EXHIBIT 4.4
INSTRUCTIONS AS TO USE OF KINARK CORPORATION
SUBSCRIPTION CARDS
CONSULT THE INFORMATION AGENT, YOUR BANK OR BROKER
AS TO ANY QUESTIONS
The following instructions relate to a rights offering (the "Rights
Offering") by Kinark Corporation, a Delaware corporation (the "Company"), to
the holders of shares of its common stock, par value $.10 per share (the
"Common Stock"), as described in the Company's Prospectus dated
________________, 1996, (the "Prospectus"). Holders of record of Common Stock
at the close of business on ________________, 1996, (the "Record Date"), are
receiving one nontransferable subscription right (a "Right") for each share of
Common Stock held by them on the Record Date. No fractional Rights will be
issued and no cash in lieu thereof will be paid. Each Right is exercisable,
upon payment of $____ in cash (the "Subscription Price"), to purchase one share
of Common Stock (the "Subscription Privilege"). See "The Rights Offering" in
the Prospectus.
The Rights will expire at 5:00 p.m., New York City time, on
____________________, 1996, unless extended (the "Expiration Date").
The number of Rights to which you are entitled and the number of shares
purchasable thereunder are printed on the face of your Subscription Card. You
should indicate your wishes with regard to the exercise of your Rights by
completing the Subscription Card and returning it to the Subscription Agent in
the envelope provided.
YOUR SUBSCRIPTION CARDS MUST BE RECEIVED BY THE SUBSCRIPTION AGENT, OR
GUARANTEED DELIVERY REQUIREMENTS WITH RESPECT TO YOUR SUBSCRIPTION CARDS MUST
BE COMPLIED WITH, AND PAYMENT OF THE SUBSCRIPTION PRICE, INCLUDING FINAL
CLEARANCE OF ANY CHECKS, MUST BE RECEIVED BY THE SUBSCRIPTION AGENT, ON OR
BEFORE 5:00 PM., NEW YORK CITY TIME, ON THE EXPIRATION DATE. YOU MAY NOT
REVOKE ANY EXERCISE OF A RIGHT.
1. SUBSCRIPTION PRIVILEGES.
To exercise Rights, send your properly completed and executed Subscription
Card, together with payment in full of the Subscription Price for each share of
Common Stock subscribed for pursuant to the Subscription Privilege, to the
Subscription Agent. Payment of the Subscription Price must be made in U.S.
dollars for the full number of shares of Common Stock being subscribed for by
(a) check or bank draft drawn upon a U.S. bank or postal, telegraphic or
express money order payable to Chemical Mellon Shareholder Services, L.L.C., as
Subscription Agent, or (b) wire transfer of same day funds to the account
maintained by the Subscription Agent for such purpose at Mellon Bank, N.A., ABA
No. ____________, Account No. _____________ (marked: "Kinark Corporation
Subscription"). The Subscription Price will be deemed to have been received by
the Subscription Agent only upon (i) the clearance of any uncertified check,
(ii) the receipt by the Subscription Agent of any certified check or bank draft
drawn upon a U.S. bank or any postal, telegraphic or express money order or
(iii) the receipt of good funds in the Subscription Agent's account designated
above. IF PAYING BY UNCERTIFIED PERSONAL CHECK, PLEASE NOTE THAT THE FUNDS
PAID THEREBY MAY TAKE AT LEAST FIVE BUSINESS DAYS TO CLEAR. ACCORDINGLY,
HOLDERS OF RIGHTS WHO WISH TO PAY THE SUBSCRIPTION PRICE BY MEANS OF
UNCERTIFIED PERSONAL CHECK ARE URGED TO MAKE PAYMENT SUFFICIENTLY IN ADVANCE OF
THE EXPIRATION DATE TO ENSURE THAT SUCH PAYMENT IS RECEIVED AND CLEARS BY SUCH
DATE AND ARE URGED TO CONSIDER PAYMENT BY MEANS OF CERTIFIED OR CASHIER'S
CHECK, MONEY ORDER OR WIRE TRANSFER OF FUNDS. Alternatively, you may cause a
written guarantee substantially in the form delivered with these instructions
(the "Notice of Guaranteed Delivery") from a member firm of a registered
national securities exchange or a member of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States (each of the foregoing being an "Eligible
Institution"), to be received by the Subscription Agent at or prior to the
Expiration Date together with payment in full of the applicable Subscription
Price. Such Notice of Guaranteed Delivery must state your name, the number of
Rights represented by your Subscription Card and the number of shares of Common
Stock being purchased pursuant to the Subscription Privilege, and will
guarantee the delivery to the Subscription Agent of your properly completed and
executed Subscription Card within three American Stock Exchange trading days
following the date of the Notice of Guaranteed Delivery. If this procedure is
followed, your Subscription Cards must be received by the Subscription Agent
within three American Stock Exchange trading days of the Notice of Guaranteed
Delivery. Additional copies of the Notice of Guaranteed Delivery may be
obtained upon request from the Information Agent at the address, or by calling
the telephone number, indicated below.
BANKS, BROKERS AND OTHER NOMINEE HOLDERS OF RIGHTS WHO EXERCISE RIGHTS ON
BEHALF OF BENEFICIAL OWNERS OF RIGHTS WILL BE REQUIRED TO CERTIFY TO THE
SUBSCRIPTION AGENT AND THE COMPANY (BY DELIVERING TO THE SUBSCRIPTION AGENT A
NOMINEE HOLDER CERTIFICATION SUBSTANTIALLY IN THE FORM AVAILABLE FROM THE
SUBSCRIPTION AGENT) THE AGGREGATE NUMBER OF RIGHTS THAT HAVE BEEN EXERCISED BY
EACH BENEFICIAL OWNER OF RIGHTS ON WHOSE BEHALF SUCH NOMINEE HOLDER IS ACTING.
The addresses and facsimile number of the Subscription Agent are as
follows:
By Mail: Chemical Mellon Shareholder Services, L.L.C.
Reorganization Department
P. O. Box 817
Midtown Station
New York, New York 10018
By Hand Chemical Mellon Shareholder Services, L.L.C.
or Reorganization Department
Overnight: 120 Broadway
13th Floor
New York, New York 10271
Facsimile Transmission: (201) 329-8936
Confirmation by Telephone: (201) 296-4983
The address and telephone number of Morrow & Co., Inc., the Information
Agent, is as follows:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, New York 10022-4799
CALL TOLL-FREE
(800) 566-9061
If you have not indicated the number of Rights being exercised, or if you have
not forwarded full payment of the Subscription Price for the number of Rights
that you have indicated are being exercised, you will be deemed to have
exercised the Subscription Privilege with respect to the maximum number of
whole Rights which may be exercised for the Subscription Price payment
delivered by you. To the extent that the Subscription Price payment delivered
by you exceeds the product of the Subscription Price multiplied by the number
of Rights evidenced by the Subscription Cards delivered by you (such excess
being the "Subscription Excess"), such Subscription Excess will be refunded to
you.
2. DELIVERY OF COMMON SHARES.
The following deliveries and payments will be made to the address shown on
the face of your Subscription Card unless you provide instructions to the
contrary in Part II of the Subscription Card.
(a) Shares of Common Stock. As soon as practicable after the Expiration
Date, the Subscription Agent will mail to each Rights holder who validly
exercises Rights the number of shares of Common Stock issuable to such Rights
holder pursuant to the Subscription Privilege. See "The Rights Offering -
Subscription Privileges" in the Prospectus.
(b) Cash Payments. As soon as practicable after the Expiration Date, the
Subscription Agent will mail to each Rights holder the amount of any
Subscription Excess payable to such Rights holder.
3. EXECUTION.
(a) Execution by Registered Holder. The signature on the Subscription
Card must correspond with the name of the registered holder exactly as it
appears on the face of the Subscription Card without any alteration or change
whatsoever. Persons who sign the Subscription Card in a representative or
other fiduciary capacity must indicate their capacity when signing and, unless
waived by the Subscription Agent in its sole and absolute discretion, must
present to the Subscription Agent satisfactory evidence of their authority to
so act.
(c) Execution by Person Other than Registered Holder. If the
Subscription Card is executed by a person other than the holder named on the
face of the Subscription Card, proper evidence of authority of the person
executing the Subscription Card must accompany the same unless, for good cause,
the Subscription Agent dispenses with proof of authority.
(d) Signature Guarantees. Your signature must be guaranteed by an
Eligible Institution if you specify special payment or delivery instructions
pursuant to Part II of the Subscription Card.
4. METHOD OF DELIVERY.
The method of delivery of Subscription Cards and payment of the Exercise
Price to the Subscription Agent will be at the election and risk of the Rights
holder, but, if sent by mail, it is recommended that they be sent by registered
mail, properly insured, with return receipt requested, and that a sufficient
number of days be allowed to ensure delivery to the Subscription Agent and the
clearance of any checks sent in payment of the Exercise Price prior to 5:00
p.m., New York City time, on the Expiration Date.
5. SPECIAL PROVISIONS RELATING TO THE DELIVERY OF RIGHTS THROUGH THE
DEPOSITORY TRUST COMPANY.
In the case of holders of Rights that are held of record through The
Depository Trust Company ("DTC"), exercises of the Subscription Privilege may
be effected by instructing DTC to transfer Rights (such Rights being "DTC
Exercised Rights") from the DTC account of such holder to the DTC account of
the Subscription Agent, together with payment of the Subscription Price for
each Common Share subscribed for pursuant to the Subscription Privilege.
6. SUBSTITUTE FORM W-9.
Each Rights holder who elects to exercise Rights should provide the
Subscription Agent with a correct Taxpayer Identification Number ("TIN") on
Substitute Form W-9, which is included as Exhibit A hereto. Additional copies
of Substitute Form W-9 may be obtained upon request from the Subscription Agent
or the Information Agent indicated above. Failure to provide the information
on the form may subject such holder to 31% federal income tax withholding with
respect to dividends or other distributions that may be paid by the Company on
shares of Common Stock purchased upon the exercise of Rights.
EXHIBIT A
IMPORTANT TAX INFORMATION
Under United States federal income tax law, dividend payments and other
distributions that may be made by the Company on Common Shares issued upon the
exercise of Rights may be subject to backup withholding, and each Rights holder
who either exercises Rights should provide the Subscription Agent (as the
Company's agent) with such Rights holder's correct taxpayer identification
number on Substitute Form W-9 below. If such Rights holder is an individual,
the taxpayer identification number is his social security number If the
Subscription Agent, which is also the transfer agent for the Company, is not
provided with the correct taxpayer identification number in connection with
such payments, the Rights holder may be subject to a $50 penalty imposed by the
Internal Revenue Service.
Exempt Rights holders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In general, in order for a foreign individual to
qualify as an exempt recipient, such Rights holder must submit a statement,
signed under the penalties of perjury, attesting to that individual's exempt
status. Such statements can be obtained from the Subscription Agent. See the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional instructions.
If backup withholding applies, the Company or the Subscription Agent, as
the case may be, will be required to withhold 31 percent of any such payments
made to the Rights holder. Backup withholding is not an additional tax.
Rather, the 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.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding, a Rights holder is required to notify the
Subscription Agent of his correct taxpayer identification number by completing
the form below certifying that the taxpayer identification number provided on
Substitute Form W-9 is correct (or that such Rights holder is awaiting a
taxpayer identification number).
WHAT NUMBER TO GIVE THE SUBSCRIPTION AGENT
Each Rights holder is required to give the Subscription Agent the social
security number or employer identification number of the record owner of the
Rights. If the Rights are in more than one name or are not in the name of the
actual owner, consult the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional guidelines on which
number to report.
PAYER'S NAME: Chemical Mellon Shareholder Services, L.L.C.
SUBSTITUTE PART I - Taxpayer Part II -
FORM W-9 Identification No. Exempt from
Backup
Department of the Enter your taxpayer Withholding
identification (see enclosed
number in the appropriate Guidelines)
box. For most individuals, _______________
this is your social security Social Security
number. If you do not have a Number
Social Security number, see
How to Obtain a "TIN" in
the enclosed Guidelines.
Payer's Request Note: If the account is in
Taxpayer more than one name, see the _______________
Identification chart on page 2 of enclosed Employer
Number (TIN) Guidelines to determine what Identification
number to give.
Certification - Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct 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 ("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.
Certification Guidelines - You must cross out item (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 were subject to backup withholding you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out item (2).
SIGNATURE ____________________________________ DATE_______________, 1996
NOTE: FAILURE TO COMPLETE THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31%
OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-
9 FOR ADDITIONAL DETAILS.
GUIDELINES FOR CERTIFICATE 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. Employer 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 NAME AND
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY NUMBER
1. Individual The individual
2. Two or more individuals The actual owner of the account
(joint account) or, if combined funds, the
first
individual on the account (1)
3. Custodian account of a minor The minor (2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-trustee (1)
trust (grantor is also
trustee)
b. the so-called trust account The actual owner(1)
that is not a legal or valid
trust under State law
5. Sole proprietorship The owner (4)
GIVE THE NAME AND
FOR THIS TYPE OF ACCOUNT: EMPLOYER IDENTIFICATION NUMBER OF
6. A valid trust, estate or pension Legal entity (do not furnish the
trust identification number of the
personal representative or trustee
unless the legal entity itself is
not designates in the account
title (3)
7. Corporation The corporation
8. Association, club, religious, The organization
charitable, education or other
tax-exempt organization
9. Partnership The partnership
10. A broker or registered nominee The broker or nominee
11. 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) List first and circle the name of the legal trust, estate or pension
trust.
(4) Show the name of the owner.
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, or a custodial account under section
403(b)(7).
- 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 dealer in securities or commodities registered in the United States
or a possession of the United States.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
Payment 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
United States and which have at least one non-resident partner.
- Payments of patronage dividends where the amount received is not paid
in money.
- Payments made by 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 nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
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, SIGN AND DATE
THE FORM AND RETURN IT TO THE PAYER.
Payments that are not subject to information reporting are also not
subject to backup withholding. For details, see the regulations under sections
6041, 6041(a), 6042, 6044, 6045, 6049, 6050A and 6060N. Privacy Act Notice.
Section 6109 requires most recipients of dividends, interest or other payments
to give taxpayer identification numbers to payers who must report the payments
to IRS. The IRS uses the numbers for identification purposes, and to help
verify the accuracy of your tax return. Payers must be given the numbers
whether or not recipients are required to file tax returns. Payers must
generally withhold 31% of taxable interest, dividends, and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. Certain penalties may also apply.
PENALTIES
(1) Penalty for Failure to Furnish Taxpayer Identification Number. If
you fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding. If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. Falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX CONSULTANT
OR THE INTERNAL REVENUE SERVICE