1)
3. Husband and wife (joint account) The actual owner of the
account or, if joint funds,
either person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor
is the only contributor, the
minor(1)
6. Account in the name of guardian The ward, minor, or
or committee for a designated incompetent person (3)
ward, minor, or incompetent person
7. a. The usual revocable savings The grantor-trustee
trust account (grantor is also
trustee)
b. So-called trust account that
is not a legal or valid trust
under State law
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF-
8. Sole proprietorship account The Owner(4)
9. A valid trust, estate, or The Legal entity (Do not
pension trust furnish the identifying
number of the personal
representative or trustee
unless the legal entity
itself is not designated in
the account title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization account
12. Partnership account held in the The partnership
name of the business
13. Association, club, or other The organization
tax-exempt organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a State or local
government, school district, or prison)
that receives agricultural program payments
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social
security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish
such person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments
include the following:
- - A corporation
- - A financial institution
- - An organization exempt from tax under section 501(a) or an
individual retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the
United States, or any subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign
government, or any agency or instrumentality thereof.
- - An international organization or any agency, or
instrumentality thereof.
- - A registered dealer in securities or commodities registered
in the U.S. or a possession of the U.S.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a nonexempt trust
describe in section 4947(a)(1).
- - An entity registered at all times under the Investment
Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under
section 1441.
- - Payments to partnerships not engaged in a trade or business
in the U.S. and which have at least one nonresident
partner.
- - Payments of patronage dividends where the amount received
is not paid in money.
- - Payments made by a certain foreign organizations.
- Payments made to a nominee.
Payments of interest not generally subject to backup withholding
include the following:
- - Payments of Interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest
dividends under section 852). Payments described in
section 6049(b)(5) to non-resident aliens.
- - Payments on tax-free covenant bonds under section 1451
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt Payees described above should file form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(A)(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
interest or other payments to give taxpayer identification numbers to payers who
must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1993, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTIES FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If
you fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
a reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. -- If you
fail to include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an under-
payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING -- If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
