================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 2
TO
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
--------------------
NEW YORK COMMUNITY BANCORP, INC.
(NAME OF SUBJECT COMPANY (ISSUER) AND FILING PERSON (OFFEROR))
--------------------
UNITS
(TITLE OF CLASS OF SECURITIES)
64944P307
(CUSIP NUMBER OF CLASS OF SECURITIES)
--------------------
JOSEPH R. FICALORA
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
NEW YORK COMMUNITY BANCORP, INC.
615 MERRICK AVENUE
WESTBURY, NEW YORK 11590
TELEPHONE: (516) 683-4100
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
--------------------
COPIES TO:
ERIC S. KRACOV, ESQ.
VICTOR L. CANGELOSI, ESQ.
EDWARD G. OLIFER, ESQ.
KILPATRICK STOCKTON LLP
607 14TH STREET, NW
SUITE 900
WASHINGTON, DC 20005
(202) 508-5800
--------------------
CALCULATION OF FILING FEE
================================================================================
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
--------------------------------------------------------------------------------
$188,270,147 $10,506
================================================================================
* This valuation assumes the exchange of 5,498,544 Bifurcated Option Note
Unit SecuritiES(SM) of New York Community Bancorp, Inc. ("NYB"), stated
amount $50.00 per unit, ("BONUSES(SM) units") for common shares of NYB,
par value $0.01 per share. Estimated for purposes of calculating the
amount of the filing fee only, this amount is based on the average of the
high and low prices of the NYB BONUSES(SM) units of $34.24 as of July 27,
2009 as reported on the New York Stock Exchange.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended by Fee Rate Advisory #5
for Fiscal Year 2009, effective March 11, 2009, equals $55.80 for each
$1,000,000 of the value of the transaction.
|X| Check the box if any part of the filing fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $10,506 Filing Party: New York Community Bancorp, Inc.
Form or Registration No.: Schedule TO Date Filed: July 29, 2009
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
|X| Check the appropriate boxes below to designate any transaction to which the
statement relates:
|_| third party tender offer subject to Rule 14d-1.
|X| issuer tender offer subject to Rule 13e-4.
|_| going private transaction subject to Rule 13e-3.
|_| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
================================================================================
INTRODUCTION
This Amendment No. 2 (this "Amendment") amends and supplements the Tender
Offer Statement on Schedule TO filed on July 29, 2009, as amended on August 11,
2009 (the "Schedule TO") by New York Community Bancorp, Inc. ("NYB"), a Delaware
corporation, pursuant to Section 13e-4 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), in connection with an offer by NYB
to exchange any and all of its 5,498,544 Bifurcated Option Note Unit
SecuritiES(SM), stated amount $50.00 per unit (the "BONUSES(SM) units"),
comprised of (i) a Trust Preferred Security issued by New York Community Capital
Trust V (the "Trust"), having a liquidation preference of $50.00 and a
distribution rate of 6% per annum on the stated liquidation preference ("Trust
Preferred Security"); and (ii) a warrant to purchase 2.4953 shares of NYB common
stock (the "Common Shares") at any time prior to May 7, 2051, the exercise price
of which is currently $50.00, for a number of its Common Shares, at an exchange
ratio equal to (i) 2.4953 Common Shares plus (ii) a number of Common Shares
equal to $10.00 divided by the Weighted Average Price of the Common Shares, for
each validly tendered and accepted BONUSES(SM) unit, on the terms and subject to
the conditions described in the Offer to Exchange, dated July 29, 2009 (the
"Offer to Exchange"), and in the related Letter of Transmittal, which, as
amended or supplemented from time to time, together constitute the Exchange
Offer.
All information in the Offer to Exchange, including all schedules and
annexes thereto, which was previously filed with the Schedule TO, is hereby
expressly incorporated by reference in this Amendment No. 2 in response to all
items required in the Schedule TO, except that such information is hereby
amended and restated to the extent specifically provided for herein. All
capitalized terms used in this Amendment No. 2 and not otherwise defined have
the respective meanings ascribed to them in the Offer to Exchange as amended or
supplemented.
ITEMS 1 THROUGH 11.
THE OFFER TO EXCHANGE, A COPY OF WHICH WAS FILED WITH THE SCHEDULE TO AS EXHIBIT
(A)(1)(A), IS HEREBY AMENDED AND SUPPLEMENTED AS FOLLOWS:
(1) THE FIRST PARAGRAPH UNDER THE CAPTION "FORWARD-LOOKING STATEMENTS" ON PAGE
VI OF THE OFFER TO EXCHANGE IS AMENDED TO INCLUDE THE FOLLOWING AS THE LAST
SENTENCE OF THAT FIRST PARAGRAPH:
The safe harbor provisions for forward-looking statements contained in the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, do not apply to any forward-looking statements made in connection with
this Exchange Offer.
THE LETTER OF TRANSMITTAL, A COPY OF WHICH WAS FILED WITH THE SCHEDULE TO AS
EXHIBIT (A)(1)(B), IS HEREBY AMENDED AND SUPPLEMENTED AS FOLLOWS:
(1) THE LAST SENTENCE ON THE CARRYOVER PARAGRAPH AT THE TOP OF PAGE 5 AND THE
SENTENCE BEGINNING WITH (I) UNDER THE SECTION ENTITLED "ACKNOWLEDGEMENT OF
REPRESENTATIONS AND WARRANTIES" HAVE BEEN DELETED IN THEIR ENTIRETY FROM THE
LETTER OF TRANSMITTAL. A COPY OF THE AMENDED LETTER OF TRANSMITTAL IS ATTACHED
AS EXHIBIT (A)(1)(B) TO THIS AMENDMENT NO. 2.
ITEM 12. EXHIBITS.
(a)(1)(A)* Offer to Exchange, dated July 29, 2009
(a)(1)(B)** Form of Letter of Transmittal
(a)(1)(C)* Form of Notice of Withdrawal
(a)(1)(D)* Form of Letter to Clients
(a)(1)(E)* Form of Letter to The Depository Trust Company Participants
(a)(5)* Press Release, dated July 29, 2009
(d)(1) Underwriting Agreement for offering BONUSES(SM) units(1)
(d)(2)* Amended and Restated Declaration of Trust of New York Community Capital Trust V
(d)(3)* Indenture relating to the Junior Subordinated Debentures between New York Community Bancorp, Inc. and
Wilmington Trust Company, as Trustee
(d)(4)* First Supplemental Indenture between New York Community Bancorp, Inc. and Wilmington Trust Company, as
Trustee
(d)(5)* Form of Preferred Security (included in Exhibit (d)(2))
(d)(6)* Form of Warrant (included in Exhibit (d)(10))
(d)(7)* Form of Unit Certificate (included in Exhibit (d)(9))
(d)(8)* Guarantee issued in connection with the BONUSES(SM) units
(d)(9)* Unit Agreement between New York Community Bancorp, Inc., New York Community Capital Trust V and
Wilmington Trust Company, as Warrant Agent, Property Trustee and Agent
(d)(10)* Warrant Agreement between New York Community Bancorp, Inc. and Wilmington Trust Company, as Agent
(d)(11) Amendment No. 1 to the Amended and Restated Declaration of Trust of New York Community Capital Trust V(2)
(d)(12) Amendment No. 1 to the First Supplemental Indenture between New York Community Bancorp, Inc. and Wilmington
Trust Company, as Trustee(2)
(d)(13) Amendment No. 1 to the Warrant Agreement between New York Community Bancorp, Inc. and Wilmington Trust
Company, as Warrant Agent(2)
---------------------
* Previously filed.
** Filed herewith.
(1) Incorporated by reference to the exhibits to the Form 8-K filed with the Securities and Exchange Commission
on November 4, 2002.
(2) Incorporated by reference to the exhibits to the Form 8-K filed with the Securities and Exchange Commission
on April 17, 2003.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
NOT APPLICABLE.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: August 14, 2009 NEW YORK COMMUNITY BANCORP, INC.
By: Joseph R. Ficalora
---------------------------------------
Name: Joseph R. Ficalora
Title: Chairman, President and Chief Executive
Officer
EXHIBIT INDEX
(a)(1)(A)* Offer to Exchange, dated July 29, 2009
(a)(1)(B)** Form of Letter of Transmittal
(a)(1)(C)* Form of Notice of Withdrawal
(a)(1)(D)* Form of Letter to Clients
(a)(1)(E)* Form of Letter to The Depository Trust Company Participants
(a)(5)* Press Release, dated July 29, 2009
(d)(1) Underwriting Agreement for offering BONUSES(SM) units(1)
(d)(2)* Amended and Restated Declaration of Trust of New York Community Capital Trust V
(d)(3)* Indenture relating to the Junior Subordinated Debentures between New York Community Bancorp, Inc. and
Wilmington Trust Company, as Trustee
(d)(4)* First Supplemental Indenture between New York Community Bancorp, Inc. and Wilmington Trust Company, as
Trustee
(d)(5)* Form of Preferred Security (included in Exhibit (d)(2))
(d)(6)* Form of Warrant (included in Exhibit (d)(10))
(d)(7)* Form of Unit Certificate (included in Exhibit (d)(9))
(d)(8)* Guarantee issued in connection with the BONUSES(SM) units
(d)(9)* Unit Agreement between New York Community Bancorp, Inc., New York Community Capital Trust V and
Wilmington Trust Company, as Warrant Agent, Property Trustee and Agent
(d)(10)* Warrant Agreement between New York Community Bancorp, Inc. and Wilmington Trust Company, as Agent
(d)(11) Amendment No. 1 to the Amended and Restated Declaration of Trust of New York Community Capital Trust V(2)
(d)(12) Amendment No. 1 to the First Supplemental Indenture between New York Community Bancorp, Inc. and Wilmington
Trust Company, as Trustee(2)
(d)(13) Amendment No. 1 to the Warrant Agreement between New York Community Bancorp, Inc. and Wilmington Trust
Company, as Warrant Agent(2)
---------------------
* Previously filed.
** Filed herewith.
(1) Incorporated by reference to the exhibits to the Form 8-K filed with the Securities and Exchange Commission
on November 4, 2002.
(2) Incorporated by reference to the exhibits to the Form 8-K filed with the Securities and Exchange Commission
on April 17, 2003.
EXHIBIT (a)(1)(B)
LETTER OF TRANSMITTAL
NEW YORK COMMUNITY BANCORP, INC.
OFFER TO EXCHANGE
COMMON SHARES OF NEW YORK COMMUNITY BANCORP, INC. FOR
ANY AND ALL OUTSTANDING BIFURCATED OPTION NOTE UNIT SECURITIES(SM)(BONUSES(SM))
OF NEW YORK COMMUNITY BANCORP, INC.
PURSUANT TO ITS
OFFER TO EXCHANGE, DATED JULY 29, 2009
(AS SUPPLEMENTED OR AMENDED FROM TIME TO TIME, THE "OFFER TO EXCHANGE")
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK
CITY TIME, ON AUGUST 25, 2009, UNLESS THE EXCHANGE OFFER IS EXTENDED BY US (SUCH
DATE AND TIME, AS THE EXCHANGE OFFER MAY BE EXTENDED, THE "EXPIRATION DATE").
TENDERS MAY NOT BE WITHDRAWN AFTER THE BONUSES(SM) UNITS HAVE BEEN ACCEPTED FOR
EXCHANGE.
The exchange agent for the Exchange Offer is:
BNY MELLON SHAREOWNER SERVICES
BY MAIL BY HAND OR
REGISTERED OR CERTIFIED MAIL RECOMMENDED OVERNIGHT DELIVERY
Mellon Investor Services LLC Mellon Investor Services LLC
PO Box 3301 480 Washington Boulevard
South Hackensack, NJ 07606-1901 Jersey City, NJ 07310
Attn: 27th Floor
Corporate Action Department
The information agent for the Exchange Offer is:
MELLON INVESTOR SERVICES LLC
480 WASHINGTON BOULEVARD
JERSEY CITY, NJ 07310
ATTN: 27TH FLOOR
CORPORATE ACTION DEPARTMENT
Banks and Brokers call: (201) 680-6579 (Collect)
All others call Toll-free: (800) 777-3674
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
IF YOU WISH TO EXCHANGE CURRENTLY OUTSTANDING BIFURCATED OPTION NOTE UNIT
SECURITIES(SM), OF NEW YORK COMMUNITY BANCORP, INC. (THE "BONUSES(SM) UNITS")
FOR NEW YORK COMMUNITY BANCORP, INC. (THE "COMPANY") COMMON SHARES PURSUANT TO
THE EXCHANGE OFFER, YOU MUST VALIDLY TENDER (AND NOT WITHDRAW) YOUR BONUSES(SM)
UNITS TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be completed by a holder desiring to
tender their BONUSES(SM) units, unless such holder is executing the tender
through DTC's automated tender offer program ("ATOP"). This Letter of
Transmittal need not be completed by a holder tendering through ATOP. However, a
holder tendering through ATOP will be bound by the terms of this Letter of
Transmittal, and such holder will be deemed to have made the acknowledgments and
representations and warranties this Letter of Transmittal contains, just as if
such holder had signed it. Holders who wish to tender through DTC's ATOP
procedures should allow sufficient time for completion of the ATOP procedures
during the normal business hours of DTC on or before the expiration date.
As described in the Offer to Exchange, a valid tender of BONUSES(SM) units
pursuant to the Exchange Offer requires delivery of the BONUSES(SM) units to the
exchange agent through book-entry transfer to the exchange agent's account at
DTC pursuant to the procedures set forth in the Offer to Exchange under the
caption "The Exchange Offer--Procedures for Tendering BONUSES(SM) units" and
either (i) delivery to the exchange agent of a properly completed and duly
executed Letter of Transmittal or (ii) delivery to the exchange agent of an
"agent's message" through ATOP, to the effect that the DTC participant named in
the agent's message has received and agrees to be bound by the terms and
conditions set forth in the Offer to Exchange and this Letter of Transmittal.
The proper procedures for tendering BONUSES(SM) units pursuant to the Exchange
Offer are described in the Offer to Exchange under the caption "The Exchange
Offer--Procedures for Tendering BONUSES(SM) units."
NEW YORK COMMUNITY BANCORP, INC. IS NOT PROVIDING FOR GUARANTEED DELIVERY
PROCEDURES AND THEREFORE A HOLDER MUST ALLOW SUFFICIENT TIME FOR THE NECESSARY
TENDER PROCEDURES TO BE COMPLETED PRIOR TO THE EXPIRATION DATE.
Tenders of the BONUSES(SM) units may be withdrawn at any time prior to the
expiration date. For a withdrawal of the BONUSES(SM) units to be effective, the
exchange agent must receive a written or facsimile transmission containing a
notice of withdrawal or a properly transmitted "Request Message" through ATOP,
in the case of DTC participants, before the expiration date, which is 11:59
p.m., New York City time, on August 25, 2009, unless extended. Any such notice
of withdrawal must (i) specify the name of the holder who tendered the
BONUSES(SM) units to be withdrawn, (ii) contain a description of the BONUSES(SM)
units to be withdrawn and the number of BONUSES(SM) units, (iii) contain a
statement that such holder of BONUSES(SM) units is withdrawing the election to
tender their BONUSES(SM) units, and (iv) be signed by the holder of such
BONUSES(SM) units in the same manner as the original signature on the Letter of
Transmittal, including any required signature guarantees (or, in the case of the
BONUSES(SM) units tendered by a DTC participant through ATOP, be signed by such
participant in the same manner as the participant's name is listed on the
agent's message), or be accompanied by evidence satisfactory to the Company that
the person withdrawing the tender has succeeded to the beneficial ownership of
the BONUSES(SM) units. In addition, if not previously returned, a holder may
withdraw BONUSES(SM) units that are not accepted by the Company for exchange
after the expiration of 40 business days following commencement of the Exchange
Offer. If the Company terminates the Exchange Offer without having purchased any
BONUSES(SM) units pursuant to the Exchange Offer, whether before or after the
expiration date, the Company will promptly return the BONUSES(SM) units that
were previously tendered. If BONUSES(SM) units are otherwise not accepted for
exchange, including due to proration, the Company will return the BONUSES(SM)
units, at its expense, promptly after the expiration or termination of the
Exchange Offer.
2
For a description of certain procedures to be followed in order to tender
or withdraw BONUSES(SM) units (through ATOP or otherwise), see "The Exchange
Offer--Procedures for Tendering BONUSES(SM) units" and "The Exchange
Offer--Withdrawal of Tenders" in the Offer to Exchange and the Instructions to
this Letter of Transmittal.
Holders who do not tender their BONUSES(SM) units (or properly withdraw
previously tendered BONUSES(SM) units) prior to the expiration date will
continue to hold their BONUSES(SM) units after the settlement of the Exchange
Offer.
Questions and requests for assistance or for additional copies of the
Offer to Exchange and this Letter of Transmittal may be directed to the
information agent.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
IF YOU DETERMINE TO USE THIS LETTER OF TRANSMITTAL, YOU MUST COMPLETE THE
APPROPRIATE BOX(ES) BELOW WITH RESPECT TO THE BONUSES(SM) UNITS TO
WHICH THIS LETTER OF TRANSMITTAL RELATES.
------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF BONUSES(SM) UNITS
------------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
NAME AND ADDRESS OF DTC NUMBER OF LIQUIDATION PREFERENCE LIQUIDATION PREFERENCE
PARTICIPANT (FILL IN, IF BLANK) BONUSES(SM) UNITS TENDERED REPRESENTED OF BONUSES(SM) UNITS TENDERED(1)
------------------------------------------------------------------------------------------------------------------------------------
$
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
If the space provided above is inadequate, list the information requested
above on a separate signed schedule and attach that schedule to this Letter of
Transmittal.
The name and address of the DTC participant must be printed exactly as it
appears on a security position listing such participant as the owner of the
BONUSES(SM) units.
---------------------
1 Each BONUSES(SM) unit, stated amount $50.00 per Unit, is comprised of (i)
a trust preferred security issued by New York Community Capital Trust V,
having a liquidation preference of $50.00 and a distribution rate of 6%
per annum on the stated liquidation preference; and (ii) a warrant to
purchase 2.4953 common shares of the Company, par value $0.01 per share,
at any time prior to May 7, 2051, the exercise price of which is currently
$50.00. Unless otherwise indicated in the column labeled "Liquidation
Preference of BONUSES(SM) units Tendered" and subject to the terms and
conditions of the Exchange Offer, a Holder will be deemed to have tendered
the entire aggregate liquidation amount represented by the BONUSES(SM)
units indicated in the column labeled "Aggregate Liquidation Amount
Represented." See Instruction 2.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the exchange offer.
Name of Tendering Institution:
-------------------------------------------------
DTC Account Number:
-------------------------------------------------------------
Transaction Code Number:
--------------------------------------------------------
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
3
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Offer to Exchange, dated July
29, 2009 (the "Offer to Exchange," together with this Letter of Transmittal, the
"Offer Documents"), of New York Community Bancorp, Inc. (the "Company"), a
Delaware corporation, for the offer to exchange any and all of its 5,498,544
Bifurcated Option Note Unit SecuritiES(SM) units, stated amount $50.00 per unit
(the "BONUSES(SM) units"), comprised of (i) a trust preferred security issued by
New York Community Capital Trust V, having a liquidation preference of $50.00
and a distribution rate of 6% per annum on the stated liquidation preference
(the "Trust Preferred Security"); and (ii) a warrant to purchase 2.4953 common
shares of the Company, par value $0.01 per share (the "Common Shares") at any
time prior to May 7, 2051, the exercise price of which is currently $50.00 for a
number of its Common Shares, upon and subject to the terms and conditions set
forth in the Offer Documents. We urge you to review the Offer to Exchange for
the terms and conditions of the Exchange Offer. Certain terms used but not
defined herein have the meaning given to them in the Offer to Exchange.
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above-described stated amount of
BONUSES(SM) units. Subject to and effective upon the acceptance for exchange of,
and the exchange of the BONUSES(SM) units tendered herewith, the undersigned
hereby (1) irrevocably sells, transfers, conveys, assigns and tenders to the
Company all right, title and interest in and to all such BONUSES(SM) units as
are being tendered herewith; (2) waives any and all other rights with respect to
such BONUSES(SM) units (including with respect to any existing or past defaults
and their consequences in respect of such BONUSES(SM) units); (3) releases and
discharges the company and its subsidiaries from any and all claims that you may
have now, or may have in the future, arising out of, or related to, such
BONUSES(SM) units, including any claims that you are entitled to receive any
additional payments with respect to such BONUSES(SM) units or to participate in
any redemption or defeasance of such BONUSES(SM) units; and (4) irrevocably
appoints the exchange agent as its agent and attorney-in-fact (with full
knowledge that the exchange agent is also acting as agent of the Company with
respect to the tendered BONUSES(SM) units with full power coupled with an
interest) to (a) deliver certificates representing the BONUSES(SM) units, and/or
transfer ownership of the BONUSES(SM) units on the account books maintained by
DTC, together with all accompanying evidences of transfer and authenticity, to
or upon the Company's order, (b) present the BONUSES(SM) units for transfer on
the relevant security register, (c) receive all benefits or otherwise exercise
all rights of beneficial ownership of the BONUSES(SM) units, all in accordance
with the terms of the Offer to Exchange and (d) deliver, in book-entry form, the
Common Shares issuable upon acceptance of BONUSES(SM) units tendered hereby,
together with any BONUSES(SM) units not accepted in the Exchange Offer, to the
DTC account designated herein by the undersigned, all in accordance with the
terms and conditions of the Exchange Offer as described in the Offer to
Exchange.
Subject to applicable regulations of the Securities and Exchange
Commission, if, for any reason whatsoever, acceptance for exchange of, or
exchange of, any BONUSES(SM) units tendered pursuant to the Exchange Offer is
delayed (whether before or after the Company's acceptance for exchange of, or
the exchange of, BONUSES(SM) units) or the Company extends the Exchange Offer or
is unable to accept for exchange or exchange the BONUSES(SM) units tendered
pursuant to the Exchange Offer, the Company may instruct the exchange agent to
retain tendered BONUSES(SM) units, and those BONUSES(SM) units may not be
withdrawn, except to the extent that you are entitled to the withdrawal rights
set forth in the Offer to Exchange. If you have tendered BONUSES(SM) units, you
may withdraw those BONUSES(SM) units prior to the applicable withdrawal deadline
by delivering a written notice of withdrawal subject to the limitations and
requirements described in "The Exchange Offer--Withdrawal of Tenders" in the
Offer to Exchange.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, SELL, ASSIGN AND TRANSFER THE BONUSES(SM)
UNITS TENDERED HEREBY AND TO ACQUIRE THE COMMON SHARES ISSUABLE UPON THE
EXCHANGE OF SUCH TENDERED BONUSES(SM) UNITS, AND THAT, WHEN THE BONUSES(SM)
UNITS ARE ACCEPTED FOR EXCHANGE, THE COMPANY WILL ACQUIRE GOOD, MARKETABLE AND
UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES
AND ENCUMBRANCES, AND THAT THE BONUSES(SM) UNITS TENDERED HEREBY ARE NOT SUBJECT
TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED HEREBY FURTHER REPRESENTS AND
WARRANTS THAT EITHER (I) IT IS NOT A PLAN ("PLAN") DESCRIBED IN SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED ("CODE") AND NO PORTION OF THE
ASSETS USED TO ACQUIRE OR HOLD THE COMMON STOCK CONSTITUTES ASSETS OF ANY PLAN
OR (II) THE EXCHANGE OF DEPOSITORY SHARES AND THE ACQUISITION AND HOLDING OF
COMMON STOCK WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF CODE OR A SIMILAR VIOLATION UNDER ANY LAWS OR
REGULATIONS THAT ARE SIMILAR TO THE PROVISIONS OF TITLE I OF ERISA OR SECTION
4975 OF THE CODE. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY
ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY
OR DESIRABLE TO COMPLETE THE SALE, ASSIGNMENT AND TRANSFER OF THE BONUSES(SM)
UNITS TENDERED HEREBY.
4
The undersigned understands that tenders of BONUSES(SM) units pursuant to
any one of the procedures described in the Offer to Exchange under the heading
"The Exchange Offer--Procedures for Tendering BONUSES(SM) units" and in the
instructions herein will, upon the Company's acceptance for exchange of such
tendered BONUSES(SM) units, constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Exchange Offer.
The Exchange Offer is subject to certain conditions described in the
section of the Offer to Exchange entitled "The Exchange Offer--Conditions to the
Exchange Offer."
The undersigned understands that the delivery and surrender of the
BONUSES(SM) units is not effective, and the risk of loss of the BONUSES(SM)
units does not pass to the exchange agent, until receipt by the exchange agent
of an agent's message. All questions as to the form of all documents and the
validity (including the time of receipt) and acceptance of tenders and
withdrawals of BONUSES(SM) units will be determined by the Company, in its sole
discretion, which determination shall be final and binding.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned.
IMPORTANT: BY USING THE ATOP PROCEDURES TO TENDER BONUSES(SM) UNITS, YOU
WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE
AGENT. YOU WILL, HOWEVER, BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE
MADE THE ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS.
ACKNOWLEDGEMENT OF REPRESENTATIONS AND WARRANTIES
The offer of Common Shares is being made pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended, contained
in Section 3(a)(9) thereof of the Securities Act, and has not been registered
under any other applicable securities laws.
By signing this Letter of Transmittal, the undersigned also represents,
warrants and acknowledges that there are risks incident to the acquisition of
the Common Shares, including, without limitation, those risks which are
summarized under "Risk Factors" in the Offer to Exchange.
5
--------------------------------------------------------------------------------
PLEASE SIGN BELOW--TO BE COMPLETED BY ALL TENDERING HOLDERS
This Letter of Transmittal must be signed by the Holder, exactly as his,
her, its or their name(s) appear(s) as a DTC participant on a security position
listing such participant as the owner of the BONUSES(SM) units or by stock
powers transmitted with this Letter of Transmittal. Endorsements on BONUSES(SM)
units and signatures on stock powers by Holders not executing this Letter of
Transmittal must have a guarantee by a Medallion Signature Guarantor. See
Instruction 3 below. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below
under "Capacity" and submit evidence satisfactory to the Company of such
person's authority to so act. See Instruction 3 below.
PLEASE SIGN HERE PLEASE SIGN HERE
----------------------------------------- -------------------------------------
Authorized Signature of Authorized Signature of
Registered Holder Registered Holder
----------------------------------------- -------------------------------------
Date Date
If signature is by attorney-in-fact, trustee, executor, administrator,
guardian, officer of a corporation or other person acting in a fiduciary or
representative capacity, please provide the following information:
Name: Name:
------------------------------------ --------------------------------
Title: Title:
----------------------------------- -------------------------------
Address: Address:
--------------------------------- -----------------------------
----------------------------------------- -----------------------------
Telephone Number: Telephone Number:
------------------------ --------------------
Dated: Dated:
----------------------------------- -------------------------------
----------------------------------------- -------------------------------------
Taxpayer Identification or Social Taxpayer Identification or Social
Security Number Security Number
----------------------------------------- -------------------------------------
DTC Account to Which Common Shares Should DTC Account to Which Common Shares
be Delivered Should be Delivered
SIGNATURE GUARANTEE
(IF REQUIRED, SEE INSTRUCTION 3)
Signature(s) Guaranteed by an
Eligible Institution:
----------------------------------------- Date:
Authorized Signature ----------------------------
Name of Eligible Institution
Guaranteeing Signature:
----------------------------------------- Address:
-------------------------
Capacity (full title):
-------------------
Telephone Number:
-------------------
--------------------------------------------------------------------------------
6
--------------------------------------------------------------------------------
SPECIAL PAYMENT OR ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if the Common Shares are to be issued in the name of
someone other than the person or persons who signed this Letter of Transmittal.
Issue Common Shares to:
Name(s)
---------------------------------------------------------------
Address
---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:
------------------------------------------------------
Book-Entry Transfer Facility Account:
----------------------------------
-----------------------------------------------------------------------
(Tax Identification or Social Security Number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if the BONUSES(SM) units that are not tendered or not
accepted are to be credited to someone other than the person or persons who
signed this Letter of Transmittal.
Credit BONUSES(SM) units to:
Name(s)
---------------------------------------------------------------
Address
---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:
------------------------------------------------------
-----------------------------------------------------------------------
(Tax Identification or Social Security Number)
Credit BONUSES(SM) units not exchanged and delivered by
book-entry transfer to the DTC account set forth below:
DTC Account Number:
--------------------------------------------------
----------------------------------------------------------------------
7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES.
This Letter of Transmittal is to be used by each Holder to tender
BONUSES(SM) units through book-entry transfer to the exchange agent's account at
DTC, if instructions are not being transferred through ATOP. The method of
delivery of this Letter of Transmittal and all other required documents to the
exchange agent is at the election and risk of Holders, and delivery will be
deemed made when actually received or confirmed by the exchange agent. If such
delivery is by mail, it is suggested that Holders use properly insured
registered mail with return receipt requested, and that the mailing be made
sufficiently in advance of the expiration date to permit delivery to the
exchange agent at or prior to such date. No alternative, conditional or
contingent tenders of the BONUSES(SM) units will be accepted. THIS LETTER OF
TRANSMITTAL SHOULD BE SENT ONLY TO THE EXCHANGE AGENT. DELIVERY OF DOCUMENTS TO
DTC OR THE COMPANY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
All BONUSES(SM) units were issued in book-entry form, and all of the
BONUSES(SM) units are currently represented by one or more global certificates
held for the account of DTC. The exchange agent and DTC have confirmed that the
BONUSES(SM) units are eligible for ATOP. To tender BONUSES(SM) units eligible
for ATOP, DTC participants may, in lieu of physically completing and signing
this Letter of Transmittal and delivering it to the exchange agent,
electronically transmit their acceptance through ATOP, and DTC will then verify
the acceptance, execute a book-entry delivery to the exchange agent's account at
DTC and send an Agent's Message to the exchange agent for its acceptance. The
confirmation of a book-entry transfer into the exchange agent's account at DTC
as described above is referred to herein as a "Book-Entry Confirmation."
Delivery of documents to DTC does not constitute delivery to the exchange agent.
The term "Agent's Message" as used herein means a message transmitted by DTC to,
and received by, the exchange agent and forming a part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
the DTC participant described in such Agent's Message, stating that such
participant has received and agrees to be bound by the terms and conditions of
the Exchange Offer as set forth in the Offer Documents, and that the Company may
enforce such agreement against such participant.
HOLDERS DESIRING TO TENDER BONUSES(SM) UNITS ON THE EXPIRATION DATE
THROUGH ATOP SHOULD NOTE THAT SUCH HOLDERS MUST ALLOW SUFFICIENT TIME FOR
COMPLETION OF THE ATOP PROCEDURES DURING THE NORMAL BUSINESS HOURS OF DTC.
All tendering Holders, by execution of this Letter of Transmittal or a
facsimile hereof, or delivery of an Agent's Message through ATOP, waive any
right to receive notice of the acceptance of their BONUSES(SM) units.
LETTERS OF TRANSMTTAL SHOULD NOT BE SENT TO THE COMPANY OR DTC.
2. PARTIAL TENDERS; FRACTIONAL SHARES
The entire amount of BONUSES(SM) units delivered to the exchange agent
will be deemed to have been tendered unless otherwise communicated to the
exchange agent or an amount is indicated under "Liquidation Preference of
BONUSES(SM) units Tendered" in the box entitled "Description of BONUSES(SM)
units" above. If the entire amount of all BONUSES(SM) units is not tendered,
then BONUSES(SM) units for the amount of BONUSES(SM) units not tendered and the
number of Common Shares equal to the Exchange Ratio issued in exchange for any
BONUSES(SM) units accepted for exchange will be credited to the account
maintained at DTC from which the tendered BONUSES(SM) units were delivered as
soon as practicable after the settlement date unless otherwise indicated on this
Letter of Transmittal.
8
Any BONUSES(SM) units which have been tendered but which are not accepted
for exchange will be returned to the holder thereof without cost to such holder
as promptly as practicable.
Fractional shares of Common Shares will not be issued in the Exchange
Offer. Instead, the number of Common Shares you receive in the Exchange Offer
will be rounded down to the nearest whole number.
3. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
This Letter of Transmittal must be signed by a participant in DTC by the
DTC participant, and in the name of the DTC Participant, whose name appears on
the security position listing as the owner of the BONUSES(SM) units.
If any of the BONUSES(SM) units tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of BONUSES(SM) units registered in different names are
tendered, it will be necessary to complete, sign and submit as many separate
copies of this Letter of Transmittal as there are different registrations of
BONUSES(SM) units.
A holder does not need to provide a separate stock power if:
- this Letter of Transmittal is signed by the Holder; and
- any liquidation preference of BONUSES(SM) units that are not
tendered or not accepted for exchange or any Common Shares issued in
exchange for validly tendered and accepted BONUSES(SM) units is to
be credited to the account of the Holder at DTC.
In any case other than those listed above, the holder must transmit a
separate properly completed stock power with this Letter of Transmittal exactly
as the name(s) of the Holder(s) appear(s) on such DTC participant's security
position listing, with the signature on the endorsement or stock power
guaranteed by a Medallion Signature Guarantor, unless such stock powers are
executed by a Medallion Signature Guarantor (as defined below).
If this Letter of Transmittal or stock 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 proper evidence satisfactory to the
Company and the exchange agent of their authority so to act must be submitted
with this Letter of Transmittal.
Signatures on stock powers provided in accordance with this Instruction 3
by holders not executing this Letter of Transmittal must be guaranteed by a
Medallion Signature Guarantor (as defined below).
No signature guarantee is required for the tender or withdrawal of
BONUSES(SM) units if (a) this Letter of Transmittal is signed by a DTC
participant whose name appears on a security position listing as the owner of
the Trust Preferred Securities and neither the "Special Payment Instructions"
box nor the "Special Delivery Instructions" box of this Letter of Transmittal
has been completed or (b) such BONUSES(SM) units are tendered for the account of
a member firm of a registered national securities exchange, a member of the
Financial Industry Regulatory Authority, Inc. or a commercial bank, trust
company or other nominee having an office or correspondent in the United States.
In all other cases, all signatures on Letters of Transmittal and signatures on
stock powers, if any, accompanying BONUSES(SM) units must be guaranteed by a
recognized participant in the New York Stock Exchange Medallion Signature
Program or the Stock Exchange Medallion Program (a "Medallion Signature
Guarantor").
9
4. SPECIAL ISSUANCE, DELIVERY AND PAYMENT INSTRUCTIONS.
Tendering holders should indicate, in the applicable box, the account at
DTC in which the Common Shares are to be issued and deposited, if different from
the accounts of the person signing this Letter of Transmittal.
Tendering holders should indicate, in the applicable box, the name and
address in which BONUSES(SM) units for stated amounts not tendered or not
accepted for exchange are to be issued and delivered, if different from the name
and address of the person signing this Letter of Transmittal.
In the case of issuance or payment in a different name, the Taxpayer
Identification Number or Social Security Number of the person named must also be
indicated and the tendering holder should complete the applicable box.
If no instructions are given, the Common Shares (and any BONUSES(SM) units
not tendered or not accepted) will be made to (or credited to) such holder's
account at DTC.
The Company has no obligation pursuant to the "Special Payment
Instructions" box or "Special Delivery Instructions" box to transfer any
BONUSES(SM) units from the name of the holder(s) thereof if the Company does not
accept for exchange any of the holders' BONUSES(SM) units or if the holder(s)
do(es) not present satisfactory evidence of payment of any taxes that may be
payable as a consequence of the payment or delivery requested by the holder(s)
completing the "Special Payment Instructions" and/or "Special Delivery
Instructions" boxes.
5. TRANSFER TAXES.
Holders who tender their BONUSES(SM) units for exchange generally should
not be obligated to pay any transfer taxes. However, if the delivery of Common
Shares is being made to, or if BONUSES(SM) units not tendered or not accepted
for payment are registered in the name of, any person other than the holder of
BONUSES(SM) units tendered thereby or BONUSES(SM) units are credited in the name
of any person other than the person(s) signing the Letter of Transmittal or
electronically transmitting acceptance through ATOP, as applicable, then, in
such event, delivery and payment shall not be made unless satisfactory evidence
of the payment of such taxes or exemption therefrom is submitted.
6. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive, in whole or in part, any
of the specified conditions to the Exchange Offer set forth in the Offer to
Exchange.
7. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions and requests for assistance relating to the Offer to Exchange,
this Letter of Transmittal and other related documents and relating to the
procedure for tendering may be directed to the exchange agent at the address and
telephone number set forth above.
Questions and requests for assistance or for additional copies of the
Offer to Exchange may be directed to the information agent at the address and
telephone number set forth above.
8. VALIDITY AND FORM.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for exchange of any tendered BONUSES(SM) units pursuant
to any of the instructions in this Letter of Transmittal, and the form and
validity (including time of receipt of notices of withdrawal) of all documents
will be determined by the Company in its sole discretion, which determination
will be final and binding. The Company reserves the absolute right to reject any
or all tenders of any BONUSES(SM) units determined by the Company not to be in
proper form, or if the acceptance or exchange of such BONUSES(SM) units may, in
the opinion of counsel for the Company, be unlawful. The Company also reserves
the absolute right to waive any conditions to any offer that the Company is
legally permitted to waive.
10
A tender of BONUSES(SM) units will not be deemed to have been validly made
until all defects or irregularities in such tender have been cured or waived.
All questions as to the form and validity (including time of receipt) of any
delivery will be determined by the Company in its sole discretion, which
determination shall be final and binding. None of the Company, the exchange
agent, the information agent or any other person or entity is under any duty to
give notification of any defects or irregularities in any tender or withdrawal
of any BONUSES(SM) units, or will incur any liability for failure to give any
such notification. Holders should send all materials to the exchange agent and
not to the Company, the information agent or any dealer manager.
9. NO CONDITIONAL TENDER
No alternative, conditional, irregular or contingent tender of BONUSES(SM)
units will be accepted.
10. WITHDRAWAL
Holders who wish to exercise their right of withdrawal with respect to the
Exchange Offer must give written notice of withdrawal, delivered by mail, hand
delivery or manually signed facsimile transmission, or a properly transmitted
"Request Message" through ATOP, which notice must be received by the exchange
agent at its address set forth on the back cover of this Letter of Transmittal
on or prior to the expiration date. In order to be valid, a notice of withdrawal
must include the items listed in the Offer to Exchange under "The Exchange Offer
- Withdrawal of Tenders."
11. IMPORTANT TAX INFORMATION.
TO COMPLY WITH TREASURY DEPARTMENT CIRCULAR 230, YOU ARE HEREBY NOTIFIED
THAT: (A) ANY DISCUSSION OF FEDERAL TAX ISSUES IN THIS LETTER OF TRANSMITTAL IS
NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED BY YOU, FOR THE PURPOSE
OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON YOU UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"); (B) ANY SUCH DISCUSSION IS INCLUDED HEREIN BY
THE COMPANY IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE OFFER TO
EXCHANGE DESCRIBED IN THE OFFER TO EXCHANGE; AND (C) YOU SHOULD SEEK ADVICE
BASED ON YOUR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF TOGETHER WITH
BONUSES(SM) UNITS OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION
DATE.
11