Exhibit (a)(1)(ii)
CONSENT AND LETTER OF TRANSMITTAL
Offer of Premium for Conversion of Outstanding
11 7/8% Mandatorily Convertible Trust Preferred Securities
of
Allegheny Capital Trust I
(CUSIP No. 017271AA5)
into
Shares of Authorized but Unissued Common Stock
of
Allegheny Energy, Inc.
and
Solicitation of Consents for Proposed Amendments to the
Indenture Governing Allegheny Energy, Inc.'s 11 7/8% Notes due 2008
PURSUANT TO, AND SUBJECT TO THE TERMS AND CONDITIONS DESCRIBED IN,
THE OFFERING CIRCULAR DATED MARCH 23, 2005.
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| THE OFFER AND CONSENT SOLICITATION WILL EXPIRE ON APRIL 20, 2005, AT |
| 12:00 MIDNIGHT, NEW YORK CITY TIME, OR AT SUCH OTHER TIME IF THIS DATE |
| IS EXTENDED OR TERMINATED BY ALLEGHENY ENERGY, INC. AND ALLEGHENY |
| CAPITAL TRUST I (THE "EXPIRATION DATE"). |
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The Conversion Agent for the offer and consent solicitation is:
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
By Facsimile: 1-302-636-4145
Attention: Alisha Clendaniel
To Confirm by Telephone: (302) 636-6470
Toll free: (800) 441-7120 ext. 6470
DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS CONSENT AND LETTER OF
TRANSMITTAL VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE VALID DELIVERY.
Capitalized terms used but not defined herein shall have the same
meaning given them in the offering circular dated March 23, 2005 (the "Offering
Circular") of Allegheny Energy, Inc., a Maryland corporation ("Allegheny"), and
Allegheny Capital Trust I, a statutory business trust that was formed under the
laws of the state of Delaware and a wholly-owned subsidiary of Allegheny (the
"Trust").
This Consent and Letter of Transmittal (the "Consent and Letter of
Transmittal") need not be completed if (a) the 11 7/8% Mandatorily Convertible
Trust Preferred Securities due 2008 (the "Preferred Securities") are being
tendered by book-entry transfer to the account maintained by the Conversion
Agent at The Depository Trust Company ("DTC") pursuant to the procedures set
forth in the Offering Circular under "The Offer and Consent Solicitation --
Procedures for Tendering and Delivering of Consents" and (b) an "agent's
message" is delivered to the Conversion Agent as described in the Offering
Circular under "The Offer and Consent Solicitation -- Procedures for Tendering
and Delivering of Consents."
HOLDERS NOT REQUIRED TO COMPLETE THE CONSENT AND LETTER OF TRANSMITTAL
ARE STILL REQUIRED TO VALIDLY COMPLETE AND SUBMIT A NOTICE OF CONVERSION, THE
FORM OF WHICH IS ATTACHED AS ANNEX B TO THE OFFERING CIRCULAR (THE "NOTICE OF
CONVERSION").
THE INSTRUCTIONS ACCOMPANYING THIS CONSENT AND LETTER OF TRANSMITTAL
SHOULD BE READ CAREFULLY BEFORE THIS CONSENT AND LETTER OF TRANSMITTAL IS
COMPLETED. If Preferred Securities are registered in different names, a
separate Consent and Letter of Transmittal must be submitted for each
registered owner. See Instruction 2 below.
This Consent and Letter of Transmittal is being delivered to you in
connection with Allegheny's offer to holders of the Preferred Securities of the
right to receive for each $1,000 in Liquidation Amount of Preferred Securities
tendered, 83.33 shares of the Allegheny's Common Stock, subject to any
applicable anti-dilution adjustments and $160.00 in cash, which represents (i)
the remaining regularly scheduled distributions from March 15, 2005 through
June 15, 2006 (the first date on which the Allegheny may redeem any or all of
the 11 7/8% Notes irrespective of the aggregate principal amount of 11 7/8%
Notes outstanding, and the date that the Preferred Securities become subject to
the mandatory conversion provisions of the Declaration of Trust), (ii) an
incentive amount and (iii) a consent payment, if such holders agree to convert
their Preferred Securities into shares of the Allegheny's Common Stock during
the period commencing on the date of the Offering Circular through the
Expiration Date. The undersigned agrees and acknowledges that, by the execution
and delivery hereof no later than 12:00 midnight, New York City time, on the
Expiration Date, the undersigned makes and provides the consent, with respect
to the Preferred Securities tendered hereby, to the Proposed Amendments to the
Indenture. The undersigned understands that the consent provided hereby shall
remain in full force and effect unless such consent is revoked in accordance
with the procedures set forth in the Offering Circular and this Consent and
Letter of Transmittal.
The offer and consent solicitation is made upon the terms and subject
to the conditions contained in the Offering Circular.
All tenders of Preferred Securities and the deliveries of the related
consents pursuant to the offer and consent solicitation must be received by
the Conversion Agent no later than 12:00 midnight, New York City time, on the
Expiration Date. Allegheny and the Trust will notify holders of the Preferred
Securities of any extension by means of a press release or other public
announcement prior to 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date.
The offer and consent solicitation is subject to certain conditions
precedent as set forth in the Offering Circular under the caption "The Offer
and Consent Solicitation -- Conditions to the Offer and Consent Solicitation."
This Consent and Letter of Transmittal is to be completed by a holder
of Preferred Securities if a tender is to be made by book-entry transfer to the
account maintained by the Conversion Agent at DTC pursuant to the procedures
set forth in the Offering Circular under "The Offer and Consent Solicitation --
Procedures for Tendering Preferred Securities and Delivering Consents," but
only if an agent's message is not delivered through DTC's Automated Tender
Offer Program ("ATOP"). Tenders by book-entry transfer may also be made through
ATOP. DTC participants that are accepting the offer and consent solicitation
must transmit their acceptance to DTC through ATOP. DTC will then verify the
acceptance and execute a book-entry delivery to the Conversion Agent's account
at DTC. DTC will also send an agent's message to the Conversion Agent for its
acceptance. The agent's message will state that DTC has received an express
acknowledgment from the tendering holder of Preferred Securities, which
acknowledgment will confirm that the holder of Preferred Securities received
and agrees to be bound by, and makes each of the representations and warranties
contained in, this Consent and Letter of Transmittal, and that Allegheny and
the Trust may enforce this Consent and Letter of Transmittal against the holder
of Preferred Securities. Delivery of the agent's message by DTC will satisfy
the terms of the offer and consent solicitation in lieu of execution and
delivery of this Consent and Letter of Transmittal by the DTC participant
identified in the agent's message. Accordingly, this Consent and Letter of
Transmittal need not be completed by a holder tendering through ATOP. HOWEVER,
HOLDERS OF PREFERRED SECURITIES TENDERING THROUGH ATOP ARE STILL REQUIRED TO
VALIDLY COMPLETE AND SUBMIT THE NOTICE OF CONVERSION.
Holders of Preferred Securities whose certificates are not immediately
available, or who are unable to deliver their certificates or confirmation of
the book-entry tender of their Preferred Securities into the Conversion Agent's
account at DTC and all other documents required by this Consent and Letter of
Transmittal to the Conversion Agent no later than 12:00 midnight, New York City
time, on the Expiration Date must tender their Preferred Securities according
to the guaranteed delivery procedures set forth in the Offering Circular under
the caption "The Offer and Consent Solicitation -- Guaranteed Delivery."
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
CONVERSION AGENT.
The method of delivery of Preferred Securities, Consents and Letters
of Transmittal, Notices of Conversion and all other required documents are at
the election and risk of the holders. If such delivery is by mail it is
recommended that registered mail properly insured, with receipt requested, be
used. In all cases, sufficient time should be allowed to assure timely
delivery. Neither the Consent and Letter of Transmittal, the Preferred
Securities or the Notice of Conversion should be sent to Allegheny or the
Trust.
The undersigned has completed, executed and delivered this Consent and
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the offer and consent solicitation.
List below the Preferred Securities to which this Consent and Letter
of Transmittal relates. If Preferred Securities are registered in different
names, a separate Consent and Letter of Transmittal must be submitted for each
registered owner. See Instruction 2 below.
Description of Preferred Securities
Item 1.
Name(s) and address(es) of registered Holder(s) of Preferred Securities or name
of DTC participant and DTC participant's DTC account number in
which the Preferred Securities are held.
(Please fill in blanks)
Liquidation Amount
Aggregate Tendered and as to
Certificate Liquidation Amount which Consents Are
Number(s) (1) Represented (2) Given (3)
Name $ $
Address
City, State & Zip
Name $ $
Address
City, State & Zip
Name $ $
Address
City, State & Zip
Total Liquidation amount of Preferred $ $
Securities tendered
(1) Need not be completed by holders of Preferred Securities tendering by
book-entry transfer.
(2) Unless otherwise indicated in the column labeled "Liquidation Amount
Tendered and as to which Consents Are Given" and subject to the terms and
conditions set forth in the Offering Circular, a holder will be deemed to have
tendered the entire aggregate amount indicated in the column labeled "Aggregate
Liquidation Amount Represented".
(3) For a valid tender, a consent must be given for all Preferred Securities
tendered. If no entry is made in this box, consents will be deemed to be given
for all Preferred Securities tendered on or before the Expiration Date for the
offer and consent solicitation.
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges that he or she has
received the Offering Circular and this Consent and Letter of Transmittal which
have been delivered to you in connection with Allegheny's offer to pay the
Conversion Amount for the conversion of the Preferred Securities into shares of
Common Stock if you tender Preferred Securities for conversion into Common
Stock during the period commencing on the date of the Offering Circular through
12:00 midnight, New York City time, on April 20, 2005, or such other time if
this date is extended by the Trust and Allegheny and on the terms and subject
to the conditions of the Offering Circular. Capitalized terms not defined
herein shall have the respective meanings ascribed to them in the Offering
Circular.
Upon the terms and subject to the conditions of the offer and consent
solicitation, the undersigned hereby tenders to the Conversion Agent the
aggregate Liquidation Amount of Preferred Securities indicated above pursuant
to the offer and consent solicitation.
Subject to, and effective upon, the acceptance of Preferred Securities
tendered for conversion hereby, by executing and delivering this Consent and
Letter of Transmittal (or agreeing to the terms of this Consent and Letter of
Transmittal pursuant to an agent's message) and the Notice of Conversion, the
undersigned: (i) irrevocably sells, assigns, and transfers to, or upon the
order of, Allegheny and the Trust all right, title and interest in and to, and
all claims in respect of or arising or having arisen as a result of the
undersigned's status as a holder of the Preferred Securities tendered thereby;
(ii) waives any and all rights with respect to the Preferred Securities
tendered, (iii) releases and discharges Allegheny and the Trust with respect to
the Preferred Securities from any and all claims such holder may have, now or
in the future, arising out of or related to the Preferred Securities and (iv)
consents to the Proposed Amendments. The undersigned acknowledges and agrees
that the tender of Preferred Securities and delivery of the related consents to
the Proposed Amendments made hereby may not be withdrawn except in accordance
with the procedures set forth in the Offering Circular.
The undersigned represents and warrants that it has full power and
authority to legally tender, sell, assign and transfer the Preferred Securities
tendered hereby and to acquire the Common Stock issuable upon the conversion of
such tendered Preferred Securities, and that, when and if the Preferred
Securities tendered hereby are accepted for conversion, Allegheny and the Trust
will acquire good and unencumbered title to the tendered Preferred Securities
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim or right. The undersigned also warrants that it
will, upon request, execute and deliver any additional documents deemed by the
Conversion Agent, Allegheny or the Trust to be necessary or desirable to
transfer ownership of such Preferred Securities on the account books maintained
by DTC.
The undersigned hereby irrevocably constitutes and appoints the
Conversion Agent as the true and lawful agent and attorney-in-fact of the
undersigned (with full knowledge that the Conversion Agent also acts as the
agent of Allegheny and the Trust) with respect to such Preferred Securities,
with full power of substitution and re-substitution (such power-of-attorney
being deemed to be an irrevocable power coupled with an interest) to: (i)
present such Preferred Securities and all evidences of transfer and
authenticity to, or transfer ownership of, such Preferred Securities on the
account books maintained by the DTC to, or upon the order of, Allegheny and the
Trust, (ii) present such Preferred Securities for transfer of ownership on the
books of Allegheny and the Trust, (iii) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Preferred Securities, and
(iv) deliver to the Indenture Trustee and the Institutional Trustee this
Consent and Letter of Transmittal and the Notice of Conversion as evidence of
the undersigned's consent to the Proposed Amendments, and as certification that
validly tendered and not revoked consents from holders of not less than holders
of at least a Majority in Liquidation Amount of the Preferred Securities (the
"Requisite Percentage") to the Proposed Amendments or consents of 75% in
Liquidation Amount of the Preferred Securities for the Additional Amendment,
duly executed by holders of such Preferred Securities, have been received, all
in accordance with the terms and conditions of the offer and the consent
solicitation as described in the Offering Circular. Allegheny and the Trust
currently intend to consummate the offer and consent solicitation if holders of
the Requisite Percentage validly tender and do not withdraw their Preferred
Securities, even if the required consent to effectuate the Additional Amendment
is not achieved.
The undersigned acknowledges that the issuance of Common Stock upon
conversion of the Preferred Securities is exempt from registration pursuant to
Section 3(a)(9) of the Securities Act of 1933, as amended. Allegheny and the
Trust have no contract, arrangement or understanding relating to, and will not,
directly or indirectly, pay any commission or other remuneration to any broker,
dealer, salesperson, agent or any other person for soliciting tenders in the
offer and consent solicitation. In addition, neither Allegheny's or the Trust's
financial advisor or any broker, dealer, salesperson, agent or any other
person, is engaged or authorized to express any statement, opinion,
recommendation or judgment with respect to the relative merits and risks of the
offer and consent solicitation.
All authority conferred or agreed to be conferred in this Consent and
Letter of Transmittal shall survive the death or incapacity of the undersigned
and all obligations of the undersigned hereunder shall be binding upon the
successors, assigns, heirs, executors, administrators and legal representatives
of the undersigned.
The offer and consent solicitation is subject to certain conditions as
set forth in the Offering Circular under the caption "The Offer and Consent
Solicitation -- Conditions to the Offer and Consent Solicitation." The
undersigned recognizes that as a result of these conditions (which may be
waived by Allegheny and the Trust, in whole or in part, in their sole
discretion, as more particularly set forth in the Offering Circular), Allegheny
and the Trust may not be required to accept all or any of the Preferred
Securities tendered hereby.
Allegheny and the Trust reserve the right to extend or terminate the
offer and consent solicitation, if any of the conditions listed in "The Offer
and Consent Solicitation -- Conditions to the Offer and Consent Solicitation"
occur, or the occurrence thereof has not been waived by Allegheny and the Trust
in their sole discretion.
The undersigned understands that a valid tender of Preferred
Securities not made in acceptable form and risk of loss therefore does not pass
until receipt by the Conversion Agent of this Consent and Letter of Transmittal
(or an agent's message in lieu thereof) or a facsimile hereof, duly completed,
dated and signed, together with all accompanying evidences of authority,
including the Notice of Conversion and any other required documents and
signature guarantees in form satisfactory to Allegheny and the Trust (which may
delegate power in whole or in part to the Conversion Agent). All questions as
to validity, form and eligibility of any tender of the Preferred Securities
hereunder (including time of receipt) and acceptance of tenders and withdrawals
of Preferred Securities will be determined by Allegheny and the Trust in their
sole judgment (which may delegate power in whole or in part to the Conversion
Agent) and such determination shall be final and binding.
In the event that the "Special Issuance Instructions" box is
completed, the undersigned hereby understands and acknowledges that any
Preferred Securities tendered but not accepted in the offer and consent
solicitation will be issued in the name(s), and delivered by book-entry
transfer to the DTC account number(s), indicated in such box. However, the
undersigned understands and acknowledges that Allegheny and the Trust have no
obligation pursuant to the "Special Issuance Instructions" box to transfer any
Preferred Securities from the name(s) of the registered holders thereof to the
person indicated in such box, if the offerors do not accept any Preferred
Securities so tendered. The undersigned acknowledges and agrees that Allegheny,
the Trust or the Conversion Agent may, in appropriate circumstances, defer
effecting transfer of Preferred Securities, and may retain such Preferred
Securities, until satisfactory evidence of payment of transfer taxes payable on
account of such transfer by the undersigned, or exemption therefrom, is
received by the Conversion Agent.
Your bank or broker can assist you in completing this form. The
instructions included with this Consent and Letter of Transmittal must be
followed. Questions and requests for assistance or for additional copies of the
Offering Circular and this Consent and Letter of Transmittal may be directed to
the Conversion Agent or Information Agent, whose addresses and telephone
numbers appear on the final page of this Consent and Letter of Transmittal. See
Instruction 6 below.
METHOD OF DELIVERY
[ ] CHECK HERE IF TENDERED PREFERRED SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE CONVERSION
AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution_______________________________________________
Account Number______________________________________________________________
Transaction Code Number ____________________________________________________
Signature(s) of Holder(s) of Preferred Securities
Must be signed by registered holders of Preferred Securities exactly
as such participant's name appears on a security position listing as the owner
of Preferred Securities, or by person(s) authorized to become holder(s) by
endorsements and documents transmitted with this Consent and Letter of
Transmittal. If signing is by attorney, executor, administrator, trustee or
guardian, agent or other person acting in a fiduciary or representative
capacity, please set forth full title. See Instructions 2 & 3.
Date_______________________________________________________________________
Name(s)____________________________________________________________________
Capacity __________________________________________________________________
Address (Include Zip Code) ________________________________________________
DTC Account to which Common Stock should be delivered _____________________
Tax Identification or Social Security Number (See Instruction 7) __________
Telephone Number (Include Area Code) ______________________________________
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instruction 2)
To be completed ONLY if Preferred Securities not tendered for
conversion are to be returned by credit to a DTC account number other than the
account number specified above.
Issue Preferred Securities to:
Name__________________________________________________________________
DTC Account #_________________________________________________________
Address (Including Zip Code)__________________________________________
(Tax Identification or Social Security Number)
(See Instruction 7)
MEDALLION SIGNATURE GUARANTEE (SEE INSTRUCTIONS 2 & 3 BELOW)
(CERTAIN SIGNATURES MUST BE GUARANTEED BY AN
ELIGIBLE INSTITUTION)
Name of Eligible Institution Guaranteeing Signatures _________________
Address (Including Zip Code) _________________________________________
Telephone Number (Including Area Code) _______________________________
Authorized Signature _________________________________________________
Printed Name _________________________________________________________
Title ________________________________________________________________
Date____________________________
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER AND
CONSENT SOLICITATION
1. Delivery of Consent and Letter of Transmittal. This Consent and
Letter of Transmittal is to be completed by holders of Preferred Securities
either if certificates are to be forwarded herewith or if tenders are to be
made pursuant to the procedures for delivery by book-entry transfer set forth
in "The Offer and Consent Solicitation -- Tender of Preferred Securities held
through DTC" section of the Offering Circular and an agent's message is not
delivered. Tenders by book-entry transfer also may be made by delivering an
agent's message in lieu of this Consent and Letter of Transmittal. The term
"agent's message" means a message, transmitted by DTC to and received by the
Conversion Agent and forming a part of a book-entry confirmation, which states
that DTC has received an express acknowledgment from the tendering participant,
which acknowledgment states that such participant has received and agrees to be
bound by, and makes the representations and warranties contained in, the
Consent and Letter of Transmittal and that Allegheny and the Trust may enforce
the Consent and Letter of Transmittal against such participant. Certificates
for all physically tendered Preferred Securities, or book-entry confirmation,
as the case may be, as well as a properly completed and duly executed Consent
and Letter of Transmittal (or manually signed facsimile hereof or agent's
message in lieu thereof) and any other documents required by this Consent and
Letter of Transmittal, must be received by the Conversion Agent at the address
set forth herein no later than 12:00 midnight, New York City time, on the
Expiration Date, or the tendering holder must comply with the guaranteed
delivery procedures set forth below. Preferred Securities tendered hereby must
be in denominations of $1,000 Liquidation Amount or any integral multiple
thereof. However, a holder of Preferred Securities may not tender and convert
Preferred Securities with an aggregate Liquidation Amount of less than $1,000
unless such Preferred Securities represent all of such holder's Preferred
Securities.
Holders whose certificates for Preferred Securities are not
immediately available or who cannot deliver their certificates and all other
required documents to the Conversion Agent before the Expiration Date, or who
cannot complete the procedure for book-entry transfer on a timely basis, may
tender their Preferred Securities pursuant to the guaranteed delivery
procedures set forth in "The Offer and Consent Solicitation --Guaranteed
Delivery" section of the Offering Circular. Pursuant to these procedures, (i)
the tender must be made through an eligible institution, (ii) no later than
12:00 midnight, New York City time, on the Expiration Date, the Conversion
Agent must receive from the eligible institution a properly completed and duly
executed Consent and Letter of Transmittal (or a facsimile thereof) and Notice
of Guaranteed Delivery, substantially in the form provided by Allegheny and the
Trust (by facsimile transmission, mail or hand delivery), setting forth the
name and address of the holder of Preferred Securities and the amount of
Preferred Securities tendered, stating that the tender is being made thereby
and guaranteeing that within two business days after the date of execution of
the Notice of Guaranteed Delivery, the certificates for all physically tendered
Preferred Securities, in proper form for transfer, or a book-entry
confirmation, as the case may be, together with a properly completed and duly
executed Consent and Letter of Transmittal (or facsimile thereof or agent's
message in lieu thereof) with any required signature guarantees and any other
documents required by this Consent and Letter of Transmittal will be deposited
by the eligible institution with the Conversion Agent, and (iii) the
certificates for all physically tendered Preferred Securities, in proper form
for transfer, or a book-entry confirmation, as the case may be, together with a
properly completed and duly executed Consent and Letter of Transmittal (or
facsimile thereof or agent's message in lieu thereof) with any required
signature guarantees and all other documents required by this Consent and
Letter of Transmittal, or a properly transmitted agent's message, are received
by the Conversion Agent within two business days after the date of execution of
the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL, THE
NOTICE OF CONVERSION AND ALL OTHER REQUIRED DOCUMENTS TO THE CONVERSION AGENT,
INCLUDING DELIVERY THROUGH DTC OF ANY ACCEPTANCE OF AN AGENT'S MESSAGE
TRANSMITTED THROUGH DTC'S AUTOMATED TENDER PROGRAM, IS AT THE ELECTION AND RISK
OF THE TENDERING HOLDER OF PREFERRED SECURITIES. IF SUCH DELIVERY IS MADE BY
MAIL, IT IS SUGGESTED THAT THE TENDERING HOLDER USE PROPERLY INSURED,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED AND THAT SUFFICIENT TIME BE
ALLOWED TO ASSURE TIMELY DELIVERY. NO ALTERNATIVE, CONDITIONAL OR CONTINGENT
TENDERS OF PREFERRED SECURITIES WILL BE ACCEPTED. EXCEPT AS OTHERWISE PROVIDED
BELOW, DELIVERY WILL BE MADE WHEN ACTUALLY RECEIVED BY THE CONVERSION AGENT.
THIS CONSENT AND LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS SHOULD
BE SENT ONLY TO THE CONVERSION AGENT, NOT TO ALLEGHENY, THE TRUST OR DTC.
Preferred Securities tendered pursuant to the offer and consent
solicitation may be withdrawn at any time prior to 12:00 midnight, New York
City time, on the Expiration Date, or such other time if this date is extended
by the Trust and Allegheny, in which case tenders of Preferred Securities may
be withdrawn under the conditions described in the Offering Circular under the
caption "The Offer and Consent Solicitation -- Terms of the Offer and Consent
Solicitation" In order to be valid, a notice of withdrawal of tendered
Preferred Securities must comply with the requirements set forth in the
Offering Circular under the caption "The Offer and Consent Solicitation --
Withdrawal of Tenders."
2. Signatures on Consent and Letter of Transmittal, Powers and
Endorsements. This Consent and Letter of Transmittal must be signed by or on
behalf of the registered holder(s) of the Preferred Securities tendered hereby.
The signature(s) on this Consent and Letter of Transmittal must be exactly the
same as the name(s) that appear(s) on the security position listing of DTC in
which such holder of Preferred Securities is a participant, without alteration
or enlargement or any change whatsoever. IN ALL OTHER CASES, ALL SIGNATURES ON
THIS CONSENT AND LETTER OF TRANSMITTAL MUST BE GUARANTEED BY A MEDALLION
SIGNATURE GUARANTOR.
If any of the Preferred Securities tendered hereby are registered in
the name of two or more holders, all such holders must sign this Consent and
Letter of Transmittal. If this Consent and Letter of Transmittal or any
Preferred Securities or 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 Allegheny and the Trust, proper
evidence satisfactory to Allegheny and the Trust of its authority so to act
must be submitted with this Consent and Letter of Transmittal.
3. Guarantee of Signatures. Except as otherwise provided below, all
signatures on a Consent and Letter of Transmittal, a Notice of Conversion or a
notice of withdrawal must be guaranteed by a recognized participant in the
Securities Transfer Agents Medallion Program or the Stock Conversion Medallion
Program. Signatures on this Consent and Letter of Transmittal need not be
guaranteed if:
o this Consent and Letter of Transmittal is signed by a participant
in DTC whose name appears on a security position listing of DTC
as the owner of the Preferred Securities and the holder(s) has
not completed the portion entitled "Special Issuance
Instructions" on the Consent and Letter of Transmittal; or
o the Preferred Securities are tendered for the account of an
Eligible Guarantor Institution (as defined below).
If this Consent and Letter of Transmittal is not signed by the holder,
the holder must transmit a separate, properly completed power with this Consent
and Letter of Transmittal (in either case, executed exactly as the name(s) of
the participant(s) appear(s) on such security position listing), with the
signature on the endorsement or power guaranteed by a Medallion Signature
Guarantor, unless such powers are executed by an Eligible Guarantor Institution
(as defined below).
An Eligible Guarantor Institution (as defined in Rule 17Ad-15
promulgated under the Securities Conversion Act of 1934, as amended (the
"Conversion Act")), means:
(i) Banks (as defined in Section 3(a) of the Federal Deposit
Insurance Act);
(ii) Brokers, dealers, municipal securities dealers,
municipal securities brokers, government securities dealers, and
government securities brokers, as those terms are defined under the
Conversion Act;
(iii) Credit unions (as that term is defined in Section
19b(l)(A) of the Federal Reserve Act);
(iv) National securities Conversions, registered, securities
associations, and clearing agencies, as those terms are used under the
Conversion Act; and
(v) Savings associations (as that term is defined in Section
3(b) of the Federal Deposit Insurance Act).
For a correction of name or a change in name which does not involve a
change in ownership, you may proceed as follows: for a change in name by
marriage, etc., this Consent and Letter of Transmittal should be signed, e.g.,
"Mary Doe, now by marriage, Mary Jones." For a correction in name, this Consent
and Letter of Transmittal should be signed, e.g., "James E. Brown, incorrectly
inscribed as J. E. Brown." In any such case, the signature on this Consent and
Letter of Transmittal must be guaranteed as provided above, and the holder must
complete the Special Issuance Instructions above.
You should consult your own tax advisor as to possible tax
consequences resulting from the issuance of the Common Stock, as described
above, in a name other than that of the registered holder(s) of the tendered
Preferred Securities.
4. Transfer Taxes. Allegheny will pay all transfer taxes, if any,
applicable to the transfer and conversion of Preferred Securities in the offer
and consent solicitation. If transfer taxes are imposed for any other reason,
the amount of those transfer taxes, whether imposed on the registered holder or
any other persons, will be payable by the tendering holder. Other reasons
transfer taxes could be imposed include:
o if the Common Stock in book-entry form is to be registered in the
name of any person other than the person signing this Consent and
Letter of Transmittal; or
o if tendered Preferred Securities are registered in the name of
any person other than the person signing this Consent and Letter
of Transmittal.
If satisfactory evidence of payment of or exemption from those
transfer taxes is not submitted with the Consent and Letter of Transmittal, the
amount of those transfer taxes will he billed directly to the tendering holder
and/or withheld from any payments due with respect to the Preferred Securities
tendered by such holder.
5. Validity of Tender; Irregularities. All questions as to validity,
form and eligibility of any tender of the Preferred Securities hereunder will
be determined by Allegheny and the Trust, in their sole judgment (which may
delegate power in whole or in part to the Conversion Agent), and such
determination shall be final and binding. Allegheny and the Trust reserve the
right to waive any irregularities or defects in the tender of any Preferred
Securities and their interpretations of the terms and conditions of this
Consent and Letter of Transmittal (including these instructions) with respect
to such irregularities or defects shall be final and binding. A tender will not
be deemed to have been made until all irregularities have been cured or waived.
6. Additional Copies. Additional copies of this Consent and Letter of
Transmittal may be obtained from the Information Agent at the address listed
below.
7. Substitute Form W-9. Under U.S. federal income tax law, each
tendering holder is required to either (i) provide its correct taxpayer
identification number ("TIN") by completing the copy of the Substitute Form W-9
attached to this Letter of Transmittal, certifying that (1) it is a "United
States person" (as defined in section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended (the "Code")), (2) the TIN provided is correct (or that
such U.S. Holder is awaiting a TIN) and (3) that it is exempt from backup
withholding because (a) it has not been notified by the Internal Revenue
Service ("IRS") that it is subject to backup withholding as a result of a
failure to report all interest or dividends, or (b) it has been notified by the
IRS that it is no longer subject to backup withholding or (ii) otherwise
establish an exemption. Failure to provide the information on the Substitute
Form W-9 may subject the tendering holder to a $50 penalty imposed by the IRS
and backup withholding at a rate of 28% on the cash received pursuant to the
offer and consent solicitation. If backup withholding results in an overpayment
of taxes, a refund may be obtained.
Certain tendering holders (including, among others, all corporations
and certain foreign individuals) are exempt recipients not subject to backup
withholding on the receipt of cash pursuant to the offer and consent
solicitation. In order for a foreign individual to qualify for this exemption,
it must either (i) submit a properly completed IRS Form W-8 BEN or other Form
W-8 to the Conversion Agent, certifying under penalties of perjury to the
tendering holder's exempt status or (ii) otherwise establish an exception. See
the enclosed copy of the Substitute Form W-9, Request for Taxpayer
Identification Number and Certification, and the Instructions to Form W-9 for
additional instructions. To avoid possible erroneous backup withholding, exempt
tendering holders, while not required to file an Substitute Form W-9, should
complete and return the Substitute Form W-9 and check the "Exempt from backup
withholding" box on its face.
SEE THE ENCLOSED SUBSTITUTE FORM W-9, REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER AND CERTIFICATION, FOR ADDITIONAL INFORMATION AND
INSTRUCTIONS.
8. Consents to Proposed Amendments. If you tender your Preferred
Securities, you will be deemed to have consented to the Proposed Amendments
described in the Offering Circular to the Indenture. A holder may not consent
to the Proposed Amendments without tendering the Preferred Securities related
thereto.
9. Withdrawal of Tenders and Revocation of Consents. A valid
withdrawal of tendered Preferred Securities made on or prior to the Expiration
Date will constitute a concurrent valid revocation of such holder's related
consent to the Proposed Amendments. A holder may not validly revoke a consent
unless such holder validly withdraws such holder's previously tendered
Preferred Securities. Tenders of Preferred Securities may be validly withdrawn
if the offer is terminated without any Preferred Securities being tendered
thereunder. In the event of a termination of the offer, the Preferred
Securities tendered pursuant to the Offer and Consent Solicitation will be
promptly returned to the tendered holder, the Proposed Amendments will not
become operative and the consents to such Proposed Amendments will be deemed
revoked.
For a withdrawal of tendered Preferred Securities, (and a concurrent
revocation of consents to the Proposed Amendments) to be effective, a written
or facsimile transmission notice of withdrawal or revocation, or a properly
transmitted "Request Message" through ATOP, must be received by the Conversion
Agent no later than 12:00 midnight, New York City time, on the Expiration Date
at its address set forth on the cover of this Consent and Letter of
Transmittal. Any such notice of withdrawal must: (i) specify the name of the
person who tendered the Preferred Securities to be withdrawn, (ii) contain the
description of the Preferred Securities to be withdrawn and identify the
certificate number or numbers shown on the particular certificates evidencing
such Preferred Securities (unless such Preferred Securities were tendered by
book-entry transfer) and the aggregate Liquidation Amount represented by such
Preferred Securities and (iii) (other than a notice transmitted through ATOP)
be signed by the holder of such Preferred Securities in the same manner as the
original signature on the Consent and Letter of Transmittal by which such
Preferred Securities were tendered (including any required signature
guarantees), or be accompanied by (x) documents of transfer sufficient to have
the trustee register the transfer of the Preferred Securities into the name of
the person withdrawing such Preferred Securities (including, in the case of
Preferred Securities tendered by book-entry transfer, the account at DTC to
which such withdrawn Preferred Securities should be credited) and (y) a
properly completed irrevocable proxy authorizing such person to effect such
withdrawal on behalf of such holder. If the Preferred Securities to be
withdrawn have been delivered or otherwise identified to the Conversion Agent,
a signed notice of withdrawal is effective immediately upon written or
facsimile notice of such withdrawal even if physical release is not yet
effected.
Any permitted withdrawal of Preferred Securities (and concurrent
revocation of consents) may not be rescinded. Any Preferred Securities properly
withdrawn will thereafter be deemed not validly tendered and any consents
revoked will be deemed not validly delivered for purposes of the offer and
consent solicitation, provided, however, that withdrawn Preferred Securities
may be re-tendered again by following one of the appropriate procedures
described herein at any time but no later than 12:00 midnight, New York City
time, on the Expiration Date.
All questions as to the validity, form and eligibility (including time
of receipt) of notices of withdrawal will be determined by Allegheny and the
Trust, in their sole discretion (whose determination shall be final and
binding). Neither Allegheny, the Trust, the Conversion Agent, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in any notice of withdrawal of tenders or incur any
liability for failure to give any such notification.
10. Mutilated, Lost, Stolen or Destroyed Certificates. Any holder of
Preferred Securities whose certificates for such Preferred Securities have been
mutilated, lost, stolen or destroyed should write to or telephone Wilmington
Trust Company at the following address or telephone number: Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, (302) 636-6470 or (800) 441-7120 ext. 6470.
11. Requests for Assistance or Additional Copies. Questions relating
to the procedure for tendering Preferred Securities and consenting to the
Proposed Amendments, requests for assistance or additional copies of the
Offering Circular and this Consent and Letter of Transmittal may be directed
to, and additional information about the offer may be obtained from, either the
Conversion Agent or the Information Agent, whose addresses and telephone
numbers appear on the back cover page of this Consent and Letter of
Transmittal.
12. Notice of Conversion. Whether you tender pursuant to book-entry
with DTC or by delivering both the Preferred Securities and this Consent and
Letter of Transmittal to the Conversion Agent, you will be required to properly
execute and deliver a completed Notice of Conversion to the Conversion Agent no
later than 12:00 midnight, New York City time, on the Expiration Date. The
Notice of Conversion is necessary in order for the Conversion Agent to properly
accept the Preferred Securities being tendered and to subsequently convert such
Preferred Securities into Common Stock. The Notice of Conversion requires you
to provide Allegheny with information such as to whom the shares of Common
Stock should be issued and where such shares of Common Stock should be
delivered.
SUBSTITUTE FORM W-9
---------------------------------------------------------------------------------------------------------------
| PAYER'S NAME: |
| ---------------------------------- --------------------------- -----------------------------------------------|
| | | |
| SUBSTITUTE | Part 1 -- PLEASE PROVIDE | ______________________________ |
| | YOUR TIN IN THE BOX AT | Social Security Number |
| FORM W-9 | THE RIGHT OR, IF YOU DO | OR |
| | NOT HAVE A TIN, WRITE | |
| | "APPLIED FOR" AND SIGN | ______________________________ |
|Department of the Treasury | THE CERTIFICATION BELOW. | Taxpayer Identification Number |
|Internal Revenue Service (IRS) | | |
| | | [ ] Exempt |
|Payer's Request for Taxpayer | | |
|Identification Number (TIN) | ------------------------------------------------------------------------- |
| | |
|Please fill in your name and | Part 2 -- Certification -- Under penalties of perjury, I certify that: |
|address below. | |
| | (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), |
|____________________________ | |
| Name | (2) I am not subject to backup withholding either because (a) |
| | I am exempt from backup withholding, (b) I have not been |
|____________________________ | notified by the IRS that I am subject to backup withholding |
| Business Name | as a result of failure to report all interest or dividends, |
| | or (c) the IRS has notified me that I am no longer subject to |
|____________________________ | backup withholding, and |
| Address (number and street) | |
| | (3) I am a U.S. person (as defined for U.S. federal income tax purposes).|
|____________________________ | |
|City, State and Zip Code | |
| | ---------------------------------------------------------------------------|
| | |
| | Certification 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 under reporting 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). If you are |
| | exempt from backup withholding, check the box in Part 1 and see |
| | the enclosed "Guidelines for Certification of Taxpayer |
| | Identification Number on Substitute Form W-9". |
| | |
| | Signature:__________________________________ |
| | Date:_____________ |
---------------------------------- ---------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50
PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP
WITHHOLDING AT A RATE OF 28% ON ANY CASH PAYMENTS MADE TO YOU
PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED "GUIDELINES FOR
REQUEST FOR TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9" FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU WROTE "APPLIED
FOR" ON SUBSTITUTE FORM W-9.
--------------------------------------------------------------------------------------------------------
| |
| CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER |
| |
| I certify under penalties of perjury that a taxpayer identification number has not been |
| issued to me, and either (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 an application in |
| the near future. I understand that until I provide a taxpayer identification number, all |
| reportable payments made to me will be subject to backup withholding, but will be refunded |
| if I provide a certified taxpayer identification number within 60 days. |
| |
| |
| |
| Signature:______________________________ Date:______________________________ |
| |
--------------------------------------------------------------------------------------------------------
THE IRS DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER
THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING.
IF FURTHER INSTRUCTIONS ARE DESIRED, CONTACT THE
CONVERSION AGENT OR INFORMATION AGENT:
Conversion Agent:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
By Facsimile: 1-302-636-4145
Attention: Alisha Clendaniel
By Telephone: (302) 636-6470
Toll free: (800) 441-7120 ext. 6470
Information Agent:
Global Bondholder Services Corporation
65 Broadway - Suite 704
New York, New York 10006
Attention: Corporate Actions
Banks and Brokers call: (212) 430-3774
Toll free: (866) 795-2200